Ethics & Technology
Recently, I spoke at a couple of CLE seminars where the topic was the clash/marriage of ethics and technology. I wanted to share some of the aspects of those seminars with you this month.
Law office management is centered around the concept of systems. For decades these systems have been based on paper. Paper calendars to docket our appointments. To-Do lists to remind us to take care of all of the tasks associated with handling a matter for a client. Paper rolodex’ to manage all of the contact information. Paper ticklers using index cards to avoid missing deadlines. Paper intake sheets to record biographical and key data for the client. Paper documents to execute and review. Paper letters to correspond with clients, associates and parties.
The digital revolution is here.
Today, electronic systems are replacing paper systems in all of these areas and more. There are several reasons why this is occurring.
One, electronic systems are more efficient. This allows a firm to accomplish one or a combination of three things – handle more cases and make more money, handle the same number of cases and improve quality of life, or handle the same number of cases and improve the quality of their legal services.
Two, electronic systems are superior in quality. Paper systems are generally not proactive. They don’t monitor the passage of time and then jump out of the card file and scream “Stop, Stop You need to get this done NOW!” Electronic systems can. They make sounds, display messages, send email messages. The paper calendar doesn’t fly up and say, “You have an appointment in 20 minutes. Don’t you think you need to be ready?” An electronic system will. When a staff member enters a new client on their rolodex, will it copy itself to all of the other rolodex’ in the law firm? Nope, but the electronic rolodex will. The debate is no longer a debate. Electronic systems win, hands down.
Third, electronic systems cost less. A typical electronic system may cost five to ten thousand dollars with training and configuration. It also eliminates the need for a human to handle the associated low-level paper based grunt work. Now you have a choice, you can eliminate staff or you can elevate their job responsibilities so they provide more value to the firm. For example, I would much rather my paralegal spend time working the adjuster, doing legal research or fine tuning my PowerPoint presentation than far less valuable document production, calendar or contact duplication. Since a staff person can cost between $25,000 and $35,000 a year, year after year, and the electronic system costs $10,000; I believe even we lawyers can handle this computation.
Unfortunately, electronic systems must still be understood and used appropriately or ethical and malpractice traps can crop up without our knowledge. Here are a couple of typical ways in which the improper use of an electronic system can land you in hot water.
We now have email to handle correspondence. It doesn’t handle all of it – yet. But the percentage is growing rapidly. Most law firms have taken to email. It is not difficult to learn how to use and it is certainly more convenient and less costly than a letter. So how does this tie into ethics?
What are the confidentiality concerns relating to the use of email? The ABA issued an opinion clearly setting out that encryption is not necessary to meet the Model Rules. Their reasoning being that you don’t use cryptography in confidential letters so why use it in an email. After all, an email is just an electronic letter, isn’t it? Unfortunately, the answer is no.
The U.S. Postal Service is much less vulnerable to undesirable interception than email. For someone to target a confidential letter after it hits the mailbox requires a contact inside the Post Office. However, someone with computer savvy and a bit of homework can set up a program to monitor and inspect targeted email traveling across the Web. It needn’t interfere with the email reaching its destination.
It’s more like steaming the envelope open, peeking in to see if the contents look interesting, and then resealing it and sending it on its way except there are no telltale signs to tip off the recipient. But unlike the Postal Service, there are no other employees on the Web to notice someone reading these emails. There are no special security systems in place specifically to protect against such monitoring. There are no Internal Affairs personnel either. Also, there aren’t as many legal consequences if I get caught and it is virtually impossible to detect whether such monitoring has occurred.
The N.C. State Bar issued an Ethics Opinion which requires attorneys to use ‘reasonable care’ to protect the confidentiality of electronic transmissions based upon the specific nature of the type of transmission utilized. The lack of encryption is not specifically approved. Apparently, if it would be ‘reasonable’ that you would expect someone to try and intercept confidential email or if the contents were so damaging that even inadvertent delivery to the wrong recipient could prove irreparable, then you should use encryption or equivalent protection.
In case you have joined the millions of consumers who use cellular phones to make business calls, you might be interested to know the standard is the same. And since cellular phone transmissions are much easier to intercept than either an email or a letter, you might want to think twice before allowing your client to blurt out potentially damaging information while communicating on one.
