August 01, 2016 GPSolo | Column

TECHNO ETHICS: New Age Technology Shouldn’t Undermine Old Age Planning

James Ellis Arden

[A]dvances in modern technology and the widespread use of the Internet have sent the investigative technique of a call to directory assistance the way of the horse and buggy and the eight-track stereo. 

DuBois v. Butler, 901 So.2d 1029, 1031 (2005)

I miss Real Books. I do. On the other hand, I no longer miss Real Books when doing most legal research. As soon as I could paste electronic research material right into my work product, well, I stopped missing Real Books and paying rent for library space.

Life is a series of advances in technology. There was a time when making a court appearance meant you had to be in a courtroom.

Today, we have actual ethics rules that require us to be technically facile. Comment 8 to ABA Model Rule of Professional Conduct 1.1, the Duty of Competence, has been amended to include the need for attorneys to keep abreast of “the benefits and risks associated with relevant technology.” In the wake of this amendment, and California’s adoption of Formal Opinion No. 2015-193, at least 20 states, according to legal blogger Robert Ambrogi, now have formal ethical rules requiring technical competence of attorneys (tinyurl.com/k2ojobz).

As you’ve read elsewhere in this issue of GPSolo, estate planners face unique ethical concerns. They have to worry about client capacity, spousal and intergenerational conflicts, continuing or terminating client relationships, as well as their own competency. They have to remain concerned about their client bases and other sources of new business, too.

Additionally unfortunate is the fact that claims against estates and estate planners rise up out of the woodwork. “Heirfinder” firms scour the globe for probate claimants after virtually every death. And when the “natural bounty of one’s affection” feels disinherited, they often sue.

When claims do arise against estate planners, it’s too late for their clients to explain what was intended, speaking from the grave. Some states have abandoned strict privity rules, exposing attorneys to greater potential malpractice liabilities to clients’ heirs and third parties. (See, e.g., Baker v. Wood, Ris & Hames, 2016 CO 5; 364 P.3d 872; 2016 Colo. Lexis 19—declining to adopt California and Florida-Iowa beneficiary standing rules.)

As you’ve also read, lots of new technology is available to assist estate planners. There is software that customizes documents, facilitates research, eases client communications, manages calendars and deadlines, and finds electronic documents stored on computers and elsewhere.

Dreams about the future are always filled with gadgets.
—Neil deGrasse Tyson

Before buying new technology, ask yourself if the latest technology can help you. What value has it? What are the pitfalls of which you should be aware?

No rule requires you to use any particular technology. You don’t even have to use computers or the Internet if you can get done what you need done without them. But if you use technology, you have to understand enough about it to avoid being hoist on your own petard. (See, e.g., James Podgers, “You Don’t Need Perfect Tech Knowhow for Ethics’ Sake—But a Reasonable Grasp Is Essential,” ABA Journal, August 9, 2014, tinyurl.com/o6n2b8w.)

This is really important now that we live with the Internet of Everything. The “IOE” is all the new stuff being sold that connects to the Internet, such as televisions, automobiles, doorbells, and thermostats. Sure, it makes sense for a retailer to computerize its inventory control, but do many need a refrigerator that can order baklava and carrots and send e-mail when the butter runs low?

Back in 2008, researchers found data could be stolen from computers by reading anything nearby that caught the screen’s reflection—teapots, glasses, bottles, spoons, human eyeballs. Another team determined what someone had typed by videotaping the typist’s hand movements. Just recently, University of California, Irvine, researchers found they could reproduce a near duplicate of a key made on a 3-D printer—by analyzing the sounds generated by the 3-D printer while it “printed” the key (tinyurl.com/zjo5pg2).

Today, you have to worry that your new car might report you if you have an accident. A Florida woman’s Ford SYNC system phoned an emergency dispatcher after detecting a collision. The woman denied having an accident, but police went to her home, saw the evidence, and arrested her for hit-and-run.

If you use Gmail, copies of your e-mails are located who-knows-where on Google’s servers. If you’ve stored documents in the cloud, you could lose access to them, or your ability to protect them may depend on laws in foreign jurisdictions. Hackers in at least 91 cases have intercepted e-mail between English lawyers and clients, and real estate agents and their clients, stealing nearly $15 million; and they are targeting American law firms, too (tinyurl.com/gu2mxxt).

Stuff happens. That is why you need to understand, for instance, password fundamentals, and that publicly available WiFi spots are not secure—never use them to transmit confidential documents or communications. Likewise, you need to understand metadata if you share or collaborate on electronic documents. (It also wouldn’t hurt to understand why Word generates more metadata than WordPerfect.) As well, you should understand how scammers and hackers attack so you can avoid them.

Take heart, though, small firm practitioners. Ironically, corporate legal departments are the easiest targets for phishing scams, according to Verizon’s 2016 Data Breach Investigations Report (verizonenterprise.com/DBIR/2016). In-house attorneys are more likely than anybody to fall for spoofed e-mail.

In any event, one way to minimize the risk of harm is to use encryption. If you use good encryption, you should be safe even if your communications are intercepted or hijacked.

Encryption has been in the news a lot lately because of the government iPhone antics. Lawyers are not required to encrypt e-mail communications with clients because they are said to pose no greater risk of interception and disclosure for ethics purposes than commercial mail, landline phones, or faxes. (ABA Form. Opn. 99-413; Orange County Bar Assn. Form. Opn. 97-002—use of encrypted e-mail is encouraged, not required.) A communication between attorney and client does not lose confidentiality solely because it is transmitted by fax, cellular phone, or other electronic means. (Cal. Evid. Code § 952; 18 U.S.C. § 2517(4); Orange County Bar Assn. Form. Opn. 97-002—although encryption is encouraged but not required, “the wide availability of commercially unbreakable encryption software at affordable prices dictates that the prudent practitioner will investigate and use this technology.”)

The concept of encryption provides a good illustration of how our duty of technical competence operates. Prior to the 1998 amendment to the Electronic Communications Privacy Act of 1986, extending the scope of the wiretapping statute to include “electronic communications,” some states required attorneys to encrypt e-mail and/or obtain client consent before using it. The ABA’s formal opinion in 1999 (cited above) concluded that unencrypted e-mail affords “a reasonable expectation of privacy from a technological and legal standpoint.” (Kristina Horton Flaherty, “Ethical Issues Bedevil Lawyer E-Mail,” Cal. B. J., May 2001, tinyurl.com/hbctlho.)

So, encryption is not required. Meanwhile, millions and millions of e-mail accounts have been hacked. Some 11 million documents were leaked from the Mossack Fonseca law firm, as we’ve learned from the Panama Papers scandal. Lots of people now wish those documents had been encrypted. But no encryption was required.

In time, lawyers will be required to encrypt e-mail, but not before many more attorneys are embarrassed and have money taken by criminals. Once it happens, the victims will encrypt. But for the majority of us, encryption won’t be implemented until the law requires it. Think seat belt laws.

Don’t put off acquiring new technology if it might help now. But be judicious. You probably shouldn’t buy the cutting edge until others have spent their money and provided some feedback. After a year, any kinks will have been found and the price will have dropped.

When contemplating how technology has changed what we do, consider this: When was the last time you had to find a pay phone? Is your current briefcase smaller and lighter than your old one? And do you miss Shepardizing case law?

James Ellis Arden

James Ellis Arden handles litigation and appeals in California, mostly involving civil procedure, legal malpractice, and ethics issues. He has a background in computers and psychology and writes and speaks at events for several bar associations.