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The American Bar Association recently hosted a webinar to discuss the potential pitfalls found at the intersection of technology and ethics.

“Dangerous Curves Ahead: When Legal Ethics and Technology Collide,” addressed a number of challenges lawyers face on a daily basis:

Model rules

Catherine Sanders Reach, the director of the ABA’s Legal Technology Resource Center in Chicago, noted that several model rules can be triggered by tech issues, from Rule 1.6 on the confidentiality of information (is your server secure?) to Rule 5.3, which addresses lawyers’ supervisory duties toward non-lawyers and can cover assistants, IT people and even third parties who might be storing paper documents.

Metadata

Metadata also presents ethical considerations for attorneys, whether you are the sender or the recipient of a document, Reach said. She noted that fourteen ethics opinions have been issued on the subject, and suggested that lawyers check with their state bar for guidance.

E-mail

E-mail is an everyday part of life and business. But sometimes it is better to not use e-mail, suggested Chicago lawyer Ruth Hill Bro, the Immediate Past Chair of the ABA Section of Science and Technology Law.

“In some situations, it may be better to avoid e-mail altogether.”

When e-mail is safe to use, Reach urged lawyers to re-think the standard disclaimers inserted at the bottom of a message.

“A disclaimer does no good at the bottom of the message,” she noted. “Put it at the top or use the subject line.”

Social networking

Social networking can also present perils for the unwary lawyer, Bro said. Reach advised attorneys to re-read their state rules on advertising, solicitation and communication with social networking in mind.

“For example, in Illinois, lawyers are not allowed to list specialties,” Reach said. “But the profiles on LinkedIn want that information.”

It might be possible to enter the information but include a disclaimer, she said, although whether that satisfies the regulations is unclear.

Other areas of concern: some states consider a lawyer’s website to be an advertisement and require prior approval – would a Facebook profile, or a Facebook fan page, constitute a website? If an attorney asks for a recommendation on LinkedIn, would that be considered a solicitation?

The lesson for lawyers and social networking: be careful, Reach urged.

Data security

Lawyers should also be cautious when using wi-fi, Reach noted, and use “passphrases, not passwords” for greater security.

Bro encouraged lawyers to encrypt their data.

“Increasingly, encryption is not just good practice, but a legal requirement,” she said, noting regulations that recently took effect in Massachusetts.

– Correy E. Stephenson

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