TECHNO ETHICS: Predictive Ethics: What Can We Expect by 2020?

Vol. 31 No. 3

By

James Ellis Arden handles litigation and appellate matters in Southern California. He is a member of the Association of Professional Responsibility Lawyers (APRL) and the California State Bar Committee on Professional Liability Insurance (COPLI).

Any sufficiently advanced technology is indistinguishable from magic.

—Arthur C. Clarke

Think about how technology has changed the practice of law: “[I]n 1966, there were no personal computers, no Internet, no Blackberries, no teleconferencing, no e-mails, and the only person who had a two-way wrist radio was cartoon character Dick Tracy. Today, largely because of the benefits of modern technology, . . . [l]awyers throughout the United States regularly participate in teleconferences and group e-mail sessions with other lawyers in other states.” Winterrowd v. American General Annuity Insurance Co., 556 F.3d 815, 819 (9th Cir. 2009).

Before wireless Internet connections became ubiquitous, lawyers were office-based and spent money leasing storage spaces for files and wall spaces for libraries. Now we’re all road warriors, spending more on electronic devices and less on real estate. Instead of being tethered to our offices, we are leashed to our smartphones. We carry less, go through security checkpoints faster, and need fewer chiropractic adjustments.

Your Duty to Keep Up with New Technology

What ethics opinions used to imply is now becoming express: Lawyers owe a duty to keep up with technological advances and in some cases to use those new technologies.

“California has not drawn a parallel between legal and technological competence. By contrast, the American Bar Association has recently taken this position.” (Andrew M. Vogel, County Bar Update, October 2013, tinyurl.com/o6a8dn8). Deputy Attorney General Vogel cites ABA Model Rule 1.1, which states, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,” on which Comment 8 elaborates: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” [Emphasis added]

California’s parallel is Rule 3-110(A) of the California Rules of Professional Conduct, which tersely states that a lawyer “shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” Although there is no on-point California case law concerning whether a lawyer must maintain technological competence, Vogel suggests the codification of e-discovery rules and the e-filing procedures becoming required by more and more courts means that California’s policy is entirely consistent with Model Rule 1.1.

Technology has always affected our duty of due care to our clients. Remember the secretary at the defense firm in a notorious Baltimore asbestos case who was blamed for hitting the wrong speed dial button on the fax machine and sending the firm’s juror selection strategy papers to their opponents by mistake? Moreover, despite the fact that negligent conduct is not normally unethical, repeated malpractice is unethical.

To provide competent representation, a lawyer must be able to research the law. Massey v. Prince George’s County, 907 F.Supp. 138, 142 (D.Md. 1995). Abraham Lincoln never used a PC, but today, a lawyer who relies solely on books and who does not use computers to conduct legal research is acting below the standard of care. An attorney is expected to discover “by standard research techniques” rules of law that are not commonly known. Smith v. Lewis, 13 Cal.3d 349, 358 (Cal. 1975).

Criminals Lead by Example

Criminals have always been at the forefront of new technologies. (See, e.g., tinyurl.com/pwkbfot and tinyurl.com/ofgu9n7.) In a criminal case, if the statute doesn’t fit, the jury must acquit. Because technology advances so much faster than penal laws (or ethics codes), we have situations such as the one in Massachusetts, where a man who took “upskirt” cell phone photos on the subway was recently found not to have violated state law because no statute outlawed the taking of such photos. In an immediate response to that acquittal, Massachusetts outlawed the taking of such photos in public.

In the same way that technology zooms ahead of penal codes, it whizzes by ethics codes. Our e-mail accounts are used as “phish” food because no particular criminal penalty can be imposed when a lawyer clicks on a strange link or goes to a bad place on the Internet. But lawyers whose clients’ privacy rights or secrets or trust accounts are compromised can count on being busy making disclosures and corrections, as well as explanations to the bar.

The ABA Commission on Ethics 20/20 reviewed the Model Rules of Professional Conduct in the context of advances in technology. Created in 2009, the Commission released its initial proposals relating to technology-based client development tools in mid-2011. Notwithstanding the social media and other “share everything” technology that the Commission considered, it concluded that no new restrictions are necessary but that lawyers would benefit from more guidance on how to use new technology.

The conclusion that more guidance would be beneficial is unsurprising. The Commission did recommend some grammatical changes to the Model Rules, but because no substantive changes were suggested to the disclosure requirements in Model Rules 7.1, 7.2, or 7.3 (communications, advertising, solicitation), the Model Rules will continue to suggest it is unethical for lawyers to use Twitter because there is no room in a 140-character tweet for all the required disclosures. (This problem was first mentioned by ethics expert Diane Karpman.)

The Ethics 20/20 Commission recognized that attorneys are using social media like everyone else, but it said nothing about how the Model Rules come into play with any particular medium. Before you complain that the Commission could have been better tasked or could have produced more useful results, know that the main reason ethics codes ever came into being was not to make us better, more competent lawyers, nor was it to protect our clients. It was to guard against competition within our profession, to keep others out. See 29 Hofstra Law. Rev. 247, 249.

Gambling on the Future

We’ve arranged a global civilization in which most crucial elements . . . profoundly depend on science and technology. We have also arranged things so that almost no one understands science and technology. This is a prescription for disaster. We might get away with it for a while, but sooner or later this combustible mixture of ignorance and power is going to blow up in our faces.—Carl Sagan

As attorneys’ understanding of technology has improved, state bar ethics opinions across the country have changed. The ABA Committee on Ethics and Professional Responsibility reviewed ethics opinions in 1999 and determined that they generally transitioned from concluding that using Internet e-mail does violate confidentiality obligations to concluding that unencrypted Internet e-mail can be used even without express client consent.

Notwithstanding, expect encryption to be required one day. It’s been hinted at for a long time, and it’s practically necessary, although it has never been required. See, for example, Orange County Bar Assn. Form. Opn. 97-002: “the wide availability of commercially unbreakable encryption software at affordable prices dictates that the prudent practitioner will investigate and use this technology.” More recently, the State Bar of California, in Formal Opinion 2010-179, also addressed lawyers’ duties of confidentiality and competence in connection with transmitting or storing confidential client information that a third party might access: “encrypting e-mail may be a reasonable step for an attorney to take . . . when the circumstance calls for it, particularly if the information at issue is highly sensitive and the use of encryption is not onerous.”

As it continues to dawn on us just how little privacy is left—even for information that must be kept private—encryption will grow in use. It will be another complication with which we’ll have to learn to live, just like keeping track of all those passwords we now need.

As the writer Alice Kahn put it: “For a list of all the ways technology has failed to improve the quality of life, please press three.”

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