Ch-ch-ch-changes: How the Internet and modern computer technologies have entered the ABA Model Rules of Professional Conduct
Computer technology is pervasive in our everyday lives. Certainly technology plays a role in our private lives, whether it be our social media accounts, communication via Skype or text, cloud storage of personal photos and documents, or perhaps all of the above, and then some. Outside of our personal lives too, whether in our professional capacities or preparing for class, technology plays a significant role.
Since the computer and mobile technology invasion began, attorneys and professional organizations have been aware of the ethical impact these technologies inevitably have on legal practice. Thus, CLEs, ethics opinions, and law review articles abound discussing the ethics of social media use by attorneys, cloud computing in firms, and e-discovery. The ABA took this one step further last August, adopting several amendments to the Model Rules of Professional Conduct, discussing the lawyer’s roles and responsibilities when it comes to technology. (Note: where I’ve directly quoted the changes, italics indicate the changed language.)
Rule 1.0 – Terminology – 1.0(n) “Writing” or “Written” – where previously e-mail was listed among the examples of this term, this has been changed to the broader category of “electronic communications.”
Rule 1.1 – Competence – Comment 8 – “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology…”
Rule 1.4 – Communication – Comment 4 – This comment formerly contained a statement about prompt return of client phone calls. This has been changed to say that “[a] lawyer should promptly respond to or acknowledge client communications.”
Rule 1.6 – Confidentiality of Information – Comment 18 – This comment discusses the necessary safeguards attorneys must take to protect client information. “Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, 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 safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).” Both comments 18 and 19 of this rule additionally discuss data privacy as governed by state and/or federal law, and that, owing to such laws, the attorney may be bound to follow additional safeguards to maintain the privacy of client data.
Rule 4.4 – Respect for Rights of Third Persons – 4.4(b) – “A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.” Comment 2 to this rule states that electronically stored information includes “email and other forms of electronically stored information, including embedded data (commonly referred to as ‘metadata’), that is subject to being read or put into readable form. Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”
Rule 5.3 – Responsibilities Regarding Nonlawyer Assistance – Comment 3 – This comment, pertaining to nonlawyers outside the firm, states that “[a] lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client.” It cites as examples of this a document management company that creates/maintains a database for your firm; using a third party for printing and scanning client documents; and storing client information via an “Internet-based service.” This comment goes on to say that, much like the ethical requirements regarding nonlawyers within the firm, the lawyer must take reasonable steps to ensure that the outside nonlawyers follow the ethical standards of the attorney when it comes to maintaining the confidentiality and privacy of the client’s information.
Rule 7.2 – Advertising – Several comments to this rule have been updated to include “Internet-based advertisements” and “other forms of electronic communication” among the many forms of lawyer advertising that fall under this rule. Comment 3, moreover, states the power of electronic advertising in its many forms: “Television, the Internet, and other forms of electronic communication are among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public.”
Rule 7.3 – Solicitation of Clients – Comment 1 – This comment discusses the difference between a solicitation and a regular advertising communication, and discusses it in the context of various different types of advertising, including several ways in which an attorney’s services can be advertised online.
So what does all of this tell us? For the most part, these changes are simply expansions of previously existing rules and comments to recognize the role that computer technology plays in attorney practice and advertising; however, some of the other changes go beyond this, discussing for example issues of data privacy and the balance between maintaining that privacy to the utmost through certain software and the difficulty and technical issues such high privacy standards can cause, potentially affecting the attorney’s use of that data.
Particularly interesting is the comment to Rule 1.1 on attorney competence that states that an attorney must possess knowledge of the “benefits and risks associated with technology” to comply with this rule. Is this simply a cautionary comment, to make sure attorneys desiring to use cloud-based storage, for example, know the risks of involving a third party in housing clients’ data and information? Or is it equally addressed to attorneys who have not jumped into the latest technologies, suggesting that, to be the best attorney you can be, it is important to utilize the best and most efficient means of representing your clients, which may very well include the introduction of certain software and Internet services into your practice?
I would imagine that further interpretation of these changes will be forthcoming through CLEs and ethics opinions, but students preparing to enter the legal profession will do well to keep these changes in mind, and, as the language of the previously mentioned comment suggests, consider the “benefits and risks associated with technology” as you prepare to practice. Technology can certainly do a lot to enhance the legal profession, but with each new service comes new legal and ethical implications to be considered.