Volume 18, Number 1
Ethical use of Emerging Technologies in Law Practice
By Elliot Eder
A few years ago, people in and out of the profession were sounding a clarion call that small practices were at a technological crossroad: Embrace emerging computer-based technologies, or be left eating the dust of the competing firms that stock up on the latest gizmos, hire technology mavens, and tout themselves as "e" practices wired for the next century.
Considering the pace at which computer technology has changed since then, we're now miles past that techno-interchange. Many law firms barely have begun to climb aboard the technology train. Nevertheless, they are still around, and many are thriving along with the local economy. But some are starting to admit that technology tools are becoming harder to ignore, mainly because their clients have moved ahead. And client expectations probably are the biggest motivating factor for these firms. However, these "latecomers" may be even more confused by mounting choices and state bars' often conflicted reactions to emerging legal technology tools.
What's a Lawyer to Do?
It seems as though every few months, lawyers read about new technology tools, or about new versions of "old standby" tools-the ones that have been around for at least a year! This trend is a real boon for solo and small firm practitioners, because the price keeps dropping for increased sophistication, efficiency, and real-time communication with clients and project teams.
But it also presents a problem-information overload. Faced with so many choices, how can you decide which technology tools make the most sense to run and expand your particular practice? And how can you decide if use of a particular tool presents ethical challenges?
The traditional way to decide might be to wait to see how well a given practice is accepted among lawyers, and whether state bar ethics committees express any reservations about the use of a particular practice tool. But given the pace of technological changes, by waiting for these cycles to run their course, you risk asking a moot question; by the time you receive guidance, there's a next-generation software or replacement technology tool.
Besides, ethics counsel may disagree. One jurisdiction may embrace and encourage a lawyer's use of a technology tool that is frowned on in another jurisdiction. Given the increasingly borderless qualities of modern technology, these sharply conflicting ethics decisions don't always provide helpful guidance. So what is a lawyer to do?
At a practical level, three strategies come to mind when a lawyer considers the ethical use of emerging technology: embrace the new technology tool without hesitation; reject the new tool without exception; or apply common sense and flexibility to be responsive to client needs, practice demands, and ethical concerns. The very phrasing of these strategies suggests which one is recommended-door number three.
A brief look at how the legal community has handled the explosion in e-mail communication sheds light on the risks and benefits of these options. Just a few years ago, electronic mail was seen only as a convenient way to communicate with other lawyers in the office. It seemed inconceivable to use e-mail for communicating with clients, let alone with opposing counsel. After all, doesn't any use of e-mail run the risk of breaching a client confidence, or even of accidentally alerting the loyal opposition to your case strategy? At least that's how some lawyers were pitching the debate.
But guess what? Clients like efficiency and lawyers who are responsive. E-mail saves clients time and money, and receiving a prompt reply or a proactive e-mail makes them feel good (or at least better). Further, they know that purported security issues, such as hypotheticals about breaches in the lawyer-client relationship, are rather like searching for a needle in a haystack the size of Iowa.
Most state bars that have addressed the use of e-mail have taken a practical approach by noting that e-mail has its place and its advantages. They often talk of encrypting e-mails where possible and appropriate, but many bars have noted that encryption often may not be needed in order to communicate with a client. Several state bars also stress the merits of first informing the client about the risks of e-mail, but honoring a client's decision to communicate by e-mail with the lawyer or others involved on a legal team. Most of these opinions stress the need for a lawyer to exercise discretion by assessing the sensitivity of a given communication. In other words, they tend to focus on option three-being flexible when it comes to ethical considerations as a useful, practical approach.
As for the few states that have taken a hard line and directed lawyers not to use e-mail for confidential client communications, try telling that to a client who is ready to switch lawyers because the attorney down the street has no problem communicating by e-mail. The point here is that lawyers need to keep up with the way the rest of America communicates. After all, there was a time when lawyers swore not to use the telephone, and later when lawyers cursed the advent of the fax machine, too.
Several state bar ethics panels seem to view encryption as a solution to the potential problem of interception of lawyer-client correspondence via electronic messaging. Unfortunately, though, encryption does not offer guarantees and can present additional layers of communication issues. If past is prologue, a sort of leapfrog effect will continue. Soon after the release of the latest "foolproof" encryption software, those so inclined, at least theoretically, could use some newer program in an effort to gain access to a secured e-mail. Moreover, no encryption software can eliminate the eternal computing glitch-the human error factor, when someone pushes the wrong button and e-mails material to opposing counsel instead of to a client.
