December 1, 2021

How Law Firms Can Avoid Ethic Violations When Using Legal Tech

 

We’ve said it before: Legal Tech disruption is “an inevitability.” Law firm and legal department adoption of legal technology, however, still remains slow. The resistance in part is due to ethics and the fear of violating the rules or codes of professional conduct. This fear is real––ethics has not yet quite caught up to the advances made by legal technology. While we wait for the latter, it’s time to move ahead with the former. To do that, we offer a few insights into the ethical obligations of legal professionals at the intersection of advancements in legal technology.

Competent Representation & What It Means (or May Mean) in Light of Legal Tech

Regardless of where you practice the law––whether in the United States, England, India, or elsewhere––one of the guiding rules of professional conduct is competent representation. Competent representation means lawyers, advocates, solicitors, and the like, must act in the client’s best interest. In other words, you must maintain a level of knowledge and skill so that you can competently represent and advocate for your client. 

But you already know all of the above. What you may not realize is this: there’s a relatively new trend where, more and more, competent representation is embracing the idea that its meaning and purpose should also include technology competence. 

If this trend continues, legal professionals will have to start keeping abreast of the latest in legal technology, if you aren’t already doing it. In the United States, for example, the American Bar Association’s (ABA) Model Rules of Professional Conduct Rule 1.1, in its Comment, now provides that, 

[t]o 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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Most U.S. states have adopted this or similar language. This year, in fact, California became the 39th state to do so. We can anticipate that this trend will continue to grow.

How does technology enable competent representation?

Legal technology has its risks and benefits, and we are focusing on the benefits here. It can, inter alia, streamline workflow, make collaboration and communication easier, create more productive workspaces, and improve document management, scheduling, and budgeting processes. These benefits align with the duty to provide competent representation because it:

  1. allows you to optimize your legal knowledge and skills; and
  2. spend more focused time on client matters so that you can
  3. prepare client matters with the thoroughness required by your jurisdiction’s rules of professional conduct. 

Of course, much of the benefits depend on the legal tech you use and how you use it. The point is: be proactive and adopt legal tech. It can help you provide legal services in the best interest of your client. Also, be forward-thinking and future-proof your law firm or legal department. You’ll want to do so now because one day this trend may transform into an ethical obligation where legal professionals aren’t only required to stay current but are obliged to adopt legal tech.

Client Confidential Information’s Safety in the Hands of Legal Tech

Again, no matter where you practice law, you are typically required to keep documents and information related to the representation of a client confidential, unless an exception applies. Keeping it confidential means keeping it safe and secure. 

For example, Rule 6(2) of Singapore’s Legal Profession (Professional Conduct) Rules states that (with certain exceptions)

… a legal practitioner must not knowingly disclose any information which––

  • is confidential to his or her client; and
  • is acquired by the legal practitioner (whether from the client or from any other person) in the course of the legal practitioner’s engagement.

The obligation to keep confidential client information secure is the source of much fear for many in the legal industry when it comes to legal tech. We hear about hacks and cyberattacks on a regular basis. Take what happened to Campbell Conroy & O’Neil, P.C. this year. It’s an international law firm whose clients include some of the world’s biggest companies (e.g., Ford, Toyota, British Airways, Pfizer, Boeing, Marriott, and Exxon), and it was the target of ransomware. Personal, medical, financial, and other client data were exposed. 

The thought of using legal tech and letting that information float out there, somewhere, in the nether world has the potential to cause migraines for many managing partners. The easier solution seems to be maintaining the status quo, i.e., steering clear of the cloud and all things legal tech. But that line of thinking is misguided.  

How does technology keep confidential client information secure?

To be clear, not all legal tech is created equally. Some are better than others and that includes the handling and securing of confidential information. Most legal tech, however, use the most advanced technology to keep information secure, including encryption and other techniques. 

Some platforms, like Lupl––an open industry platform that lets you bring your own system––offer built-in security that helps ensure you, your law firm, or your legal department is in compliance.

But legal tech is just one part of the security issue. You need to have policies in place (for lawyers and non-lawyers) that incorporate and/or complement the legal tech you use. 

Non-lawyer Staff Who Also Use Legal Tech 

Lawyers aren’t the only ones who use legal tech in any given law firm or legal department. They are, nonetheless, responsible for non-lawyers’ use of it, particularly non-lawyers hired or associated with the respective lawyer. Again, as true with the above two ethical obligations, codes of conduct for almost any jurisdiction cover this issue. 

For example, in the United Kingdom, Rules 3.5 and 3.6 of the Code of Conduct for Solicitors, RELs and RFLs states that

3.5 Where you supervise or manage others providing legal services:

  • you remain accountable for the work carried out through them; and
  • you effectively supervise work being done for clients.

3.6 You ensure that the individuals you manage are competent to carry out their role, and keep their professional knowledge and skills, as well as understanding of their legal, ethical and regulatory obligations, up to date.

This obligation can––as it does in the ABA’s Model Rules of Professional Conduct, Comment to Rule 4-5.3––extend to third parties, e.g., document management companies and investigative agencies. More so than not, however, it applies to administrative assistants, legal assistants, paralegals, and law student interns. It’s another source of worry when using or adopting new technology. 

Non-lawyers mostly design legal tech, and that fact compounds these concerns. These non-lawyers don’t necessarily know what to anticipate and, therefore, how to put into place mechanisms to prevent ethics violations. Finding legal tech informed by, designed by, and created only for legal professionals may be a smart option for your law firm or legal department because of the inherent appreciation of ethical obligations.

How does technology help you monitor non-lawyers and their interaction with legal matters?

There are legal platforms available where law firms, legal departments, and lawyers can create workspaces where they control who has access to what. Some of these legal platforms, like Lupl, allow you to track who is doing what and to view it in real-time. A platform like Lupl grants greater control over client matters, including non-lawyer access in and to those matters. 

A Sigh of Relief: Legal Tech that Truly Puts Everything Together

Yes, we can hear your sigh of relief. Believe us, we’ve heard these fears time and time again by the very same lawyers who informed our design processes and who allowed us to capture the needs of law firms and legal departments into one technologically advanced collaboration platform for legal. In other words, with Lupl, it’s more about how our legal technology helps you avoid ethics violations rather than how you can avoid ethics violations while using (other) legal tech.

legal tech and ethics violations

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