Leadership Exchange - April/May 2013 - (Page 41)
Ed Poll, J.D., M.B.A., CMC
DOES YOUR FIRM’S TECHNOLOGY MEET ETHICAL REQUIREMENTS?
Lawyers and law firms have embraced technology in countless
ways. But firms also have a duty to meet their standard of care responsibilities under the Rules of Professional Conduct when it comes
to the computer. Since management of computer and information
technology is typically viewed as a staff function, it is vital that firm
administrators act as the link between technological and ethical requirements under the Rules. Here are three important examples.
MEET THE STANDARD OF CARE
In 2012 the American Bar Association added a comment on Rule
1.1 (Competency) that “to maintain the requisite knowledge and
skill,” a lawyer “should keep abreast of changes in the law and its
practice, including the benefits and risks associated with relevant
technology …” It has long been held that lawyers who do not use
technology effectively for client files, trial support, case management
and the like are willfully less competent than their peers – a clear
instance of malpractice. Now the Model Rules have clearly identified
technology as an area of competence. Firms with obsolete technology should beware.
This is particularly a concern for smaller firms. Surveys have
found that while the majority of large law firms upgrade their computers and software every two to three years, many small firms and
sole practitioners go as long as six to eight years between upgrades.
They cite cost, time to learn and implement the new technologies,
and lack of certainty that new technology will increase efficiency and
work quality. None of these reasons will protect a firm against a client who claims that outdated technology led to incompetent representation, violating Rule 1.1.
Rule 1.15 states that lawyers have a professional duty to protect
all documents relating to clients by requiring that client property
and files be “appropriately safeguarded” without stipulating a minimum timeframe. Failure to keep files safe is a failure in the duty to
act competently in the best interests of a client. That raises major
concerns with regard to electronic files and records.
Without fail, every firm should back up all computer data and
store important records and documents off-site at a secure and specially designed location. Everything saved on the computer should
be backed-up on a regular basis. This also applies to crucial paper
records such as master files, time and billing records, court dates
and appointments, wills, powers of attorney and corporate records.
The frequency of computer back-ups depends on how much work is
produced between back-ups. As part of this file safeguarding strategy, scan important originals like contracts and wills and keep the
scanned electronic files in multiple locations for security.
Rule 1.6 details each lawyer’s responsibility to preserve client
April / May 2013
confidentiality. But the many lawyers using smart phones and wireless laptops potentially expose client information to anyone who can
access the wireless connection. Several years ago, the State Bar of
California issued opinion no. 2010-179 to address this issue. The
opinion emphasized that wireless connections should have a reasonable level of security, which should include use of precautions such
as file encryption. It is essential to ensure that wireless transmission
of client files and messages has legal protection against third-party
interception or unauthorized access equal to that for phone calls or
stored computer files.
Security is also a concern for firms that use cloud computing,
where software and servers are owned by service providers and reside in a remote “cloud” location. But because the servers are remote, firms have no direct control over data storage or security. This
can be a problem because cloud computing services have already
suffered major service breakdowns that make data unavailable –
particularly if specialized legal software is not backed up on different servers. Although no major cloud computing data breaches have
been publicized, that possibility also exists. The firm that uses cloud
computing does so knowing it may have connection, security or reliability problems. It’s a virtual risk that requires careful evaluation.
The world of the law is more than ever the world of the computer,
one where law firms should take safeguards to comply with ethical
responsibility. The ABA Model Rules noted here are of course advisory, but most states, including California, adopt and incorporate
them into their own rules of professional conduct. Compliance is the
lawyer’s requirement – and that makes it a responsibility for administrators with technology control.
Edward Poll - All rights reserved © 2013
About the Author: Ed Poll, J.D., M.B.A., CMC, principal of LawBiz® Management, is a preeminent coach, law firm management consultant, and author.
He is a thought leader in strategic planning, profitability analysis, and practice
development, coaching and consulting with lawyers. He practiced law on all
sides of the table for 25 years-- as a corporate general counsel, government
prosecutor, sole practitioner, partner, and law firm chief operating officer
--and been a consultant to solo and small firm practitioners for more than 20
years. He released two books in 2012, The Profitable Law Office Handbook:
Attorney’s Guide to Successful Business Planning, 16th Anniversary Edition,
guides the reader through the process of understanding and growing one’s law
practice business, and Secrets of the Business of Law, 2nd ed. provides practice tips to improve the lawyer’s condition and reduce stress. His latest book,
just released, Life After Law: What Will You Do for the Next 6,000 Days? deals
with pre-retirement planning issues. You can reach Ed at (800) 837-5880 or
Table of Contents for the Digital Edition of Leadership Exchange - April/May 2013
Leadership Exchange - April/May 2013
Table of Contents
2013 Event Calendar
ALA Social Media
Community Connection News
The I-9 Gets a Make-Over
ALA Management Encyclopedia
Accept the Challenge to Become a Green Lawyer
CLM Corner / Crossword Puzzle
CLM Study Session
CLM - Steve Wingert
GLA Making News
Volunteer of Year
Annual Chapter Meeting
A Law Firm's Marketing Success Story
GLA ALA Essay Contest
March Luncheon Recap
CLM Crossword Puzzle Answers
Member/BP Mixer Recap
Board of Directors
Region 6 Officers
Board Crossover Meeting
Does Your Law Firm's Technology Meet Ethical Requirements?
ALA Past President's Reception
New Members & Member Updates
Members In Transition
2013 Compensation and Benefits Survey
Business Partner Spotlight
Leadership Exchange - April/May 2013