Staying Abreast of the Latest Technology Even If You Don’t Use It
LACBA Update, December 2007

By James Ellis Arden, member, LACBA Professional Responsibility and Ethics Committee; member, Association of Professional Responsibility Lawyers. Arden handles civil litigation, research, and appellate matters. The opinions expressed are his own.

Lawyers toil under myriad duties, including fiduciary duties, duties of due care, duties to account, duties of loyalty, of confidentiality, of honesty, of competence...of ethics. Technology impacts all of them, and the newest technology that has affected lawyers the most is the Internet.

Also myriad are the different ways in which lawyers practice. Some still use real books, some never do. Some draft, print, and dispatch documents, others do things collaboratively and may never see the finished product. Some communicate electronically, any time, any place; for others, it’s telephone only. And plenty of lawyers still don’t use computers at all.

It is clear that lawyers have no ethical obligation to use new technology just because it is available. Nor is such a rule desired (except perhaps by technology purveyors.)

But even without an obligation to use the latest technology, lawyers must at least know about new technologies. Lawyers need to stay abreast of technological advances and consider the risks involved in using new technology.1

Technology is also changing legal procedure. Lawyers now suffer with e-discovery and from concerns that metadata might embarrass us or reveal confidences.2 Exposure to litigation comes for many organizations these days from their own employees’ e-mail or document retention conduct.3 Federal courts are becoming fully electronic in their filing procedures.4

Even the most Luddite5 attorney has clients who use new technology: a car crashes because an assembly-line robot misfunctions, an Internet-based transaction goes wrong. If you take on an intellectual property or technology case, or any federal case involving production of electronic documents, you have to understand enough about the technology to be able to meet your standard of competence.

Lawyers who do not understand the technology they use are particularly vulnerable. Criminals use e-mail to deliver spam, viruses, worms, and other malware that could invade your hard drive and all the secrets therein,6 or take over your computer to use it to attack others.

Your printer could even be targeted! Network printers have been infected with the Blaster and Sasser worms. Printers are loaded with more complex applications than ever, run all kinds of vulnerable services, and many have direct Internet connections. A network printer should be as secure as any server or workstation.

Ever answer the phone, but no one is there? Some computers dial phone numbers solely to catalog which ones are answered by live people, answering machines, or fax machines. Someone “phishing” for confidential information could e-mail you, pretending to be from a bank or government agency. Instead of phishing by e-mail, some scammers phone, using VOIP (voice over Internet protocol). Internet phone technology makes it easy to fake the caller’s number, and people may be more apt to believe a stranger who talks on the phone than one who e-mails.

Relative to the possibility for compromising private, confidential information, the most “dangerous” new technologies include 1) instant messaging, which involves all kinds of security challenges; 2) Web mail (people wrongly think of it as being as safe as regular mail but faster); 3) portable storage devices, sometimes called “thumb drives” (so easy to hide so much in such a tiny space that some companies have begun supergluing USB ports shut so data cannot be downloaded at all;7 4) PDAs and smart phones (trying to synch takes out some computers; 5) camera phones (YouTube); 6) Skype and other VOIP services (consumer services don’t have the security that is built into business applications); 7) downloadable mini-apps or widgets (providing quick access to Internet-based applications); and 8) virtual worlds, which require a lot of code to be downloaded to the user’s computer.

Here’s something else to think about. The same applications that might be used to help protect privacy, like those that cover tracks left from Internet browsing, or that generate anonymous and untraceable e-mail addresses, or that scrub hard drives and memory caches clean will complicate our own efforts to conduct e-discovery. What you don’t know can hurt you.

1 New York State Bar Association Committee on Professional Ethics Op. 782 (2004).

2 See Joel A. Osman, Technology and the Challenge of Maintaining Client Confidences, County Bar Update, (L.A. County B. Ass’n, Los Angeles, Cal.), Oct. 2005.

3 New Survey on Email Management Reveals Employee Habits Increase Potential Litigation Exposure for Many Organizations at http://technology.findlaw.com/articles/01207/010999.html.

4 Dockets and filings are available over the Internet. E-filing of criminal cases in the Central District of California is required; civil cases must be e-filed effective 2008.

5 Luddites were followers of a man named Ned Ludd, who attempted to sabotage the introduction of new technology in England from 1811 to 1816.

6 Lawyers owe fiduciary obligations to maintain and preserve client confidences (see People ex rel Department of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal. 4th 1135; Evid. Code §950 et seq., attorney-client privilege, and Bus. & Prof. Code §6068(e), duty of attorney “to maintain inviolate the confidence, and at every peril to himself or herself, to preserve the secrets, of his or her client”), most of which today are stored electronically. Clients, accordingly, are entitled to request along with the rest of their files the electronic versions of documents and transcripts. (See State Bar of California, Standing Committee on Professional Responsibility & Conduct, Formal Op. 2007-174.)

7 See John Swartz, Small Drives Cause Big Problems, USA TODAY (Aug. 16, 2006), at http://www.usatoday.com/tech/news/computersecurity/2006-08-15-thumbdrives-stolen_x.htm, listing the theft of a professor’s thumb drive in Kentucky containing confidential information about 6,500 students, the loss of a hospital flash drive in Hawaii containing confidential information about 120,000 patients, and that infamous bazaar outside Bagram Air Base in Afghanistan where flash drives holding sensitive and classified U.S. military information were being sold as swap meet fodder: “It’s like losing a pen.”