Speakers Warn Lawyers About Tech Ignorance

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By Samson Habte

June 1 — Attendees at the 41st ABA National Conference on Professional Responsibility might have been forgiven for thinking they mistakenly registered for a symposium on technology, rather than a forum on broader developments in legal ethics, bar regulation, law firm management and malpractice risks.

Technology issues, including social media use, dominated discussions at five of the 13 panels at the conference, held in Denver May 28–29.

Experts have long predicted that technology would change legal practice. Several speakers expressed a clear view on that issue: the future is now.

Panelists at one session warned about malpractice risks that arise when lawyers fail to understand how social media use can impact clients' cases.

Another panel featured law firms' general counsel with conflicting views on the advisability of allowing firm employees to use personal mobile devices as work tools.

Risks to confidentiality—the primary reason for opposition to “bring your own device” policies—were also a recurring concern for speakers on other panels.

A discussion on recent developments in confidentiality featured one speaker who highlighted a pendulum-swinging trend among ethics committees that are revisiting the question of whether lawyers should be required to use encryption when e-mailing clients.

Another expert gave a detailed presentation on Federal Rule of Evidence 502(d), which allows litigation adversaries to enter into court-enforced agreements that provide for the return of privileged materials unintentionally disclosed in responding to discovery requests for electronically stored information (ESI).

No Luddites

In 2012, the ABA amended Model Rule 1.1 on competence by adopting Comment 8, which states that lawyers must keep pace with technological changes to meet their duty of competence to clients.

The new comment may have been the most frequently cited provision at the conference, whose attendees included bar officials, law firm general counsel, legal ethics consultants, and lawyers who defend malpractice and attorney discipline cases.

Charles H. Gardner, a California lawyer and media executive who moderated a panel on “Social Media Policies and Procedures in the Firm Setting,” cited a 2011 case in which a Maryland court declared: “It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.”

That admonition was seconded by panelist Jennifer Ellis, who defends malpractice and attorney discipline cases for Philadelphia-based Lowenthal & Abrams PC.

“Failure to understand how social media can impact clients’ cases could lead to serious damage to a case which might result in a malpractice complaint,” Ellis wrote in materials prepared for the conference.

Internet Sleuthing

Ellis and another Philadelphia panelist—Thomas G. Wilkinson Jr. of Cozen O'Connor—said bar authorities in their home state have taken leading roles in applying the duty of technological competence to specific questions such as whether lawyers may advise clients to remove potentially damaging evidence from social media websites.

The emerging consensus, Ellis said, is that a lawyer can and should counsel clients to purge potentially damaging evidence from the Internet—so long as the lawyer also takes steps to preserve any information that may prove relevant and discoverable.

“Don't destroy the evidence; it's really as simple as that,” Ellis said, citing Philadelphia Ethics Op. 2014-5 and Pennsylvania Formal Ethics Op. 2014-300.

Conversely, the panelists stressed the importance of using the Internet to investigate litigation opponents—and of developing sound procedures for authenticating evidence gathered from online profiles.

Ellis said she videotapes herself and provides a running commentary of what she is doing when gathering online material. Such measures are important because social media companies rarely comply with discovery requests and won't help with authentication, she told attendees.

Emerging Issues

University of Georgia law professor Lonnie T. Brown said the consensus on communicating with clients through unencrypted e-mail—driven by a 1999 ABA ethics opinion that approved the practice—may be giving way as authorities reconsider the risks of e-mail interception.

Speaking at a session on developments in confidentiality, Brown said “we have come a long way in 16 years” since the ABA opinion was issued, and that a number of state ethics panels have shown a willingness to impose stricter security requirements on lawyers.

Brown cited California Formal Ethics Op. 2010-179 (2010), which identified six factors to consider when determining whether ethics rules prohibit the use of a particular form of technology to store or transmit client information.

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com