Reality bytes: New ABA rules require you to get with tech program--like it or not
By G.M. Filisko
Apr 1, 2013, 07:50 am CDT
No excuses, attorneys. It’s time to add boning up on the latest technology to your to-do list.
That’s the only way to fulfill the requirements of six resolutions the ABA House of Delegates adopted in August to amend the association’s Model Rules of Professional Conduct.
Among every lawyer’s new duties: keeping up with technology relevant to the client and the representation, and protecting electronically stored confidential client information. Seems straightforward enough. But it’ll almost certainly require more of your brain’s daily bandwidth.
Technology is pervading every legal specialty, and it’s your job to track trends in your practice areas, contends Lucy L. Thomson, a solo practitioner and tech consultant in Alexandria, Va. Thomson also chairs the ABA Section of Science and Technology Law.
“You’d look at it from the perspective of what work you, as a lawyer, would be doing for a client,” Thomson explains. “You have to understand the technology thoroughly enough to make the right decisions and ask the right questions. … A good example is you have to know that access to your clients’ online accounts and passwords is an issue and what the scope of the accounts might be.”
THINK OUTSIDE THE PRACTICE
However, your duty doesn’t stop at your practice’s borders. You must also track how technology is revolutionizing the economy, says George L. Paul, a partner at Lewis & Roca in Phoenix and co-chair of the ABA E-Discovery and Digital Evidence Committee.
“Here’s the idea,” Paul says, “and these examples are starting to pop up everywhere. Businesses are starting to use social networks to hire people, and some are saying, ‘Let us befriend you on Facebook.’ When you have a trend like that, there can be a sea change in a year or two, and it implicates a lot of issues. Anybody practicing has to be on the lookout for these new trends and watch out if they affect your area of practice.”
You also have to delve into the details of the technology you’re using in your own practice. “Internally, you have to maintain the security of clients’ information so you don’t suffer a data breach, your trust account isn’t hacked, and you don’t incur liability for the inadvertent disclosure of insurance and health care information for your employees and clients,” says Steven W. Teppler, a partner at Kirk Pinkerton in Sarasota, Fla., and co-chair of the ABA E-Discovery and Digital Evidence Committee.
“A lot of lawyers use Dropbox to store information,” Teppler says. “But its terms of service say that if it receives a legal inquiry, which may or may not include a subpoena, it can choose to release your client’s information. I tell people not to use Dropbox, but it’s the latest, hottest thing. Failing to manage risk at that level is dangerous, he adds. “You’re saying, ‘I built a house. It has 10 doors, I put locks on 9 of them, and it hasn’t been robbed in 2 years. So it’s safe.’ ”
If you’re a litigator, you have to competently handle the e-discovery curve balls. Paul describes one scenario with cloud storage of data required for e-discovery “and the data was migrated to a company in Thailand—and it won’t talk to you. In e-discovery, you have to be extremely proactive.”
How can you get—and stay—up to speed? Dive in, or phone a friend. “A lot of lawyers say, ‘I didn’t go to law school to learn about technology,’ ” says Thomson. “That’s perfectly OK. Those people need a colleague or expert they can rely on. But they still need to know enough to be sure they’re not overlooking important issues.”