From the Chair of the ABA Law Practice Division

Volume 40 Number 2


About the Author

Michael Downey is a legal ethics lawyer and litigation partner in the St. Louis office of Armstrong Teasdale LLP. Author of Introduction to Law Firm Practice (ABA, 2010), Mike teaches legal ethics and law firm practice at Washington University School of Law and professional responsibility at Saint Louis University School of Law.

Lawyers and Their Devices: Will Clients Show Interest?

Law Practice Magazine | March/April 2014 | The ABA TECHSHOW 2014 IssueThere is a technology battle brewing in many law firms, one that has serious implications for client service and contentment for law firm constituents, i.e., lawyers and staff. Recent events suggest this conflict—that is, the tension between constituent freedom and firm network and data security—may be heating up.

Addressing this tension, therefore, seems a good topic for this ABA TECHSHOW issue, a way for me to keep my commitment of writing my chair columns about law firm risk management related to the general theme of Law Practice.

In the early computer age, law firms could mandate the technology lawyers and staff used. Personal computers were expensive and basically immobile. Other technology bought for home use had few practical work applications. As a result, little conflict existed between firm technology and personal technology, because personal and professional technology rarely appeared in the same arena. Personal technology tended to stay home.

Technology developments of the 1990s encouraged everyone, including lawyers and law firm staff, to bring their personal technology to work. This infiltration did not center on devices; rather, it was to avoid personal Internet use—mainly shopping and email—on firm computers. Most firms deemed the infiltration pretty minor. They adopted technology that blocked certain websites, and a few adopted guidelines—often applicable only to staff—that limited personal use of computers. But many firms simply ignored personal use of firm technology.

The development of mobile devices over the last decade, however, brought personal technology infiltration to a critical level. Lawyers and staff often choose (and purchase) the mobile technology—smartphones, tablets, even laptops—they want to use to serve clients, outside and even inside the office

Facing pressure from this bring-your-own-device trend, many firms appeared to surrender. Legal press articles with titles like “Resistance Is Futile” warned firms to get out of the way of constituent-selected technology. Some firms did move out of the way, allowing lawyers and staff to purchase and use whatever devices they wanted without guidance or limitation. Other firms tried appeasement, for example, helping fund purchases as long as a buyer agreed to activate passwords and install specified programs, such as antivirus and encryption. Law firm meetings now sometimes look like middle school socials, with everyone watching or clicking on a different size, shape and brand of mobile device.

Most recently, news reports suggested the management-IT alliance that dominated earlier law firm technology was only down, not out. In April 2013, stories congratulated King & Spalding for adopting policies barring constituents from accessing home email while at work. Legal media and firm management see such policies as appropriate tools to address concerns that law firms now expose too much sensitive client information to hackers and others.

I anticipate that more firms will begin to adopt protectionist policies that may limit law firm constituents’ ability to select technology. I, too, have encouraged such policy changes, including in a 2010 National Law Journal article, “Serious About Confidentiality.” Yet I wonder now if the struggle will remain largely a two-party struggle, between law firms and their constituents.

Perhaps because they want to keep constituents happy, many firms have been relatively slow to adopt policies and procedures that provide greater protection to client information. Few firms have also acted in a way that suggests they see greater data security, and the certifications that may come with such protections, provides them with a meaningful competitive advantage in attracting and keeping clients. This reality makes me wonder if, in the next few rounds of the conflict, interested parties outside the firms—such as clients, insurers and perhaps even regulators—will apply pressure to have firms adopt greater protections for client data.



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