We are stuck with technology when what we really want is just stuff that works.
–Douglas Adams, The Salmon of Doubt: Hitchhiking the Galaxy One Last Time (2002).
Before the internet changed the world, compliance with ethical rules seemed simple. If you were truthful, loyal, and didn’t bounce client trust account checks, you were good. Legal malpractice suits were mainly brought for blown statutes of limitations.
As technology transformed the world for our clients, it also revolutionized how we practice law. For example, in today’s environment, it is crucial for lawyers to know how to use email and create an electronic document to provide competent legal services. (ABA Comm. on Ethics & Pro. Resp., Formal Op. 477 (2017) (discussing the securing of communication of protected client information)).
Technology has affected the practice of law in other ways too. While technology advanced, huge (and not-so-huge) law firms dissolved, lawyers moved, new firms formed, and old firms regrouped. All of this increased lawyer mobility and the great expansion of remote work means security software and conflict-checking apps are needed now more than ever.
Technology progresses really fast. Laws and ethics codes do not. That is why new technologies create practical problems for lawyers before creating ethical ones, and it is why it is important to keep the following in mind, so new technologies and legal ethics are twain that never meet.
Due to the pandemic, working from home is becoming normal, requiring law firms to develop new remote workplace procedures.
It is important for law firms and attorneys to consider security measures when working remotely. Attorneys shifting to remote work need to plan. Plan for interoffice communications and document exchanges. Plan for accessing data. Plan for preventing computer viruses and other cybersecurity threats.
Beyond access and security concerns, a lawyer who works in a jurisdiction where the lawyer is not licensed, be it at the attorney’s home or somewhere on vacation, could face an unauthorized practice of law (UPL) claim. This is another consequence of lawyer mobility and increased remote work. To avoid UPL claims, an attorney who performs work outside of a jurisdiction in which they are licensed must consider the relevant rules in both places (typically a version of ABA Model Rule 5.5).
Alice Auclair Jones, licensed to practice in Kentucky, applied for admission in Ohio but was denied because of a finding that she had engaged in UPL by practicing Kentucky law from an Ohio office. Jones appealed. (In re Jones, 123 N.E.3d 877, 878 (Ohio 2018)). The Ohio Supreme Court told the admissions board to lighten up:
Are we to ban lawyers from setting up a secondary office inside their homes so that they can access their files remotely simply because their homes happen to be in Ohio and their practices in another state? . . . [A]re we really going to say that she has engaged in the unauthorized practice of law because she does New York legal work at her vacation home?
Several other jurisdictions also have issued opinions dealing with remote work and UPL. The ABA has issued two opinions, neither particularly detailed regarding what a lawyer can do. Formal Opinion 495 advises consideration of the UPL rules wherever one practices. Formal Opinion 498 identifies ethics rules most likely violated by remote practice; it offers standard advice to use secure internet access and passwords. In essence, lawyers need to use common sense while the ethics of working from home are being sorted.
Most lawyers now use email to communicate with clients and others. Even though those emails go through servers worldwide, email encryption has never been required in jurisdictions not subject to our laws. Email encryption may seem like common sense, but it’s never been required simply because it makes email less convenient. Ethicists still encourage encryption over convenience, especially given the explosion in remote work, particularly for sensitive communications. Nevertheless, it remains generally acceptable for lawyers to communicate with clients via unencrypted email.
Replying to an email may seem like common sense too. But according to a new opinion from the ABA, attorneys using the Reply All button could violate ethical duties.
One of a lawyer’s most important ethical duties is to inform clients of significant events in their cases. When we mail letters printed on paper stationery to opposing counsel, we send “hard” copies to our clients. But many attorneys “CC” their clients when they email opposing counsel. If you are in the habit of CCing clients on emails to others, break that habit now.
Do you really want opposing counsel to communicate directly with your client when counsel hits Reply All in response to your email? Even worse would be for that practical problem to become an ethical one. If you send an email to opposing counsel with a “CC” to your client, the ABA’s opinion is that you will have impliedly consented to allow your opponent to communicate directly with your client. (ABA Comm. on Ethics & Pro. Resp., Formal Op. 503 (2022) (discussing the use of “reply all” in electronic communications)).
Many may disagree with the ABA’s opinion. How can consent to communicate with another lawyer’s client be implied without regard for the actual wishes of the client? Whether or not one agrees with the idea that implied consent to contact an attorney’s client is shown by a “CC” on an email, the safer practice is to forward your client a copy of an already-sent email. That is also safer than BCCing the client.
Lawyers are not like other people when it comes to social media. Our duties of confidentiality, loyalty, and even the attorney-client privilege, are all antithetical to the “share everything!” commands of the tech companies. Some courts have held that users of social media networking sites can’t expect confidentiality because such sites typically allow third-party site administrators access to all the content stored on their servers or in user accounts.
Social media may cause attorneys trouble. For example, the solicitation of clients is regulated by Model Rule 7.3, which prohibits real-time contact with prospective clients. So, for example, if you’re still on Twitter, don’t respond to a tweet from someone who says they’ve just been arrested for street racing by saying that you’re a racing attorney who handles street racing cases at half price.
Some jurisdictions treat lawyer blogs like websites, and some do not. In Texas, a blog is not an advertisement if it consists of educational information or commentary. In California, a website is not considered a solicitation under Rules 7.3 or 7.4, but every piece of letterhead is deemed an advertisement.
Social media seems to make some attorneys spew forth in ways that violate the most basic canons of ethics. Delusions of anonymity can result when electronic devices are used to post on the internet, especially when screen names are used. Worse, some lawyers mistakenly think juicy details from cases can be discussed so long as they are taken from public records.
Although blogs are often written to be personal in tone, a lawyer may not reveal information in a blog relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules. (ABA Comm. on Ethics & Pro. Resp., Formal Op. 480).
One Illinois attorney was disciplined—and fired—for publishing astounding client confidences, secrets, and personal details about a client’s cases on her internet blog. (In re Peshek, No. 6201779 (Ill. Atty. Reg. & Disc. Comm.) (2009)).
Another important reason for being thoughtful about internet postings is the internet’s memory. What you post may not be erasable. Old web pages might never disappear.
Next time you want to investigate an expert witness’s prior web pages, go to the Internet Archive—Wayback Machine. This site can be very useful for impeachment purposes, for example, because many people have no memory of their old web pages.
New technologies provide attorneys with better, more efficient practices, allowing us to work remotely, use email for routine communications, and market ourselves as creatively as possible—as long as we stay within the limits of current ethics rules.
It will be a while before ethics rules catch up to where we are now, and by then, the state of the art will have evolved to yet another level. Meanwhile, keep using good sense to avoid trouble.
Common sense is seeing things as they are; and doing things as they ought to be.
–Harriet Beecher Stowe
