Volume 20, Number 4
June 2003
NOT USING NEW TECHNOLOGY: ETHICAL AND LIABILITY RISKS?
A LAWYER'S JUDGMENT WILL NEVER BE AUTOMATED
By Mark Tuft
Mark Tuft is a trial lawyer with the law firm of Cooper, White & Cooper, LLP, in San Francisco, California. His trial practice involves civil and criminal litigation in state and federal courts, and he also represents individual attorneys, law firms, and corporate law departments on professional responsibility and liability matters. He is a member of the ABA Center for Professional Responsibility and the Association of Professional Responsibility Lawyers.
For many in the legal profession, certain advanced levels
oftechnology are indistinguishable from magic. Many people decide
to attend law school because they do not do particularly well in
math and science, and bar exams do not test for proficiency in
using the web, BlackBerries, satellite backup systems, or other
technology skills. Yet technology has become a conventional tool
in law practice and effective client service. Recent
technological advances, having clearly revolutionized
availability of information and delivery of legal services,
provide sophisticated resources for delivering fast and efficient
legal services to clients.
The ethical issues associated with integrating technology in the
practice of law have been and continue to be debated. But what
about the ethical position of not using technology? Have we
reached the point where technology is so essential to the legal
system that it is no longer ethically permissible for lawyers not
to use computers and the Internet in their practice? The answer
is, and must be, no.
Ethics Considerations
The right to practice law requires that lawyers be competent,
prompt, and diligent in all professional functions.1 The
emergence of the Internet and multiple information-age
technologies as modern staples of communication does not equate
to professional competence or diligence as defined by rules of
professional conduct. In order to practice law competently, a
lawyer must employ the requisite knowledge and skill in a
particular matter and apply the degree of thoroughness and
preparation reasonably necessary for the representation.2
Competence as an ethical matter is based on the lawyer's legal
ability, not technical ability, and implies keeping abreast of
new developments in law. Employing electronic research may be
efficient, but if a lawyer is able to find the law and apply it
correctly, the lawyer is acting competently regardless of how the
information was obtained.
In addition to being competent, a lawyer must act with reasonable
diligence and promptness in representing a client.3 Technology
certainly can aid lawyers in the prompt and efficient provision
of legal services and can enable competitive advantages and
significant cost savings. However, diligence is not necessarily
equated with speed. The duty of diligence is intended to advance
the strong public interest that lawyers are reliable and will not
neglect a client or a legal matter entrusted to them. So long as
lawyers use the requisite degree of commitment and dedication to
the client's matter, how they meet their professional
responsibilities and what tools they use to accomplish the
client's objectives are for the individual lawyer to decide. When
lack of diligence becomes a discipline issue, it is usually
because a lawyer procrastinated and not because she used a book
instead of digital technology to find the answer. A lawyer who
has an aversion to flying can take a bus, as long as she shows up
at court on time. It may take longer, but the lawyer is,
nevertheless, acting with diligence under the ethics rules.
Lawyers are ethically obligated to communicate with their
clients. This means keeping clients reasonably informed about the
status of their matters, consulting with clients about the means
by which the clients' objectives are to be accomplished, and
promptly complying with reasonable requests for information.4
Modern technologies afford efficient means of communication,
including e-mail, extranets, and other wireless and web-based
systems. Which to use, however, is for lawyers and their clients
to work out. Clients often have preferences, and not all clients
have access to, or can afford, the latest communication
technologies. Electronic communication may not serve as well as
an in-person client consultation, but so long as adequate
communication takes place, the lawyer's ethical duty is met,
regardless of the means used to deliver the information.
Developing technology will continue to influence what lawyers do
and how they do it. Providing efficient and automated legal
services through technology has many benefits. In certain
specialties, the use of particular software and electronic
communication capabilities may be important aspects of the
practice. Lawyers need to remain competitive, and they have a
professional responsibility to improve ways to provide affordable
legal services and information to the public. Modern technologies
provide important tools for public access to our legal system and
increase the availability of legal services. It is the result of
using tools, however, rather than the choice of which tool to use
that is the measure of a lawyer's competence.
Potential Drawbacks
If we accept the proposition that lawyers cannot ethically
practice without using electronic communications to some extent,
however, the question arises how much technology is enough to
ensure competence? Not everyone may be able to keep up with the
latest gadgets and gizmos. It is not unusual for a firm to invest
significant capital in the latest portals and litigation support
systems only to find that the technologies are out-dated by the
time the efficiencies are mastered. More efficient technologies
always will enter the market. But to equate professional
competence and diligence with their use would require lawyers to
stay on top of constant breakthroughs in that field, rather than
permit them to find a comfortable level of efficiency that helps
fulfill their professional responsibilities.
