Technology - Frequently Asked Questions
Why is Technology Important?
Not only is technology rapidly changing, the rate at which changes are introduced has grown exponentially over the last two decades, fostering the emergence of social media websites and other virtual technologies. Due to this technological boom, the legal community finds itself scrambling to understand and address many new and unfamiliar ethical ramifications that arise when using new technology. Adding to the confusion, a majority of states have not kept up with the changing environment, and have no ethical rules or standard of care applicable to specific technologies. Making matters worse, despite having no clear rules to follow, attorneys still face disciplinary action for the unethical use of technology.
At this point, ethical rules pertaining to advertising, confidentiality, attorney-client relationships, and the judiciary represent some of the biggest challenges for attorneys in the digital age. Nonetheless, we can draw guidance from the more general ethical rules so as to provide guidance on how they apply to new technologies.
Do Lawyers Have a Duty of Technological Competency?
- Model Rule 1.1: Duty of Competency
- Lawyers have a duty to provide competent representation to a client, using the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”1 In addition, the duty of competency specifically requires the “use of methods and procedures…of competent practitioners.”2
- Deadlines in the 21st Century: Do Lawyers Have a Duty of Technological Competency?
- Lawyers do have a duty to stay “abreast of changes in the law and its practice, including the benefits and risks associated with technology.”3
- This rule is especially relevant today because many states have adopted e-filing alternatives for lawyers seeking to meet filing deadlines.4 However, as the competency rule makes clear, lawyers must weigh the benefits against the risks of technology in determining how best to provide competent representation.5 Competency with computers is virtually mandatory now, with courts not taking kindly to excuses of computer illiteracy.6
1 See MODEL RULES OF PROF’L CONDUCT R. 1.1(1983) (amended 2013).
2 See MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 5 (1983) (amended 2013).
3 See MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 8 (1983) (amended 2013).
4 See generally Jeffrey L. Mills & W. Kelley Stewart, E-Filing or E-Failure: New Risks Every Litigator Should Know, FOR THE DEFENSE (2011).
5 See MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 8 (1983) (amended 2013).
6 See e.g., Kanoff v. Better Life, 350 F. Appx. 655, 658 (3rd Cir. 2009) (scrutinizing that “compliance was not achieved because counsel failed to educate himself about a sea change in filing requirements that had taken place more than three years before the relevant events of the instant case.”); Arrington v. La Rabida Children’s Hosp., No. 06 C 5129, 2009 WL 928922, at *3–4 (N.D. Ill. Apr. 3, 2009) (criticizing that “[Counsel] appears to persist in believing that his decision not to learn to e-file absolves him from the rules applicable to all attorneys practicing in this district. The court understands that [counsel] has taken the position that he is computer illiterate and cannot use a computer in anyway, and is thus incapable of learning to e-file…[The court] expects that all counsel appearing before the court will either learn to e-file or arrange for someone to do so for them.”)
What are some model rules that should be considered when using technology?
- Model Rule 1.4: Communication
- To avoid communication problems, lawyers should regularly consult their clients and keep them informed about the representation, just as local ethics rules generally require. Lawyers are typically bound to consult with their clients about the methods used to accomplish the objectives of representation.1 Lawyers should also reasonably inform clients about the status of the representation, including “significant developments affecting the timing or the substance of the representation.”2 See “Client Relations” to learn more about resolving communication issues with clients.
- Lawyers are generally obligated to “promptly respond to or acknowledge client communications.”3 It is worth noting that this clause previously applied only to client telephone calls.4 In light of modern technology, however, recent revisions to the ABA Model Rules broadened this clause to encompass all types of client communications, including those made electronically and through other modern technologies. As always, be sure to check the rules in your jurisdiction to see what they require.
