TECHNO ETHICS: The Dangers of the Cutting Edge

Vol. 28 No. 8

By

James Ellis Arden practices law in the Los Angeles metropolitan area with a focus on legal malpractice, civil litigation, and appellate matters.

 

Who knew there were so many connections between turbocharging and ethics? Some computer gamers use “turbo-controllers” that can simulate faster button presses than are possible with normal game controllers. Fine for one-person games, but unethical, according to many, if used when playing against others online.

Human brains can be turbocharged, too. What are the ethical implications of that? A group of ethicists and neuroscientists suggested in an article in Nature last year that psychostimulants could be provided to healthy people to improve performance in the classroom or the boardroom. “If you’re a 65-year-old living in and your retirement savings have decreased dramatically and you have to stay on the job market and compete with a 23-year-old in Mumbai to stay alert and stay effective, you may feel pressured to turn to these compounds,” says Zack Lynch, executive director of the Neurotechnology Industry Organization.

So, what of turbocharging your office with special hardware and software, setting up a virtual office, hopping on a computer cloud? With so many technological means now available to turbocharge your office, why not become more powerful, do things faster, be a better lawyer? It’s all good, right?

Gearheads have been turbocharging engines since Alfred Büchi invented the turbocharger in 1905. Turbocharging a vehicle engine enables the engine to produce a lot more power, but if the turbocharger fails, the result could be catastrophic. If new law-office technology lets us do more in less time, it stands to reason that mistakes in the use or design of technology would result in really big problems that happen really fast. What could go wrong if you turbocharge your office?

Turbocharging with a virtual office. According to a new opinion from the New Jersey Advisory Committee on Professional Ethics and the Committee on Attorney Advertising, lawyers who rent offices under time-sharing arrangements may violate ’s bona fide office ethics rules if a virtual office, which lawyers visit by appointment only, is held out as the principal place of business. (The opinion notes that ’s rule, the purpose of which is to make sure lawyers are available and can be found by clients, is an artifact no longer found in most other jurisdictions. Even so, a home office can be a bona fide office, and a receptionist is not necessary so long as the lawyer is only absent occasionally and can be reached by phone or e-mail.)

Turbocharging e-discovery with an outside vendor. In Thorncreek Apartments III, LLC v. Village of Park Forest, et al., No. 08 C 1225 (N.D. Ill. Aug. 9, 2011), the defendant used a third-party vendor, Kroll Ontrack, to identify and produce documents from computer backup tapes responsive to discovery requests. Seven months later, at a deposition, the defendant realized that the documents produced by Kroll had inadvertently included some that were privileged— 159 privileged documents, as it turned out. Plaintiff sought an order finding that six documents were not protected by the attorney-client privilege and that, even if they were, the privilege was waived when the documents were produced by the defendant.

Rule 502(b) of the Federal Rules of Evidence states that a disclosure of privileged information does not operate as a waiver if (1) the disclosure is inadvertent; (2) the holder of the privilege took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error. The court found that the disclosure had been inadvertent but that defendant—relying on Kroll without checking to see if any documents marked “privileged” were being produced—had not taken reasonable steps to prevent the disclosure, and that, therefore, the privilege had been waived.

Notwithstanding our ethical duties to avoid even inadvertent disclosure of privileged communications, malpractice claims are being generated by e-discovery follies. Using an e-discovery vendor may make life easier, but it doesn’t relieve an attorney of any responsibility.

Turbocharging document handling using PDFs. The PDF (portable document format) has taken over. I love it and use it all the time. I use it to prepare evidentiary exhibits so I can put documents in order and number them without having to handwrite on each page or pay an outside service provider. And I use it to convert web pages from which I want to print or save something other than the whole page.

But as secure as I feel using PDFs, it’s a false feeling. As with just about all technology, using it without understanding it can be very dangerous. Mikko Hypponen of F-Secure Corporation wrote in a March 2010 blog about the 756 pages of PDF specifications and some of the “crazy stuff” in there:

You can embed movies and songs. Into a PDF file. What? . . . PDF files can contain 3D objects, complete with embedded JavaScript? Who comes up with these things? . . . PDFs can have forms. That’s fine. But why do we need functionality where such forms can submit the data you input directly to a server somewhere on the net? . . . There’s a function within PDF specs to launch executables. Or to run JavaScript. Why do we need these things?

Hypponen includes an example on his blog of a PDF file that executes arbitrary code when all you do is view the file. This means any PDF file you open could start executing code on your computer without your knowledge. It pays to be suspicious if someone you don’t know sends you a PDF you did not expect. Hypponen suggests that you not download PDF files at all, and instead, open them remotely in viewers such as Google Docs.

Another problem with the “multiple layers” in PDFs was discovered by Princeton Ph.D. candidate Timothy Lee, who studied the black boxes used to redact documents posted on PACER. Lee wrote software to detect redaction boxes in 1.8 million PACER documents, which identified about 2,000 documents with redactions; of these, 194 had redactions that didn’t work because the supposed-to-be-redacted text was still sitting underneath the black boxes. In some cases, the redacted data could be retrieved by simply cutting and pasting.

Turbocharging cash flow by taking credit cards. Some lawyers say the best thing they ever did to improve cash flow was to arrange to take credit cards. Well, now you can get a handy device from Square that lets your smartphone or tablet function as a credit card reader. The problem is that the device uses the earphone jack. This means the device works by converting the magnetic stripe data on the credit card into sound. Researchers, having recorded that credit card sound, demonstrated that playing the sound was equivalent to scanning the credit card, and that using hack software, they could “pay” themselves by getting cash from a gift card that couldn’t officially be used for cash.

Turbocharging portable computers. It was reported last June that the New York Times learned, from a discarded laptop discovered in the garbage area of a apartment building, about a Goldman Sachs trader’s legal defenses. Even after a third party found and took possession of the computer, e-mail messages for the defendant continued streaming into the laptop. The streaming messages were ignored until the third party heard news reports about the trader, so she then turned the e-mails over to the Times.

We use more and more—and smaller and smaller—computers than ever before. Almost every cell phone nowadays connects with the Internet. They’re easily stolen. They’re even more easily lost. If they’re set up for any kind of automatic communication, the communication will continue with the person who stole, or found, your phone. The least you can do for yourself is to password-protect all your portable devices. (And use a strong password!)

Taking your foot off the gas. While most jurisdictions don’t treat one-time mistakes as ethical defalcations, repeated mistakes or reckless conduct is unethical. We never used to see judicial or ethical opinions involving new technology. Now, opinions criticizing lawyers for improper use of blogs, Facebook, YouTube, cloud computing, and computerized research pop up frequently. Even makes movies about social networks. Because ethics rules develop around technologies, today’s new technologies are shaping tomorrow’s ethical standards.

 

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