ROAD WARRIOR: Shades of Nostradamus

Vol. 31 No. 3

By

Jeffrey Allen (www.jallenlawtekblog.com) is the principal in the law firm of Graves & Allen in Oakland, California, Editor-in-Chief of GPSolo magazine and GPSolo eReport, and a member of the Board of Editors of the ABA Journal and Experience magazine.

This issue focuses on changes in the practice anticipated in the course of the next several years, taking 2020 as its focal point as a result of the ABA’s earlier focus on that year in setting up its Ethics 20/20 Commission. In keeping with that focus, this column will address the status of road warriors in 2020.

The title of this issue’s column notwithstanding, I do not claim the predictive powers of Michel de Nostradamus. I used to have a crystal ball, but someone dropped it several years ago and it has not worked properly since. Fortunately, however, the handwriting is on the wall respecting mobility and the practice of law, and it does not take a seer or prophet to see the direction of that evolution. Whether or not we all will have become totally mobile by 2020 is really a matter of little concern. The simple fact is that technological innovations in recent years have made all of us more mobile and more efficient while enjoying that mobility. This trend will continue as more and more of the members of our society and our profession are born and raised in the modern technological era. Younger lawyers have a predisposition to adopt more technology and to evolve with the technological advances into a more mobile existence both in their personal and professional lives.

In my lifetime I have seen us evolve from carbon paper to photocopies to PDF files; from longhand and manual typewriters to computers and tablets; from snail mail to e-mail (and now e-mail is becoming obsolete); from extensive printed law libraries to a mobile law library that travels in your pocket through a combination of electronic files resident on a mobile device (smartphone or tablet) or accessible on cloud servers containing vast law libraries kept far more current than print libraries could ever be.

When I first started practicing law (1973), limitations on available resources put road warriors at a significant disadvantage when out of their office (likely why we called them road “warriors”) by comparison to the resources available to them in their office. Today, in most cases, lawyers can practice law as efficiently outside a formal office as they can in an office.

The Accelerating Pace of Change

One of the most interesting things about technology relates to its growth pattern. If you look over the history of the growth of technology, you discover that the more technologically advanced we become as a society, the faster our technology moves from leading edge to obsolescence. The mainstays of today’s law office technology include computers, tablets, smartphones, and the Internet. Look at the growth in power and functionality of those devices over the last ten years. Even if you conservatively anticipate that technology will evolve at the same rate over the next five years as it did over the last five years, you end up with a reasonable expectation that computers as we know them have gone the way of the dinosaur and we will move through tablets to smart and highly evolved phablets (voice-controlled tablets with the power of computers and telephone functionality) that we can carry in our pockets and will provide us with the ability to author documents, review documents, do legal research, handle telephone and videophone conferences, etc. Remember that the smartphone you carry in your pocket today has more memory, more computing power, and better and more useful programming than most large desktop computers had 15 or even ten years ago.

Likely by 2020, current technology will have given significant ground to the rapidly evolving computing capabilities associated with wearable technology, such as the Google Glass devices. By 2020 (or shortly thereafter) we can anticipate a fully functional, powerful, very lightweight computer with full Internet access that we wear and that roams with us wherever we go and also handles our telephone calls (video conferences).

Because those devices will allow us to access messages, create and review documents, and access extensive server-based law libraries using VRT (voice recognition technology), we will have hardware that allows us virtually complete and unrestricted professional as well as personal mobility. The highly mobile lawyer will be the norm. The less mobile lawyer will become the exception. In that world, technological evolution will have relegated the office-bound lawyer to the role of a true dinosaur.

I do not mean to imply that in the next six to ten years everyone will close their bricks-and-mortar law offices and work out of their house or in a virtual law office environment. I do mean that it will be possible to do so and that more and more lawyers will move into that type of practice setting. In the foreseeable future, many law firms will maintain a bricks-and-mortar office, but I do expect that the offices will have a smaller footprint, as fewer people will need to come into the office to work on a daily basis.

Over the last several years we have seen a growth of large firms merging to make larger firms and of some medium and large firms going out of business, resulting in a growth in the ranks of solo and small firm attorneys. Although some technology has priced itself out of consideration for many solo and small firm attorneys, technology has also had an equalizing role, allowing solo and small firm attorneys to compete with larger firms. An interesting consideration about the growth of mobile technology is the possibility that it will make it easier for an attorney to work in a solo or small firm environment and may, in conjunction with economic and social factors already pushing in that direction, facilitate an increase in the number of solo and small firm attorneys.

Ethics for the Road Warrior

Do not for a moment, however, think that this will all be lollipops and roses. As our mobility increases, so does our exposure to the evildoers of the world who like to steal other people’s data or screen it for information. Although most of us do not have top-secret information impacting national security on our mobile devices, almost all of us have our clients’ confidential information on these devices. Accordingly, enhanced mobility requires increased diligence to protect client confidentiality and data security.

We all need to recognize and appreciate the impact that technology has had, now has, and will continue to have on the way we practice law. Lawyers who have availed themselves of the freedoms offered through technology have, one hopes, done so prudently and carefully, taking appropriate care to comply with ethical requirements applicable to the data that they carry around. Those who still spend most of their time in the office will need to pay particular attention to accommodating those rules and concerns with respect to the devices on which they carry their information as they step out into the world with their data. The Ethics 20/20 Commission report (tinyurl.com/nmn85oj) recognizes some of these concerns. In the introduction to the report, the Commission notes that:

Advances in technology have enabled lawyers in all practice settings to provide more efficient and effective legal services. Some forms of technology, however, present certain risks, particularly with regard to clients’ confidential information.

Recognizing change as one of the realities of the digital age, the Commission correctly concluded that technology “is changing too rapidly” to offer detailed guidance as to the steps attorneys should take to safeguard data and client confidentiality. The Commission recognized, as each of us must also understand, that the “particular measures lawyers should use will necessarily change as technology evolves and as new risks emerge and new security procedures become available.”

The amended ABA Model Rules of Professional Conduct require attorneys “to act competently to safeguard [client confidential] information against inadvertent or unauthorized disclosure.” The amended Model Rules endeavor to set up a safe harbor for attorneys by noting that the fact of unauthorized disclosure does not constitute an ethical violation “if the lawyer has made reasonable efforts to prevent the access or disclosure.”

Ultimately, the fact that you employ protective measures based on today’s technology will not protect you or your clients when you use tomorrow’s technology. As we become more mobile, acceptable diligence requires constant vigilance and regular review of security measures in the context of evolving technology.

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