- Model Rule 1.6: Confidentiality of Information
- Lawyers have a general duty to keep information relating to client representation confidential5, and must take reasonable steps to avoid “the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”6 Accordingly, various types of documentation must be kept secure. As ethical rules point out, this “fundamental principle” is important because it “contributes to the trust that is the hallmark of the client-lawyer relationship.”7
- Further, the duty of confidentiality applies to all documentation “relating to representation, whatever its source.”8 It is not exclusive just to confidential communications between a lawyer and client.9
- In addition, lawyers should not reveal confidential documentation after representation concludes because the duty continues indefinitely.10
- Lawyers can avoid an ethical violation by competently safeguarding representation information.11 The disclosure of confidential documentation usually will not result in an ethical violation when a lawyer takes reasonable steps to prevent access or disclosure of the information.12 Whether the measures are reasonable may depend on, “the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.”13
- When using technology, a lawyer must take reasonable steps to prevent documentation from reaching unintended recipients.14 Although “[t]his duty…does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy,” it would nonetheless be wise for lawyers to use extra confidentiality protections because “[s]pecial circumstances…may warrant special precautions.”15 Broad factors to consider are, “the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.”16
- Lawyers should err on the side of caution when using technology to create, modify, send, or upload documentation since ethical rules offer little clarity about what exactly constitutes a violation in this area. At a minimum, lawyers should understand the privacy settings and capabilities of technology used given that ignorance of lack of privacy protections in other settings has never been accepted as an excuse for a breach of confidentiality. Some states provide more guidance than others on the topic. As always, be sure to check your local rules to see what they require.
- There are some circumstances in which a lawyer may be permitted or required to disclose confidential information, but as a general precaution, disclosure should be avoided. As always, be sure to check the requirements of your jurisdiction.
- Model Rule 1.18: Duties to Prospective Clients
- Sometimes a former prospective client may try to argue that an attorney-client relationship existed; even when representation never materialized. In order to avoid this problem, it would be wise to send a non-engagement letter to the prospective client after a consultation to confirm in writing that the lawyer does not represent the person. See “Engagement, Non-Engagement, and Disgengagement” for more information on creating these letters.
- There is no rule detailing what qualifies as a consultation and the ease of communicating online complicates the matter even further. However, some factors a lawyer may consider include the time and depth of the communication.17
- A lawyer should keep in mind that communications may be written, oral, or electronic depending on the circumstances.18
- When a lawyer requests specific information about a potential representation through the use of any type of medium, and receives a response, then a consultation is likely to have occurred, and an attorney-client relationship established.19 This applies to email, online chat services, Facebook, Twitter, and LinkedIn. In order to avoid the creation of an attorney-client relationship in these situations, lawyers should use clear disclaimers in all communications with the prospective client.
- Conversely, if a lawyer receives information in response to advertising that simply lists the lawyer’s education, experience, practice areas, and contact information, then a consultation is not as likely to have occurred.20
- See “Conflicts of Interest” for more information about the duties owed to prospective clients.
- Model Rule 4.4: Respect for Rights of Third Persons
- Technology has dramatically changed the way in which lawyers communicate. Today, online communication and the electronic transmission of documents are no longer the exception; they are the rule. This adds a new layer of complexity to the already complex ethics rules.
- One such issue is determining what happens when a lawyer receives a physical document or electronically stored information that was not intended for them. Sometimes lawyers send the right information to the wrong person.21 Other times, lawyers send the right person the wrong information such as the wrong documents, or metadata that the lawyer failed to remove.22 Ethical rules provide some guidance on the inadvertent transmission of electronic material.23 If a lawyer knows or should have known that a document or electronically stored information was inadvertently sent, then the receiving lawyer has a duty to notify the sender so that they can take protective actions.24 The rules do not address whether or not the person must return it, or whether the disclosure waives privileges to that information.25 It is in the lawyer’s professional discretion to delete the material or leave it unread unless applicable law provides otherwise.26
- The underlying problem is not a new one; sometimes lawyers make mistakes. However, technology makes it that much easier for mistakes to occur. Now, lawyers can make serious errors up with the click of a button from the comfort of their very own office chairs.
