By R. Shawn McBride, Managing Member, R. Shawn McBride Law Office, P.L.L.C
Technology has come to the main stage in the legal industry and it is an item of great discussion is state bars nationwide. The American Bar Association, a voluntary trade organization of lawyers and frequent commentator on legal issues, has been paying close attention to technology and the law.
State Bar Involvement. Like the medical profession, among lawyer’s duties is a duty to keep their client’s information confidential. Unlike the medical profession and its HIPPA laws, regulation of lawyer’s confidentiality obligations over client files is primarily regulated at the state level – by the state Bars – rather than at a federal level. State Bars have responded in various ways to the increasing presence of technology in the legal field.
The State Bars promulgate rules of professional conduct by which lawyers must abide as a condition of their licensure. The State Bars also typically issue opinions under such rules to help lawyers understand their obligations. We have seen a number of state bars amending their rules of ethics to recognize technology changes. We have also seen a number of ethical opinions on the issue.
ABA Takes the Stage. The American Bar Association attempts to guide the profession by issuing a set of model rules of professional conduct which the various states may or may not adopt. Some American Bar Association proposals get adopted nationally over time. Others are not as popular.
In recent changes to the American Bar Association’s Model Rules, the American Bar Association specifically stated in comment to Rule 1.1 (requiring a lawyer to be competent to act on behalf of a client) that competence includes “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
Some state bars have acted and recognized these rules already. Others are likely to do so soon.
Lawyers Dealing with this Obligation.So with the growing use and ever changing technology, lawyers fact a real challenge. Ignoring technology is not an option as the American Bar Association has already explicitly recognized an obligation to understand technology. Additionally, whether or not technology is specifically address, lawyers do have an obligation to keep client information confidential.
The cloud and cell phones seem to be two areas of the greatest discussion. Both are items in common use that could be hacked or stolen permitting access to client information.
While cloud computing has existed in some form for many years, cell phones were a more common issue with the legal profession first. After years of discussion cell phones have become common in the legal profession. However, a review by each lawyer/law firm of their cell phone use and risk points is universally advised. At minimum this would include password protection and a system for protecting client materials on the phone.
The Cloud.Cloud computing has become a consideration in the legal profession more recently. As mainly non-legal businesses have used the cloud more and more, law firms started to follow suit. Proper cloud security remains a common point of discussion in legal and trade journals. It is hard to go to a legal conference anywhere where the issue of cloud computing and security is not discussed.
An interesting debate is whether the cloud is more or less secure than other methods of data storage. While the cloud seems new and inherently risky, many commentators have argued the traditional servers and computer systems are open to theft or destruction (such as by fire) in ways that cloud computing is not.
What to Do.Each lawyer/law firm is ultimately responsible for data security and for their client’s confidentiality to the extent required by the rules of professional conduct to which they are bound. There is an open need in the legal industry for tailored information solutions that recognize the unique regulatory landscape to which lawyers are subject.
Until uniform regulations and solutions begin to emerge we will continue to see lawyers dealing with these issues on an individual level, consistent with their level of understanding of technology, and we will see a great range of solutions employed.
As with other issues that have been grabbled with by the State Bars we can expect a changing landscape for the coming years until the regulators and the lawyers involved get a comfort with current technology.