An Ethical Practice in Today’s Electronic World
A funny thing happened on the way to my law office. Everything changed. When I first began practicing law, there were some attorneys to whom I wrote detailed, long-hand, cursive letters. Granted, these attorneys were not from my generation, but I enjoyed the careful consideration and use of descriptive adjectives in that process. Fast forward to 2014. We are working in an extraordinary time of innovation and lightning-fast communication. At the same time, as attorneys, we are hired for our careful, and hopefully, meticulous, thought processes. As an intellectual property attorney, I’m torn. I am the “geek.” To my husband’s chagrin, I am the girl who’d rather compare car engines than jewelry. I’d rather have a new computer than clothes. Technology is remarkable. Our files are at our fingertips. We can conduct business in powerful ways, meeting with our clients throughout the world using video conferencing. Compare today to a short 50 years ago, when the first commercial version of the fax machine came into use.
I remember when the government office I worked in received its first fax machine in the late ’70s—where we placed the telephone headset into a contraption and prayed for a connection. The ensuing fax on rolled-up, flimsy paper was unreadable a few months later. In the early ’80s, clients had to consider the cost of long-distance telephone bills in sending facsimile transmissions overseas. Then, in the late ’80s, commercial Internet service providers started to pop up. I remember having a Web page when few others knew what the Internet was. Proof positive. I’m a geek.
Our technological advances have given us amazing tools, but do we always use them wisely? Have our ethical obligations changed with our technological advances?
The practice of law moves at a fast clip. Clients expect immediate turnaround on projects. Everyone is used to the broad availability of information and instant communication. We type briefs, we email our clients, our calendars are electronic and our research is online. The U.S. Postal Service, and even overnight delivery, is derisively given the moniker “snail mail.” But all this technology, as helpful in eliminating paper and speeding up our communication with others, is a tool; it is not the practice. Our practice is one of ideas, carefully considered principles, people and our communities. Our obligation to our practice, our clients and our community has not changed, regardless of technology.
I cannot count the number of times I have received an email from an attorney that was not meant for me. I can, however, count how many times I have received snail mail not meant for my office. Twice. In 26 years. Our computer has replaced the Rolodex card file. I have 12 contacts in my computer system with the first name “Steve.” Email auto-fills information as we type. Our minds are multitasking the other 10 matters that need to be completed after the email is sent. How often do we fail to print a draft, review it and then send the email? Of course our ethics rules are catching up to our technology, but the general obligation has not changed.
Attorneys must make “reasonable efforts to prevent access or disclosure” of client confidences.
“The attorney must exercise reasonable care to guard against the risk that the medium of the communication may somehow compromise the confidential nature of the information being communicated.” We need to take a step back, re-review our work, and confirm the correctness of each and every portion of our communications. We can put our minds at ease that our email has not gone astray by using the ‘return receipt’ function available in so many email programs.
Even with this careful review, email may inadvertently be sent to the wrong person. If an attorney believes a confidential communication is not secure or has been sent in error, the sending attorney must inform the intended recipient of the error and should contact the actual recipient to request destruction of the email.
The ABA has gone further and requires lawyers to prevent “unauthorized access by third parties.” Prevention is a difficult standard. It is absolute. As an example, most law offices have servers that store client information. If computer-savvy individuals can steal millions of dollars in bitcoins or take over government computer systems, how can we keep our clients’ confidential information under lock and key? How can we absolutely ‘prevent’ unauthorized access? Fortunately, Colorado has not adopted this standard.
To alleviate some of these concerns, we can purchase encryption software. This software can be used on laptops, small USB drives and other equipment. Without it, a dishonest soul could take a hard-drive, attach it to a different computer and access stored files without a craftily considered password barring that access.