- Model Rule 5.3
- Lawyers have a general duty to supervise nonlawyer assistants and must “make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”27 The duty of supervision applies to nonlawyers inside the firm and outside the firm. Recently, more law firms have outsourced technical tasks to nonlawyer groups outside the firm like “hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information.”28
- Technology presents a unique challenge when it comes to the duty of supervision, especially concerning confidentiality. Be sure that nonlawyers understand that they cannot “disclose information relating to the representation of the client,” regardless of whether they use a personal email, Facebook, Twitter, or LinkedIn page.29 These mediums reach large audiences in mere seconds and a careless disclosure of confidential information can have a devastating effect.
- However a supervisory lawyer may not be held liable for a nonlawyer’s violation the if lawyer has taken actions to avoid or mitigate the consequences of the nonlawyer’s conduct.30
- Model Rule 5.5:
- As a general rule, lawyers are prohibited from practicing in a jurisdiction where they are not admitted, except for certain, limited circumstances.31 Since the Internet knows no jurisdictional boundaries, there is an increased risk of unauthorized practice of law. However, there is not much guidance provided in this area. The Model Rules simply provide that “communications advertising legal services in [a] jurisdiction by lawyers who are admitted to practice in other jurisdictions,” are not allowed.32 As a precaution, lawyers should ensure that online materials that could reasonably be perceived as advertising are not directed at jurisdictions where the lawyer is not admitted. As always, be sure to check your local rules to see what they provide.
- Model Rule 7.1: Communications Concerning A Lawyer’s Services
- When drafting marketing materials, lawyers should abide by ethical rules governing communications about a lawyer’s services.33 A lawyer should avoid making false or misleading statements that contain material misrepresentations or omit necessary facts.34 In addition, lawyers should be aware that even truthful statements can be unethical if they are misleading.35 As always, be sure to check the specific rules in your jurisdiction to see what they require.
- See “Marketing” for further discussion of lawyer advertising.
- Model Rule 7.2: Advertising
- Lawyers can advertise legal services in “written, recorded or electronic communication, including public media.” 36 This marketing must include the name and office address of at least one of the lawyers responsible for the content.37
- As a general rule, lawyers should avoid exchanging anything of value for a recommendation.38 This is especially important today since social media websites offer widely used recommendation features.
- See “Marketing” for further discussion of lawyer advertising.
- Model Rule 7.3: Direct Contact with Prospective Clients
- In most circumstances, lawyers are prohibited from soliciting clients for a fee through “in-person, live telephone or real-time electronic contact.”39 Even where exceptions exist, lawyers must respect a prospective client’s wishes to no longer be contacted, and the solicitation cannot involve coercion, duress, or harassment.40 The difference between solicitation and advertising is that solicitation involves direct contact with a specific person or group for employment purposes and advertising is targeted at the general public.
- Lawyers are still permitted to market their services to prospective clients as long as the communication does not occur in real-time, and the communication must be formatted as “advertising material.”41 In general, according to ABA rules, “[e]very written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication.”42 As always, be sure to check the rules in your jurisdiction to see what they require.
- See “Marketing” for further discussion of lawyer advertising.
- Model Rule 7.4: Communication of Fields of Practice and Specialization
- Marketing a lawyer’s specialties raises distinct ethical concerns.43 Generally, lawyers are entitled to advertise their practice areas.44 However, a lawyer may not communicate a specialty unless the requisite state authority or accredited organization certified the attorney as a specialist and is identified in the communication.45
- See “Marketing” for further discussion of lawyer advertising.
1 See MODEL RULES OF PROF’L CONDUCT R. 1.4 (a)(2) (1983) (amended 2013).
2 See MODEL RULES OF PROF’L CONDUCT R. 1.4 cmt. 3 (1983) (amended 2013).
3 See MODEL RULES OF PROF’L CONDUCT R. 1.4 cmt. 4 (1983) (amended 2013).
4 See American Bar Association Commission on Ethics 20/20, Report to the House of Delegates, Res. 105A, at 4 (Aug. 2012).see also Andrew Perlman, ABA Adopts Changes to the Model Rules of Professional Conduct, LEGAL ETHICS FORUM (Aug. 6, 2012), (discussing the 2012 amendments to the Model Rules).
