What All Lawyers Should Know: The Intersection of Technology and Legal Ethics

Rapidly evolving technology impacts how we interact on a day-to-day basis, both personally and professionally. In the professional realm, few groups are impacted more than lawyers, as the intersection of technology and legal ethics presents some particularly profound questions for how attorneys and other legal professionals must interact with clients, vendors, courts, jurors, and each other when it comes to handling documents and utilizing various hardware and software. The ethical implications of these questions have left federal, state, municipal and other rule making authorities racing to keep up.

Technological Competence

Among the most pressing questions for lawyers are whether they have a duty technological competence and, if so, how far the related obligations extend. Generally, legal professionals are now required to maintain a working understanding of technology in order to protect a client’s confidential information. In New York, for example, the Department of Financial Services requires that attorneys abide by a list of best practices for upholding client confidentiality in the use of technology. These include developing policies and procedures for handling electronically stored information, limiting user access, providing a certificate of compliance, and more.

This commitment to protecting client confidentiality extends to cloud storage and document preservation. Although many online systems make the storing and care of confidential documents simpler, their susceptibility to breaches via online hacking and theft creates new challenges in the fulfillment of ethical and professional responsibilities. In-house lawyers, for example, may be required to implement and maintain extensive cybersecurity programs and other safety measures within their organizations to protect client confidences sufficiently.

Social Media and Attorney Advertising

As private lives become increasingly public, social media also blurs the line between the personal and the professional. Not only should lawyers be aware of the potential impact of their social media activity on client matters, but they must be careful to avoid other ethical pitfalls in this realm.

LinkedIn presents an example of the latter. The New York Rules of Professional Conduct define attorney advertising as communication with the “primary purpose” of retaining the attorney or firm. Legal ethics experts have analyzed how “primary purpose” ought to be ascertained in light of the now common practice, among lawyers, of presenting of biographical information on LinkedIn. While not all communications via LinkedIn or other social media may be considered attorney advertising, the issues at play are varied and complex, so it is incumbent upon lawyers to remain vigilant of the rules and prevailing interpretations in their jurisdictions.

Advice from an Industry Leader Can Help

James Q. Walker is the Chair of the New York County Lawyers’ Association Committee on Professional Ethics and has been a member of the New York State Bar Association Committee on Professional Ethics since 2006. A Partner at Richards Kibbe & Orbe LLP, Mr. Walker concentrates his practice in regulatory proceedings, internal investigations and representing law firms and lawyers in professional liability matters, and recently published an article, Social Media and the New York Rules of Professional Conduct: Is LinkedIn Attorney Advertising?, which addresses some of the complexities of attorney advertising in the age of technology.

Mr. Walker will shed further light on these issues (and others) in a complimentary, live, interactive, CLE (NY) webinar this Wednesday, May 24 at 12 noon (EDT). Presented in partnership with AltaClaro, the webinar is titled “Legal Ethics in the Technology Age: Exploring a Lawyer’s Duty of Technological Competence.”

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