It's important to remember that the size of the risk will determine the strength of the security measures a lawyer needs to take. A petty cash box may safely be tucked away in a locked drawer, but a vault-perhaps with armed guards-is more appropriate for safeguarding securities worth millions. You take precautions that are reasonable. While it is clearly the lawyer's duty to keep the confidences of the client, doing so requires those measures that a reasonable professional would take under the circumstances. While careful and prudent lawyers must take certain steps to ensure that a third party can't read correspondence with their clients, the concern for maintaining confidences of the client does not embody a wholesale prohibition on using a common mode of communication.
Another thing to remember is that the interception of electronic mail by unauthorized parties is illegal, just as intercepting mail delivered by the Postal Service is a crime. The Electronic Communications Privacy Act (ECPA, 18 U.S.C. § 2701) protects all forms of electronic messages-from voice to data. So, there's a presumption built into federal law that whoever has gained access to communications between a lawyer and his or her client did so either illegally or was the beneficiary of an illegal act. Although that fact may not totally prevent the misuse of information gleaned from an illegal intercept, it goes a long way. Further, in terms of deterrence, the law doesn't really distinguish e-mail espionage from illegal wiretapping of a telephone line. When was the last time your bar cautioned you about using a hard telephone line to talk with your client?
Bulletin Boards: A Virtual Soapbox
Though electronic bulletin boards are also protected by the ECPA, they raise other ethics issues. Counsel at some state bars have voiced an interesting objection, suggesting that whenever, wherever, and however a lawyer participates in an electronic bulletin board, the lawyer's action is a per se solicitation. Entirely apart from the wisdom and questionable rationale of this approach, a per se rule that you can't post on an electronic bulletin board raises serious free speech issues. Any public action or statement a lawyer makes then becomes suspect. By divorcing the message from its content, such a rule calls into question speeches and other civic appearances that lawyers frequently make. Since when is it solicitation just to stand on your soapbox?
Furthermore, the ban runs counter to a bedrock principle that a lawyer must aspire to contribute to others in society besides their clients. You don't need to have a lawyer-client relation to fulfill this mission, and bulletin boards are a great communication tool for doing so. In light of the social function lawyers serve, it is all the more ironic that certain ethics panels perceive every lawyer posting as a per se solicitation.
Certain ethics panels also assume that the lawyers who post electronic messages are practicing law without a license because the Internet crosses jurisdictional lines. But if you're not practicing law and merely are providing information that happens to be of a legal nature-because, as a lawyer, you know something about the law-then no professional ethics issue is raised. It is not the practice of law online merely because the information is delivered digitally. The medium here is not the message.
Resistance by the bar to the widespread dissemination of legal information is nothing new. Perhaps the most telling example of a new technology of its day that had the potential to reach millions-and thereby to threaten the bar in a way that had yet to be tested-was radio in the 1930s. A popular radio show aired in New York in 1936. It featured people with legal problems who appeared-anonymously on the radio-before a panel of judges and other members of the bar to pose their questions. Several bar associations (including the ABA) attacked it, and it went silent after just three months. Copycat radio shows were similarly attacked. A few members of the bar expressed concern about a potential lack of confidentiality and the possible erroneous reliance by some listeners on the advice given to guests on the show. But the main objections seemed to be that the shows cheapened the profession and existed primarily as a vehicle to make money for their sponsors.
Just as the bar survived radio, it will survive the Internet. Communication in the open can enhance the reputation of the bar as a whole. And, given the low esteem in which a great many hold the bar, shouldn't we try to do all we can to enhance that reputation-for example, through pragmatic postings that don't solicit or practice law-rather than to flee the proverbial jurisdiction? Again, the best strategy involves judicious use of the technology, not a flat ban nor a rush to post any message and damn the torpedoes.
Legal Information Websites
Some of the critics of new technologies, while worrying that these bold new tools present grave ethical pitfalls, also express quieter concern that they commoditize the dispensing of legal information, or make lawyers look like hucksters. But certain technologies, such as Internet sites dedicated to providing legal information and services, can serve the public and the profession in ways beneficial to both, at least when the legal information website company takes care to structure its programs ethically. Legal information websites can perform a vital public service function that should give the legal profession a boost. A wide swath of middle-class America has long been deprived of legal information. It has been out of reach for several reasons, principally because lawyers traditionally have been inaccessible and have charged high hourly rates for a blend of legal advice and even for purely educational functions. Furthermore, information about the law has been relatively inaccessible (given the low use those law books receive at public libraries). Indeed, the Internet has become a great equalizer. Anyone with curiosity and access to a computer and modem can learn about an array of legal subjects without receiving legal advice, and without a lawyer practicing law in the process.