Cell phones can bleed over onto car radios, other cell phones, intercom systems, CB radios. They can also be monitored using relatively inexpensive devices available to the general public. So when Sam overhears Becky telling her attorney on the cell phone to pressure the local motorcycle shop to sell quickly because they need that last piece in order to begin the new office park and Sam tells George, his buddy, the motorcycle shop owner … well, you get the idea.
Electronic
docketing is available in many products. We can update or view other firm
members calendars. We can set reminders to appear on multiple computers so
staff members can assist the attorney in meeting deadlines. The Comment to Rule
1.3 of our ethical rules states, “A lawyer's workload should be controlled so that each matter can
be handled adequately.”
Electronic To-Do lists have reminders which can pop up and
proactively prompt us to take care of our client’s business. In fact, most will
tell you how many days sending the Alias & Pluries Summons has been on your
list or how many days you have left until the deadline.
Unfortunately, the reminder was set to pop up on the
attorney’s computer and not the staff person’s machine. Since the attorney is
almost always out of the office in court all day, and doesn’t want to learn how
to use the computer anyway, no one received the reminder that today was the
deadline to file the Complaint in the Jones case.
Oops. Better call Lawyers Mutual.
The Comment states, “Conduct that may constitute
professional malpractice does not necessarily constitute a violation of the
ethical duty to represent a client diligently. Generally speaking, a single
instance of unaggravated negligence does not warrant discipline. … Breach of
the duty of diligence sufficient to warrant professional discipline occurs when
a lawyer consistently fails to carry out the obligations that the lawyer has
assumed for his or her clients. A pattern of delay, procrastination,
carelessness, and forgetfulness regarding client matters indicates a knowing or
reckless disregard for the lawyer's professional duties.”
Systemic failure is the key to ethical discipline. By
putting proper docketing systems in place, and learning to use them properly,
ethical discipline is unlikely. Even single instances of failure are far less
likely to occur.
Now, some of you are probably saying, “If that’s the case,
I’ll just stick with the paper.” While this may work in the short term there
are a few problems with this approach.
First, the loss in efficiency in using a paper system is
noticeable. Generally speaking, in firms I have visited, firms without
significant electronic systems require 1.5 – 2.5 staff members per attorney.
Firms which are moderately automated require 0.5 – 0.7. Multiply this by
standard staff salaries and the impact should be clear. You may not be able to afford
to remain in a paper system.
Second, the paper system has its own idiosyncrasies leading to missed deadlines. As a rule, you are more likely to miss a deadline with a paper system since it requires more manual input. At some point (to which we are drawing nearer every day), the failure to use an electronic system will be strong evidence the attorney is not taking his ethical responsibilities to heart.
CONFLICTS OF INTEREST
The
Comment to Rule 1.7 states, “The lawyer should adopt reasonable procedures,
appropriate for the size and type of firm and practice, to determine in both
litigation and non-litigation matters the parties and issues involved, and to
determine whether there are actual or potential conflicts of interest.”
Conflict of Interest systems require all potentially adverse parties to be entered – not just clients. The electronic system can only search what is entered into it. The old saying, ‘Garbage In, Garbage Out’ is certainly applicable in this context. Entering fragments of contact information or not entering it at all makes the system useless or even dangerous.
Most malpractice providers offer a discount to firms utilizing electronic systems for conflict checking. The old memory test, “Uhh, no I don’t remember anyone by that name. Take the case.” is like using a leaky sieve to pan for gold. You’ll find some but you won’t catch them all.
What happens when we find a conflict and it results in damage to our client? Likely, the malpractice carrier will want to audit your paper and electronic systems to find out what went wrong. When they find the electronic system is capable of catching the offending conflict but did not because it was misused through simple ignorance, then hopefully all that happens is a request to repay the discount obtained and to fix the system. Even worse, they may decide to deny the claim.
What about the grievance aspect? Fortunately, most conflicts never find their way into the grievance process. They are discovered, the firm loses both clients and no harm is done. If harm is done and one or both of the clients pursues the matter with the State Bar then it will be difficult to defend a lack of competence on such a key system. Every firm should have a detailed understanding of how its electronic conflict system functions.
CONCLUSION
These are just a few of the ways in which improper use and understanding of our electronic systems can create potential ethical and malpractice traps for your firm. Make sure someone who understands the legal profession’s ethical requirements also understands the electronic systems in your firm and takes the necessary steps to avoid user operation which could result in their violation.