Come for the Tech, Stay for the Ethics Training

As I write this, Thanksgiving is weeks away, and leaves have just begun to fall. It hardly seems the time to be thinking about ABA TECHSHOW, the event that introduced me to the Law Practice Division and many of the people who would become close friends. But it was, first and foremost, the presentations at TECHSHOW that grabbed me, and I haven’t let go yet.

TECHSHOW 2024 begins on Valentine’s Day, February 14, 2024, and promises to be another great event. Having seen the schedule, I can attest to the exceptional variety of programs, including two I will be presenting. One of them is “Ethical Use of Law Office Technology,” a basic ethics and technology program that highlights why TECHSHOW is different from other similarly branded events

My session, like virtually every other event at TECHSHOW, isn’t a plug for or sponsored by a vendor whose goal is to provide information that will help attendees discover that their products are the best. To the contrary, my co-presenter, Alexander Paykin, and I will offer a candid, informative, and entertaining overview of the ethical considerations and best practices associated with the adoption and use of technology in law offices. Because the program will qualify for one hour of ethics CLE credit, our focus will be on how to use basic technology consistent with the Model Rules of Professional Conduct, including Rule 1.1 (Competence), Rule 1.4 (Communication), Rule 1.6 (Confidentiality), and Rule 5.3 (Non-Lawyer Assistance). We will discuss how law firms can leverage these tools effectively and ethically.

So, what in the world does that mean? And why should you spend your hard-earned money and travel to Chicago in February?

The difference is the breadth of content at TECHSHOW, with programs for everyone from beginners to those with advanced technological expertise. The difference is the ability to meet and interact with experts in the fields that matter to you. I still remember meeting some of the experts whose articles and books I had read and whose programs I had attended online. But there was huge difference meeting them in person. In person, they chatted with me, they answered my questions, and some became friends, some of whom I now lecture with.

But I digress. Let’s talk about TECHSHOW 2024 and what you can expect from a program on “Ethical Use of Law Office Technology.”

First, consider the many types of technology used in law offices:

• Computers and Laptops: Essential for document creation, legal research, and communication, these devices also store Rule 1.6 information relating to clients as well as other sensitive and confidential information. Firms must consider how staff use them, how they store data on them, and how they dispose of them.
• Legal Research Databases: Tools like Westlaw, LexisNexis, and others for legal research and case analysis are essential to attorneys. While most lawyers assume that their queries and other data input into these services are confidential, with the advent of many AI-based tools, lawyers must consider whether the information they provide is aggregated with other attorneys’ data and whether it is possible to harvest that data.
• Email and Communication Software: Email is used every day in virtually every office for almost every type of client-related communication. Yet email is commonly described as the least confidential type of communication, equivalent to sending an online postcard. This means that law firms must implement protocols ensuring that confidential and sensitive information remains confidential. These rules also apply to attachments, with some ethics committees opining that it is ethically improper to send Rule 1.6 information without safeguards such as encryption or by using file-sharing sites and services.
• Case Management Software: Used to track and manage case information, deadlines, and client details, these products contain a wealth of information, yet many law firms have no protocols to assure that staff do not access or abscond with data protected by the attorney-client privilege. As a practical matter, insiders, often disgruntled or otherwise leaving the firm, are the root of case management data breaches.
• Voice Recognition Software: Despite the prevalence of integrated solutions, many attorneys use outside services for transcription. As a result, these attorneys are entrusting their client information to vendors that may be in different countries and not have the same laws regarding confidentially. The attorneys using these services have a duty under Rule 5.3 to monitor these entities and assure confidentiality.
• Scanners and Copiers: These devices often store images of the data copied or scanned, yet do not ensure that any stored data are removed and not shared with the vendors that supply and service these machines.
• Video Conferencing Tools: Zoombombing became a “thing” during the pandemic, yet law firms often fail to ensure their meetings are secure.
• Cloud Solutions: By definition, using the “cloud” means storing data on someone else’s computers, and lawyers must be sure that their cloud providers store firm information securely. At a minimum, providers must employ strong encryption, require passwords, and take other measures to protect firm data.
• Mobile Devices and Apps: The New York State Bar Association placed mobile device security squarely in the face of lawyers when its ethics committee opined that lawyers must ensure that no confidential or sensitive data such as Social Security numbers are shared with third-party apps in which an individual may view the information. This opinion, later adopted and expanded upon by the Pennsylvania Bar Association Ethics Committee, is a warning to lawyers that they cannot use their smartphones to store client data in the same manner their children use the devices to store images downloaded from TikTok.

There is no question that technology helps law offices streamline their operations, enhances productivity, and allows them to provide better service to clients. There remains a tradeoff, however, and that is the practical and necessary requirement that all data be stored consistent with the Rules of Professional Conduct.

At TECHSHOW, attendees will learn about their ethical obligations to store data and much more. Mark the dates now, take advantage of early bird pricing, and discover why attendees rave about and return every year to ABA TECHSHOW.