December 01, 2019 Techno Ethics

Technical Stupidity Shouldn’t Be Unethical

James Ellis Arden

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The Model Rule that deems technical incompetence to be unethical goes too far.

The Model Rule that deems technical incompetence to be unethical goes too far.

Nearly everything written about lawyers and technology these days mentions Comment 8 to ABA Model Rule of Professional Conduct 1.1: Competence, which the ABA added in 2012. It states that to maintain competence, attorneys must keep abreast of “relevant technology.” That comment to Rule 1.1 was unnecessary and unhelpful.

Of course, lawyers need to be competent. Incompetent lawyers can’t succeed, and they get sued for malpractice if they cause harm to their clients. But a rule that deems technical incompetence to be unethical goes too far.

What are the ethical standards to which we are to hew? What is the line between mistake and stupidity? The problem with declaring knowledge of relevant technology to be an issue of ethics is that the rule doesn’t—it can’t—specify the amount of knowledge that the rule requires.

The rule does not account for the difference between knowing how a device works functionally and understanding how it affects a person and society. Knowing how to use a device does not necessarily mean that you understand how that device uses you back. This dissonance manifests whenever the news is filled with some “shocking” tale in which one of the major characters is a technological system (see “Are We Technologically Literate?,” LibrarianShipwreck, July 3, 2014).

Consider the now-notorious Florida law firm Odom & Barlow, which due to technological decisions lost an appeal and had to pay the other side nearly $400,000 in attorney fees. The firm had set up its spam filter to automatically delete unwanted e-mails without creating a backup file or notifying anyone at the firm that the server had received spam e-mail.

A consultant testified he identified the flaw, but he said Barlow rejected his proposal for a backup system that could have rectified the problem, in order to save $700 to $1,200 a year. Because the firm knowingly kept the faulty e-mail configuration, the partners said they did not receive an order from the trial court. They asked the court for a new order that would reset the clock on the appeal deadline, relying on a longtime practice in which judges considered resetting deadlines for firms that had not received mail sent via letter carrier. This time, the court engaged in detailed fact-finding to trace the missing electronic message.

One expert explained that the firm’s filtering system was so unorthodox that “he would require the client to sign a waiver exonerating him from responsibility if the client insisted on implementing such an e-mail filtering system.”

So, Odom & Barlow’s conduct in setting up their e-mail system was clearly stupid, but was it unethical? When most of us check our spam filters and find an e-mail from a sender that we hadn’t wanted blocked, we click the button that says something like “always accept e-mail from this sender.” Yet, most of us know (I assume) that clicking the “always accept” button isn’t foolproof, and that some e-mail from an accepted sender might still get trapped by the spam filter. None of us (I assume) would ever disable ourselves from being able to review e-mail flagged as apparent spam.

Odom & Barlow were real pudding-heads, but suppose they clicked their “always accept e-mail from the court” button and wrongly thought e-mail from the courts would always come through without being considered spam. Honestly (but wrongly) believing in that scenario would mean the firm never thought e-mail from the court would be blocked. If they thought e-mail from the court would always get through, were they acting unethically?

The firm was duly punished for their stupidity, and I speculate that they may have faced a malpractice claim, depending on whether there had been good grounds for the appeal that was never filed. But to find their conduct also constituted a breach of ethics requires identification of the point at which the firm crossed over from negligent to reckless to downright unethical.

The reality is that almost all of us use technologies that we don’t understand. Know anyone who doesn’t use a cell phone? The amount of data that phone companies collect via the fake palm trees our phones are constantly “pinging” for a signal provides them more data about our lives than most people realize.

“Mapping a cell phone’s location . . . provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations’ [United States v. Jones, 565 U.S. 400 (2012), at 415]. These location records ‘hold for many Americans the ‘privacies of life’ [Riley v. California, 573 U.S., at ___ (slip op., at 28) (quoting Boyd v. United States, 116 U.S. 616 (1886), at 630]. And like GPS monitoring, cell phone tracking is remarkably easy, cheap, and efficient compared to traditional investigative tools” (Carpenter v. United States, 585 U.S. ___ (2018) (slip op. at 12)).

So we’re already being tracked by basic cell phone technology. But most of us now have smartphones. The way most people use them makes them even more trackable than dumb phones. People want to use all the features their smartphones can offer. That means connecting to the Internet, and that means websites all over the world are tracking us, or trying to, as well.

“Standing in the middle of the road is very dangerous; you get knocked down by the traffic from both sides.” — Margaret Thatcher

We may know how to use our smartphones, but few understand the information they gather, or the information they send. Service agreements contain pages and pages of terms written in dense legal terminology that are not meant to be read. Even lawyers simply check “I’ve read it” and then click “agree.” Unless there is a problem, and maybe not even then, users have little or no understanding of what vendors can legally do after we “agree” on the terms of service. Wonder why some apps are available and others are not (“Are We Technologically Literate?,” supra)?

In 2017, every fifth law firm in the United States was hacked—that’s 20 percent—14 percent more than just the year before. The most frequent targets were firms with 10 to 49 attorneys (35 percent), followed by firms of 50 to 99 attorneys (33 percent), firms of 2 to 9 attorneys (27 percent), firms with 500 or more lawyers (23 percent), and solos (10 percent) (Jay Reeves, “One in 5 Law Firms Hacked Last Year,” Lawyers Mutual, February 22, 2018).

Large firms need much larger technology budgets than small firms and solos. Must large firms be more technologically facile than solos to maintain technological competence? Is it fair to hold solos to the same standards as large firms, especially given that they’re the least frequently targeted lawyers? A rule deeming technical incompetence unethical without defining what that means also fails to take into account that some lawyers are more technologically competent than others.

If technical incompetence is unethical, should mathematical incompetence be deemed unethical too? (Shudder.)

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James Ellis Arden works on legal malpractice, ethics, and appellate matters for other lawyers. Rated AV-Preeminent by Martindale-Hubbell, he is a member of the Association of Professional Responsibility Lawyers and the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee (former vice-chair), and he serves as a volunteer special master for Los Angeles County.

Published in GPSolo magazine, Volume 36, Number 6, November/December 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.