As a threshold matter, people generally need to decide whether they even have a legal issue that requires the services of a lawyer. The Internet performs an important "qualifying" function. When users obtain information about the law and the legal process from these sites, they can then decide if they're confronting a legal issue at all. They may instead really require a social worker, a financial planner, or some other professional. Or, the information itself may be enough for them.
Indeed, a well-constructed Internet site can give its users the tools to research and select a lawyer for offline services with confidence. The site also can provide users with general principles of law that may be helpful as they ponder the next legal step. In this way, the user of a legal information website later can emerge as a private lawyer's offline client. Such a client is likely to be better informed than most other clients (apart from businesses with their own legal counsel staff). In fact, having taken the time to do a bit of homework online, the Internet user is likely to be better prepared to make decisions based on a lawyer's advice. This is a time saver, and that's especially important to solo and small firm practitioners who are swamped with administrative tasks on top of the usual caseloads.
In other words, when a website provides people with legal information, it may do more than simply help users hire lawyers to address their legal needs offline. It also may enable users to enter into the lawyer-client relationship with an above-average awareness of various rights and obligations, their legal problems, and the legal context for resolving them.
This is not to say that all legal information websites are alike and that none may present an ethical issue. It all depends on how each website has structured and implemented its programs. Some programs may be for consumers and small businesses. Others may be for lawyers who want to market on the Internet or otherwise perform a function. All such programs should be evaluated as the lawyer decides how to use this technology tool.
Again, the best strategy for a lawyer is to apply common sense and flexibility that remains responsive to practice demands, client needs, and ethical concerns. Both an uncritical embrace of this new technology and the categorical rejection of it are unwarranted. Those websites whose programs are set up in a way that satisfies ethical concerns, customer needs, and the needs of practicing lawyers can be a great boon for lawyers and our larger society.
In large part, the ethics bar weighs new technology tools to strike a balance between enhanced communication and expectations of privacy in the lawyer-client dynamic. Meanwhile, we all can benefit from considering how people-website customers or lawyers' clients, for example-are thinking about privacy these days. The focus isn't so much on preserving the privacy of communication with your lawyer, although that certainly comes up on occasion.
The outcry now has a far broader bandwidth: many people are perplexed because it's hard to perceive how online information provided for one routine purpose can pose privacy concerns when used for other purposes. People used to recognize when an action presented a privacy concern, such as physical invasion of the home or workplace. In cyberspace, though, it's often harder to see the flag go up over the right to be left alone.
Especially given their uncertainty, people are becoming more concerned with losing a piece of personal sovereignty when others collect information about them, and about the long-term repercussions. A recent study by the Pew Internet and American Life Project, for example, found that "the vast majority of American Internet users want the privacy playing field tilted towards them and away from online companies" (Trust & Privacy Online: Why Americans Want to Rewrite the Rules, August 20, 2000, at 2; www. pewinternet.org). Perhaps because of media attention devoted to the subject since the emergence of electronic commerce, people now wonder whether they actually have control over their personal information.
Using the Internet as a starting point, some people blame the technology rather than the marketers and others hungry for personal data about traits and trends, illnesses, and spending habits. These concerns clearly influence the bar. This heightened public concern about privacy, coupled with a history of go-slow approaches to new developments, have given some influential lawyers pause about allowing the practice of law to be nudged into cyberspace.
It may not be so intended, but blaming technology inevitably involves a misguided dodge to sidestep progress. It is not a productive way to react to change, because lawyers aren't Luddites, by and large. We are supposed to keep up with not only changes in the law but also developments that can improve the way we deliver services to our clients-as well as to prospective clients and society at large. How we employ that technology ethically presents the real challenge. Miles Davis penned a bebop anthem that got it right: "Now's the Time!"
Elliot Eder is general counsel of law operations for USLaw.com, a Silver Spring, Maryland-based provider of legal information and solutions on the Internet. Before joining USLaw.com, he was a partner at Jones, Day, Reavis & Pogue and tried cases at the U.S. Department of Justice.