The Code of Professional Responsibility, Rule 1.1 Competence provides, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Comments to Rule 1.1 provide, in part, "Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners."
An attorney's failure to embrace today's technology is a violation of Rule 1.1 Competence.
The Court system itself is sending this message to attorneys, evidenced by the fact that most court systems accept only electronically filed pleadings. And it goes without saying, lawyers are expected to utilize the Internet to obtain information about witnesses, opposing parties and even clients.
In addition to enabling an attorney to provide competent counsel, keeping up with technology is just good business. Social networks like LinkedIn, as well as blogs and other interactive "Web 2.0″ platforms allow lawyers to keep up with current law, collaborate with colleagues, communicate with clients and reach out to prospective clients and referral sources.
Though we insist attorneys must embrace technology, we strongly suggest it not be done haphazardly. Creating a thoughtful online, or social networking plan is essential. Turning over one's online presence to the firm's 25 year-old intern, is a recipe for disaster. Though it is essential to keep up with changing technology, one must do so while continuing to comply with the Code of Professional Responsibility. This new technology provides many ways for attorneys to unknowingly breach confidentially, mislead clients, fall short of the standard of care, violate ethics rules, state and federal privacy laws and data security laws. Careful planning must include an acknowledgement of the risks and a plan to avoid them. Let's look at a few examples of the risks.
The Use of Social Networks
Some attorneys have begun to participate in social networks like Facebook, LinkedIn, Legal Onramp and Twitter. There is no doubt these networks can be beneficial to ones practice on a number of different levels. Using these networks can enable one to have up-to-the-minute information on a new legal precedent, as well as enabling attorneys to obtain referral sources and potential clients. But, if the use of these networks is not done in a thoughtful manner, according to a plan, attorneys risk breaching confidentiality through even the most seemingly innocuous status updates and Tweets.
The attorney who cancels Date Night with her husband by Tweeting, "Can't make dinner, must meet with the CEO of XYZ Corp. Don't wait up. Love you!" may inadvertently have caused XYZ stock to go up or down while violating confidentiality rules as well as state or federal insider trading laws. Keep in mind, the problem here is not so much the fact that she communicated this information to her spouse. The problem is, she has no control over the tweet, or Facebook status update once it hits the Internet. Comments to the tweet, or status update multiply the number of people who see the text many times and serve to increase the risk of a rules violation. This would also be true for the attorney who "Friends" her client and communicates with him over the Internet. The risk of an inadvertant waiver of privilege, or the unanticipated breach of confidentiality is high.
The Philadelphia Bar Association Professional Guidance Committee promulgated Opinion 2009-02 in March 2009. Here an attorney deposed an 18 year-old non-party witness who, during the course of her testimony, revealed she had a Facebook account. The Committee opined that an attorney who ehgages a third-party to "Friend" a non-party witness with the hope of discovering damaging evidence on her Facebook page violates ethical Rule 8.4 by knowingly assisting or inducing another to engage in conduct involving dishonesty, fraud deceit or misrepresentation.
Additional examples like these exist. As attorneys embrace today's technology they must not forget their responsibility to comply with confidentiality and privacy rules. Attorneys must be mindful of the risks involved in utilizing today's technology. Part 2 of this series will offer some suggestion for managing these risks while taking advantage of the new technology and all its benefits.
Our Own Disclaimer
The information we share in Part 1 and Part 2 of this series is for informational purposes only. We are not, under any circumstances, providing legal advice of any kind. Examples used in these blog posts were used for illustrative purposes only and are not intended to establish any standards of care or serve as legal advice. Accordingly, these posts should not be viewed as a substitue for the guidance and recommendations of a professional you engage to give such advice.