ETHICAL CHALLENGES OFTECHNOLOGY USE

BY ATTORNEYS

Professor Jonathan I. Ezor ‘89Brandeis University Alumni Association

New York City ChapterCLE Presentation

May 19, 2009

jezor@tourolaw.edu

Computers and Technology Embedded in Legal Practice

• Document creation and management• Communication with clients, courts, government• Back office management• Legal and business research• Advertising and marketing• Courtroom presentation and practice

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All Professionals Face Issues Depending On Technology

• Reliability of hardware/software can affect business

• Employee abuse of Internet leads to lost productivity

• Costs of acquisition, support can be extensive• Vulnerability to viruses, spyware

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Legal Practice Raises Additional Concerns

• Confidentiality• Unauthorized practice• Verifiability of sources• Uneven “playing field” in courtroom• Electronic discovery• Others

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Confidentiality:Absolute Obligation, Serious

Questions• Attorneys must keep client information

confidential• Obligation extends to non-attorneys within

practice• Failure to protect can lead to malpractice claims,

loss of license

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Networking And Connectivity Open Many “Holes” in Firm Walls

• Internet connectivity links firm’s files to whole world

• Internet’s architecture puts many parties between sender and recipient

• Possibility of serious accidental disclosures– Misaddressed e-mails– Wrong files attached

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Mobile Devices & Telecommuting:Additional Confidentiality Risks

• Attorneys carry entire client files, critical documents on laptops, PDAs, hiptops– Easily lost or stolen– Often not protected with passwords

• Many work from home over unsecured wireless networks

• Public computers (hotels, business centers) can store info. in memory

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Protecting Confidentiality Requires Training and

Procedures• All service providers, IT consultants should sign

written NDA• Staff must be trained on proper e-mail use,

avoiding typical errors• E-mail should be encrypted when feasible• For sensitive material/practices, consider

disconnecting e-mail from system

Scott v. Beth Israel Medical Center, Inc., 17 Misc.3d 934, 847 NYS2d 436

(Sup. Ct., NY Co. 2007)

3 Other Recent Cases About E-mail Confidentiality

• Orbit One Communications, Inc. v. Numerex Corp., 2008 WL 4778133 (SDNY 2008)

• Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp2d 548 (SDNY 2008)

• Steingart v. Loving Care, No. BER-L-858-08 (N.J. Super. Ct. Law Div. Feb. 5, 2009)

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Steingart v. Loving Care

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“Consequently, when plaintiff decided to use company time, equipment and resources to communicate with her attorney regarding the terms of her resignation from Loving Care, she proceeded with knowledge that such computer use and communications would not be private or personal to her. Plaintiff took a risk of disclosure of her communications and a risk of waiving the privacy she expected by way of the method she chose to communicate with her attorney.”

E-mail, Blogs,Social Networking May

Reveal More Than Desired• Many firms and attorneys now publish “Blawgs”

• Lawyers and law students using Facebook, Twitter and other tools

• Personal and professional line may blur

• Texting and e-mails lack nuance, formality

• Current and future employers, clients may read

• Consequences can be embarrassing or worse

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http://shankman.com/be-careful-what-you-post/

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Unauthorized Practice: Where In The World is The Client?

• Many Web sites offer legal information, form documents which could be “practicing law”

• Almost impossible to limit where site will be viewed

• Disclaimers, careful review of text essential• Issue faced by in-house counsel as well

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Verifiability of Sources:Can the Internet Be Trusted?

• Web offers attractive alternative to traditional and electronic research– Zero- or low cost– Easy cut-and-paste– Clients balk at paying Lexis/Westlaw fees

• Younger professionals turn naturally to Internet• Some information available only/first on ‘Net

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Double Trouble of Internet: Reliability and Currency

• Difficult to determine whether Web sites are accurate, complete– Legitimate-looking sites can be fraudulent (“phishing”)– Few sites offer guarantees of accuracy– Can be problem to determine who owns/runs site

• Even official sites may not be current• Need to check “pocket part,” whether literal or

figurative, before relying on material• Online forms tempting for both lawyers and clients

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Litigation Technology: High Stakes, Frequent Mistakes

• Courtroom technology increasing– Presentation graphics– Multimedia exhibits

• Well-funded litigants with high-tech “toys” may dazzle jury

• Unfamiliarity with technology can impede rather than help case

• Best approach: Careful choice of technology, extensive rehearsal

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Electronic Discovery: Giving and Receiving

• Many cases now hinge on digitally-stored materials– E-mail– Memoranda– Web sites

• Unfamiliar attorneys may request too little, produce wrong/too much material

• Spoliation issues for both clients and attorneys• Critical to enlist computer forensics consultants

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Malicious Hacking:

• Long Island law firm brought Web server in-house

• Consultant failed to close security holes• Firm ended up hosting Eastern European porn

server

“The Case of the Law Firm Porn Server”

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With Digital Records, Backups Required by Ethics and Best

Practices• Firms keep documents, client records electronically• Natural, man-made disasters can make them inaccessible

– 9/11 and other terrorist attacks

– Hurricanes

– Blackouts

• Failure to make backups could be grounds for sanctions• Not just onsite but offsite backups critical

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Departing Employees: Huge Storage Comes in Small

Packages• Departing employees can be security concern• New storage devices (SD/CF, USB keys, MP3

players, PDAs, burners) permit wholesale removal of information

• Access controls, tracking of files essential in preventing, detecting info. theft

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Knowledge, Policies and Procedures Must Work Together

To Minimize Risks• Adequate funding of IT staff, including training• Make sure attorneys and support staff given

proper education• Set up systems with legal practice concerns in

mind• Keep up with legal trade press, ethics opinions

QUESTIONS?

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jezor@tourolaw.edu

Jonathan I. Ezor ‘89jezor@tourolaw.edu@ProfJonathan on

Twitterhttp://

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