Ethics for Lawyers: Practicing Law in a Digital World
It appears that the world’s rapid digitalization has given rise to an entirely new class of eLaw ethical issues for legal practitioners. From learning to navigate software and coordinating casework online to avoiding the pitfalls of social media, technology presents a new set of challenges that may be redefining the modern ethics for lawyers.
3 Ethical Guidelines for Attorneys in the Digital Age
Lawyers are required to meet their ethical obligations with respect to technology. The following general guidelines on using electronic solutions may help prevent possible monetary sanctions or disbarment, giving you peace of mind when navigating modern technology in your practice.
1. You Have to Cooperate with Opposing Counsel on e-Discovery
Federal Rule of Civil Procedure 26(f)(3)(C)
requires the parties to a case to agree on a discovery protocol for electronically stored information (ESI) early on in the proceedings. A typical protocol will include provisions such as:
- How both sides can access the other party’s ESI
- The scope of the data collection
- Acceptable file formats
- Data security and safety
- How the data will be handled
To help ensure effective cooperation with opposing counsel, you have to be a competent user of electronic means of communication and e-discovery software. You must also be able to search through your own data. Otherwise, a court may order you to outsource the process to a third-party vendor.
Judges have been taking e-discovery protocols seriously: In 2011, a Florida court sanctioned the defendant’s lack of training or competence in searching for and producing ESI as a breach of their obligation of cooperation and full disclosure. The courts have also made it clear that the duty to preserve and identify evidence extends to both paper and electronic records.
2. You Have a Supervisory Role During e-Discovery
In Qualcomm Inc. v. Broadcom Corp., the court held that attorneys must be technologically competent to adequately supervise both junior lawyers and non-lawyers involved in the e-discovery process. This means that you, as counsel, are personally responsible for the individuals working under your direction, and a poor grasp of modern technology is no excuse for failing to supervise them properly.
However, the court also found that junior attorneys have independent ethical obligations toward the client. These duties take precedence over any senior attorney’s instructions. That means junior lawyers should have good IT skills themselves to ensure effective e-discovery.
3. Exercise Plenty of Caution When Using Social Media
Perhaps you are considering asking a paralegal to look up a defendant’s social media platforms.
Before you do so, you should know that you are entering controversial and potentially dangerous territory. Several state and local bar associations have already published opinion pieces on similar ethical issues arising from social media, so be sure to check your local regulations and any relevant court rulings first.
Here are a few important things to be mindful of:
There Is No Presumption of Privacy on Social Media
The current position of the courts is that social media users do not have a reasonable expectation of privacy with regards to the information they post online, regardless of their privacy settings.
In Romano v. Steelcase Inc., the plaintiff alleged she had sustained permanent injuries when she fell out of her office chair. She also claimed the injuries affected her enjoyment of life. The defendant sought – and was granted – access to her Myspace and Facebook profiles. These revealed that the plaintiff had traveled extensively and led quite an active lifestyle in the period she said her injuries prevented such activity.
The court found that since neither social media platform guaranteed full privacy, the plaintiff could have no legitimate expectation of such. When she originally set up her accounts, she consented to the fact that her information will be shared with others, including people who may not be on her friend lists. In fact, the court continued, the sharing of personal information was the very purpose of social media platforms.
The Romano case created an important precedent for the discoverability of social media websites when a showing of potential relevance exists.
Attorneys Cannot Use False or Deceitful Representations to Obtain Private Information
Even though there is no right to privacy with respect to social media, you still must be careful when trying to access private information on such websites. Lawyers in New York, for instance, may not use deception, such as assuming a fake identity, to obtain information on social media.
Similar guidelines apply elsewhere, so be sure to check with your local bar association. If you want to access information for evidence, use standard discovery methods such as a subpoena or a request for the production of documents.
Watch Your Language
Be careful how you talk about your work on social media. If possible, refrain from doing that altogether. In 2009, an Illinois lawyer was dismissed from her position as an assistant public defender after posting confidential information on her blog and referring to a judge as “Judge Clueless.”
Navigating the Ethics for Lawyers in the Modern Age
Ethical practice guidelines are changing at the speed of technological innovation. Unfortunately, that means many critical aspects of cybersecurity and digital privacy may not be protected by standard malpractice insurance policies.
To help protect yourself and your firm, consider taking out cyber insurance. This may give you some extra peace of mind, whether you are part of an established firm or are starting your own law practice.
Get your free insurance quote today.