With all the benefits offered by computer technology and the
Internet, corresponding risks must be considered. Computers and
other technologies automate tasks that traditionally have been
performed manually by lawyers and office staff: conflict
management, time management, calendaring, document and file
management, and word processing. An automated and sophisticated
computerized conflict system, for example, can improve efficiency
and reduce errors. But any system is only as good as the
information it receives and the reports it generates.
Professional competence requires knowing what to do with the
information once it is found-the exercise of professional
judgment by a legally trained mind.
Lawyers who employ sophisticated technologies in their practice
are ethically responsible for understanding how they work and
knowing their limitations. An attorney cannot delegate ethical
responsibilities, and these cannot be waived by clients. The more
dependent a lawyer becomes on the use of sophisticated technology
to better serve clients (and remain competitive), the more
technically proficient the lawyer must become in order to
practice competently under the rules. This can create a Catch-22
situation. Each application of new technology can result in new
sources of ethical problems. Web-based systems, such as
alternative service providers (ASPs), offer convenient online
support services, such as data storage, document retrieval, and
accounting. Lawyers can outsource many services or hire technical
support to operate electronic systems, but they retain a duty to
supervise staff, outside vendors, and independent contractors in
the performance of their professional responsibilities.5 Lawyers
who have supervisory authority over the work of non-lawyers and
lawyers with managerial authority within the firm are required to
establish internal policies and procedures designed to provide
reasonable assurance that non-lawyers in the firm will act in a
manner compatible with the rules of professional conduct.6
Attorney conduct under the ethics rules is not measured by the
same standards as civil actions based on claims of attorney
malpractice or professional negligence. Certain practice areas
may require the use of specific software or electronic discovery
tools and e-filing in order to practice consistent with the
accepted standard of care in that field. It is also true that
some insurance carriers offer premium discounts to lawyers and
law firms that use certain office automation as a means of
reducing malpractice claims; some even require this.
Failure to use computerized legal research or the Internet
conceivably could be the basis for a legal malpractice claim.
Online computer-assisted legal research systems, for example,
have been available since the 1970s. Failure to use a computer or
other technology in the practice of law, however, has not become
a generally accepted standard of care in malpractice cases.
Issues of time sensitivity, cost, and other factors are
considered in deciding whether the lawyer acted reasonably under
the circumstances. Generally, lawyers are liable for legal
malpractice for failure to perform adequate research rather than
failing to use technology to do so. In the 1975 landmark case
Smith v. Lewis,7 Jerome Lewis was found civilly liable for
failure to use his research skills in finding the relevant law
and determining how it applied to his client. The failure in
Smith v. Lewis was one of legal analysis, not lack of technology.
If Lewis had been able to conduct online legal research and still
missed the relevant statute, the availability of technology would
not have changed the decision.
More than 60 years ago, Learned Hand found a tugboat captain
liable for failing to use radio-receiving technology to obtain a
warning of a storm that sank a barge.8 In 1932 a tugboat captain
at sea could obtain broadcast weather reports only from
radio-receiving technology. The choice was between obtaining
adequate weather reports and being ignorant of the weather.
Today's tugboat captain has many choices. He can use a laptop to
visit an online weather site, use a cell phone to call the
National Weather Service, turn on the weather channel, or read
the newspaper. As soon as he checks the weather report, Learned
Hand would likely say, he has met the standard of care.
So it is with lawyers who today must decide among available
alternatives to ascertain the law. Whether a lawyer should resort
to Westlaw or Lexis to find the latest case or utilize other
electronic media resources or go to a law library depends on the
circumstances. The fact that technology provides greater
efficiencies and may afford lawyers a competitive advantage does
not mean that it is unethical not to use technology. In the end
it is the quality of the legal work and not the speed at which it
is done that matters. Given today's technologies and the
inventions that will serve lawyers in the future, the practice of
law still requires the exercise of judgment by the legally
trained mind. Although access to law may become automated, the
practice of law will not.
Notes
1. Model Rules of Prof'l Conduct, Pmbl.; Cmt [4] (2002).
2. Id., Rule 1.1.
3. Id., Rule 1.3 (2002).
4. Id., Rule 1.4(a) (2002).
5. Id., Rule 5.3 (2002).
6. Id., Rule 5.3; Cmt. [2] (2002).
7. 13 Cal. 3d 349 (1975).
8. T. J. Hooper v. N. Barge Corp., 60 F. 2d 737 (1932).
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