5 See MODEL RULES OF PROF’L CONDUCT R. 1.6(a) (1983) (amended 2013).
6 See MODEL RULES OF PROF’L CONDUCT R. 1.6(c) (1983) (amended 2013).
7 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 2 (1983) (amended 2013).
8 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 3 (1983) (amended 2013).
9 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 3 (1983) (amended 2013).
10 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 20 (1983) (amended 2013).
11 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 18 (1983) (amended 2013).
12 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 18 (1983) (amended 2013).
13 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 18 (1983) (amended 2013).
14 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 19 (1983) (amended 2013).
15 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 19 (1983) (amended 2013).
16 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 19 (1983) (amended 2013).
17 See MODEL RULES OF PROF’L CONDUCT R. 1.18 cmt. 2 (1983) (amended 2013).
21 See MODEL RULES OF PROF’L CONDUCT R. 4.4 cmt. 2 (1983) (amended 2013).
22 See MODEL RULES OF PROF’L CONDUCT R. 4.4 cmt. 2 (1983) (amended 2013).
23 See MODEL RULES OF PROF’L CONDUCT R. 4.4(b) (1983) (amended 2013).
24 See MODEL RULES OF PROF’L CONDUCT R. 4.4 cmt. 2 (1983) (amended 2013).
25 See MODEL RULES OF PROF’L CONDUCT R. 4.4 cmt. 2 (1983) (amended 2013).
26 See MODEL RULES OF PROF’L CONDUCT R. 4.4 cmt. 2 (1983) (amended 2013).
27 See MODEL RULES OF PROF’L CONDUCT R. 5.3(b)(1983) (amended 2013).
28 See MODEL RULES OF PROF’L CONDUCT R .5.3 cmt. 3 (1983) (amended 2013).
29 See MODEL RULES OF PROF’L CONDUCT R. 5.3 cmt. 2 (1983) (amended 2013).
30 See MODEL RULES OF PROF’L CONDUCT R .5.3(c)(2) (1983) (amended 2013).
31 See MODEL RULES OF PROF’L CONDUCT R. 5.5(a) (1983) (amended 2013).
32 See MODEL RULES OF PROF’L CONDUCT R 5.5 cmt. 21 (1983) (amended 2013).
33 See generally MODEL RULES OF PROF’L CONDUCT R. 7.1 (1983) (amended 2013).
34 See MODEL RULES OF PROF’L CONDUCT R. 7.1 (1983) (amended 2013).
35 See MODEL RULES OF PROF’L CONDUCT R. 7.1 cmt. 2 (1983) (amended 2013); MODEL RULES OF PROF’L CONDUCT R. 7.1 cmt. 3 (1983) (amended 2013).
36 See MODEL RULES OF PROF’L CONDUCT R. 7.2(a) (1983) (amended 2013).
37 See MODEL RULES OF PROF’L CONDUCT R. 7.2(c) (1983) (amended 2013).
38 See MODEL RULES OF PROF’L CONDUCT R. 7.2(b) (1983) (amended 2013).
39 See MODEL RULES OF PROF’L CONDUCT R. 7.3(a) (1983) (amended 2013).
40 See MODEL RULES OF PROF’L CONDUCT R. 7.3(b) (1983) (amended 2013).
41 See MODEL RULES OF PROF’L CONDUCT R. 7.3(c) (1983) (amended 2013).
42 See MODEL RULES OF PROF’L CONDUCT R. 7.3(c) (1983) (amended 2013).
43 See generally MODEL RULES OF PROF’L CONDUCT R. 7.4 (1983) (amended 2013).
44 See MODEL RULES OF PROF’L CONDUCT R. 7.4(a) (1983) (amended 2013).
45 See MODEL RULES OF PROF’L CONDUCT R. 7.4(d) (1983) (amended 2013).
How Can Practice Management Software Help My Practice?