In addition to computers, mobile devices are a necessity. What was once used only in our cars for emergencies is now our equivalent to a pacifier. We have removed the separation between our private time and public time. Our clients call ‘after hours’ because they know how to reach us. Our mobile devices contain our texts, emails, Facebook accounts, Twitter accounts and more. I am guilty of waking up and immediately checking my email on my iPad by my bed. I trick myself into thinking I’m saving office time by responding to emails before I get into the office. Studies have shown that our dopamine levels (controlling pleasure systems of the brain) increase as we search emails, tweets, texts and the Internet. That dopamine level increases even more when the information we view is small so that it doesn’t satisfy us. These bits of information make us feel wanted. In some cases we are even addicted to our devices and information. But is it healthy? Does it reduce our ability to concentrate? Does it diminish our ability to problem solve?
Whether the proliferation of electronic communications reduces our ability to be good lawyers is a topic much bigger than can be resolved in this short article. Nonetheless, no matter what type or quantity of technology we choose to use, we need to maintain the confidentiality of our clients’ information. Fortunately, we can—and should—password protect our digital phones, computers and mobile devices to access information. Also, we should make use of any available function to locate a lost phone or device and erase all data on it.
These issues are the same with Internet access, server access and shared networks. We need to stay abreast of existing technologies to protect access to our information. This includes passwords, limiting permissions (access), virus protection, encryption technologies and firewalls. Even if we are unaware of how to complete these tasks, we are obligated to hire someone to help institute these protections. These are all reasonable steps necessary to protect our clients’ information in this fast-paced, technological time.
After many years as a solo practitioner, while I raised my brood, I recently “opted back in” to the practice of law in a firm with intelligent and creative intellectual property attorneys. I have always considered myself pretty good with technology, fixing odd problems for all the members of my family, replacing parts in my computers and whatnot. But that was technology that I had researched, installed and with which I had tinkered. I now find that I spend an inordinate amount of time trying to figure out why programs freeze or information mysteriously duplicates. I’m not as savvy as I once imagined. Times have changed and are changing at an incredibly fast clip. No sooner do we get used to one technology than another is introduced.
Maybe it’s my age (and the Millennial Generation may disagree) but we need to call a time-out to all the technology we are so drawn to if it impinges on our intellect. Try it. Take an afternoon off, away from the computer. Reduce the dopamine in your brain. Take out a yellow pad and pen. It is empowering —even if technology is still ridiculously, fabulously addictive. It is simpler. In the meantime, we need to remember that, as attorneys, we are responsible for protecting our clients’ confidential information, whether that means not discussing client business in public places or something more complicated such as maintaining appropriate technology to ensure metadata is not transmitted with our email missives. Technology is the tool, not the practice.
By Judith Rosenblum. She has practiced law in the intellectual property arena for more than 26 years. As Senior Counsel with HolzerIPLaw, PC, her practice emphasizes the development and protection of each client’s unique intellectual property portfolio. She may be reached at 720-684-5375 or jrosenblum@holzeriplaw.com.
(1) In 1964 Xerox Corporation introduced LDX, considered the first commercial version of today’s fax machine (Fax Authority, 2011–13), faxauthority.com/fax-‐history/.
(2) ABA Model Rule 1.6, comment 18. See also, Colo. RPC 1.6.
(3) Colo. RPC 1.6, CBA Formal Ethics Op. 90 (1992). Encrypted email is not required (ABA Formal Op. 99-413 (1999)) for attorneys to maintain the confidentiality of communications because the existence of the Electronic Communications Privacy Act makes unauthorized interception of email illegal. 18 USC Sec. 2510.
(4) Colo. RPC 1.6, CBA Formal Ethics Op. 90 (1992).
(5) ABA Model Rule 1.6, comment 18.
(6) “Brain Wise,” Weinschenk, Psychology Today, (9/11/12).
(7) Supervising attorneys have a duty to make reasonable efforts to ensure the firm has appropriate technology and systems in place to control the transmission of metadata.” RPC 5.1; RPC 5.3, Formal Opinion 119. “Attorneys must exercise reasonable care to guard against the risk of confidential information being communicated to others.” Formal Opinion 90.
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