As most lawyers know, finding CLE ethics credits can be difficult so I sat in on this year’s ABA Forum on Franchising seminar “Ethical Risks in Cyberspace.” I am glad that I attended. It clarified the full scope of the many important professional ethical obligations I have as a legal practitioner in the technology arena. Here are a few general takeaways from the presentation that apply to both franchise and general practitioners alike:
- First, it is not okay to say you aren’t tech savvy. The 2012 Amendments to the ABA Model Rules of Professional Conduct added a new comment to Rule 1.1 regarding “Competence” stating “a lawyer should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent in the digital age.” What does this mean? The presenters interpret this to mean that it is not good enough to leave the “tech stuff,” like cloud storage issues, digital data rooms and e-production to other people in your office. Every attorney must understand how to practice in the digital age.
- Second, you should do reasonable due diligence on service providers. New comments added to Model 5.3 regarding the use on “nonlawyer” assistance states that when using such services outside a firm, a lawyer must “make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.” The extent of the obligation depends on, among other things, the “education, experience and reputation of a nonlawyer.” The presenters interpreted this to mean that prudent attorneys should do some form of due diligence on technology service providers to confirm they have the appropriate skills to undertake client tasks consistent with the lawyer’s professional obligations which includes the safeguarding of client confidential information.
- You should address some of these issues in engagement letters. For example, if you or your firm uses cloud based computing services or other cyber technologies, then at least inform and explain to potential clients such use in the representation of the client.
- Tackle the things you CAN control. Things like (i) requiring all attorneys use strong passwords on their mobile and computer devices; (ii) making employees aware of the importance of security dangers with public wi-fi and file sharing sites; and (iii) regularly backing up client data, are all manageable steps an attorney can take in this addressing technology issues.