The 2021 Summit ended with a bang from Gary Marchant, a law professor at the Sandra Day O’Connor College of Law in Phoenix, Arizona. Aided by Justice Robert Torres from the Supreme Court of Guam, Professor Marchant led us through some of the ethical dilemmas that can arise from modern technological advancements.
More and more states are adopting ethics rules that obligate attorneys to be competent in technology. Lawyers can no longer hide their heads in the sand when it comes to technological advancements. In most jurisdictions, computer literacy is a requirement. Courts have even sanctioned lawyers and clients who fail to use technology properly.
But at the same time, advancing technology can create advancing ethical issues in litigation. Judges and lawyers will continue to grapple with the intersection between ambiguous ethics rules and ever-increasing technological capabilities.
To demonstrate the complexities involved, Professor Marchant asked us several thought-provoking questions about this intersection. For example, Professor Marchant requested that attendees consider a fatal genetic disease that does not onset until middle to late adulthood. Is it ethical for a judge to order a party to undergo testing for the disease? Does it depend on the relevance of the evidence?
Or, what are we to make of the fact that the average age of judges is older than at any other time in the country’s history? Is it proper to require judges to undergo testing for degenerative conditions like Alzheimer’s disease? If so, at what age and under what circumstances should testing be required?
Technological advancements have created other ethical issues as well. While the original polygraph machines are no longer in style, there are new technologies that can purportedly detect lies. Is it ethical for a lawyer to put a prospective client through this testing? Is it ethical to ask an opposing party to go through the testing? Can an attorney use the technology in real time, during a deposition? Do you have to provide prior notice to the deponent or opposing party that you intend to use this lie-detection technology?
Another technology gaining traction is drones. People use drones for all sorts of purposes, from law enforcement to home buying. The use of drones can certainly have legal implications, such as the propriety under the Fourth Amendment. But even beyond constitutional concerns, is it ethical for an attorney to use a drone to gather information to be used in litigation? What are the limitations of drone evidence?
Artificial intelligence is continuing to increase as well. What are the ethical implications of using such technology? Are attorneys ethically obligated to use artificial intelligence? Is it malpractice not to use it?
And, can that technology be used for hiring decisions? Should judges and law firms be permitted to use artificial intelligence to assist with recruiting? What if this artificial intelligence tool showed bias against certain groups of people?
When it comes to social media, how far can (or should) lawyers and judges go? Is it proper for a prosecutor to set up a fake Facebook account to connect with a potential witness? Can a law firm staff member “friend” an opposing party? Are attorneys permitted to exchange social media comments with judges before whom they practice? Can attorneys use social media to research potential jurors? Courts and ethics opinions have addressed some of these issues, but the lines remain fuzzy.
Finally, what about ethical issues that arise in the age of working from home? Can a jury be properly selected in an entirely virtual proceeding? Is the attorney-client privilege affected when lawyers have a smart speaker in their home?
In the end, Professor Marchant left us with more questions than answers. But I think that was intentional. The point is that we should continue to use technology as it improves, and we should consider the ethical implications of doing so. Technological advancements should make the judicial system better, not worse. So, in the words of one federal district court judge, “don’t freak out.”