- Practice management tools automate law firm functions and commonly include case management, contact management, time tracking, document assembly, and calendaring and docketing features.1
Case Management: Organizes cases into a single database that features case information, conflicts of interest checking, statute of limitations checking, and advanced searching.2
See “Conflicts of Interest” for more detailed information about these situations.
- Contact Management: Archives detailed phone and email information; offers callback reminders.3
- Time and Billing: Tracks various types of billable time on an individual or firm basis, integrates time tracking information with other time, billing, and accounting platforms; produces client invoices; manufactures billing reports for individual lawyers.4
Calendaring and Docketing: Maintains a master calendar with scheduling features and allows firm employees to filter tasks, deadlines, appointment, and meetings by day, month, and year.5
See “Missed Deadlines” for more information on avoiding the pitfalls of a late submission.
- Document Assembly: Contains document drafting features, and allows integration with other word processing programs.6
What’s Important in A Practice Management Tool?
- Consider the chart provided by the ABA that assists in the review of various methods and tools by analyzing a variety of practice management offerings by price, technical requirements, front office tasks, back office tasks, software compatibility, mobile access and technical support.7
- For additional advice on selecting a practice management option, see Jared Correia, Law Practice Management Software: A Holistic Remedy, Attorney at Work (Oct. 31, 2011).
- Explore the Top 10 Product Announcements from the 2014 ABA Techshow, which includes several up and coming practice management technologies.8
- Keep firm size in mind when selecting practice management software; certain programs cater to the needs of larger law firms while others focus on serving medium or small firms.9
- Legal technology consulting services can also provide advice on which practice management tool is best for your firm.10
Tip: Participate in Training
- Training can benefit an entire firm by allowing each lawyer and non-lawyer staff member to utilize the practice management software to its fullest extent.
- Training may be offered by the law practice management company itself or through a legal technology consulting company.
1 See ABA Law Practice Division, Practice and Case Management Software, LEGAL TECHNOLOGY RESOURCE CENTER.
7 For a detailed comparison of various practice management software options, see ABA Law Practice Division, Practice/Case Management Software Comparison Chart for Solo/Small Firm, LEGAL TECHNOLOGY RESOURCE CENTER (2012).
8 See Robert Ambrogi, Top 10 Product Announcement at ABA Techshow, LAW SITES (Mar. 31, 2014).
9 See ABA Law Practice Division, Practice and Case Management Software, LEGAL TECHNOLOGY RESOURCE CENTER.
10 For tips on hiring a consultant, see ABA Law Practice Division, FYI: Hiring a Freelancer or Consultant, LEGAL TECHNOLOGY RESOURCE CENTER.
How Can a Master Calendar System Help My Practice?
- A prudent lawyer should keep all appointments, deadlines, and events all in one place, instead of having these items spread across multiple calendars. A firm-wide master calendar also allows for better deadline management because other firm members have an opportunity to spot individual calendaring errors.
- While having a master calendar is best, consider maintaining that calendar in multiple ways in case of emergency. For example, keeping both an electronic and paper copy in case the electronic system fails is recommended. In addition, keep your calendar and all deadlines and dates backed up on an off-site server in case your office system fails, such as during a computer virus or a fire.
- Deadlines can also be missed when the wrong dates are entered into calendaring systems. It’s always a good practice to have the dates checked before and after entering them on the calendar, and by more than one person. Consider using a calendar system with multiple independent inputs so that more than one individual reviews the deadline before it is entered.
- See Missed Deadlines for more information on avoiding the pitfalls of a late submission.
Risk Management Best Practices Database Legal Statement
Information provided by Attorney Protective is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. These best practices are not intended to meet or establish the standard of care, and sometimes recommend practices that exceed the standard of care. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of Attorney Protective's Best Practice Database have been carefully researched, Attorney Protective makes no warranty as to the accuracy, applicability or timeliness of the content. Anyone wishing to reproduce any part of the Attorney Protective Best Practices Database content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to email@example.com. Additionally the rules cited in the contents of this database may have since changed. You should check the laws and model rules in your state for specific information on the topics addressed here.