The Ethics of Using Technology on Your Cases
By now, nearly everybody is familiar with cloud-based computing and it is nearly impossible to avoid any sort of reliance on remote data storage. However, for clarity, "cloud computing" refers to accessing and using applications that are available on the internet. While there are a lot of ways in which you can use technology in your practice, this discussion is going to focus on cloud computing exclusively.
Understand the Nomenclature
"Technology" can mean a great many things. However, what is important for you to understand are the terms that apply to keeping data safe and secure. There are three main areas of concern here: 1) Transport Layer Security, 2) Encryption, and 3) Terms of Service.
Transport Layer Security is what many websites employ by adding an additional layer of security to their website. You can confirm whether a particular site is using this by simply looking at their web address and ensuring that their url contains "https:" instead of just "http:" in front of it. If the site has this, then you know that all data transmitted is safe.
Encryption, on the other hand, is particularly important when data is being transmitted between devices. Most devices have standard protocols (ie. WPA3) in place. However, this can be compromised when on public wifi systems and you should make a point of using only your own secure wifi or opting to use your own cellular relay in lieu of using free public wifi.
Terms of Service refers to the agreements that you are contracting to when using third party software vendors. It is nearly universal these days for vendors to indicate that you are granting them a license to use your data for the "limited" purpose of operating, promoting and improving their service. This is unfortunately the reality of data usage these days and, while not ideal, most professionals are comfortable with this arrangement given the benefit that the software providers are offering with their services.
Professional Duties and Obligations
As Scott McNealy (Co-Founder of Sun Microsystems) once said, "You have zero privacy anyway. Get over it." As lawyers and mediators, we need to take additional precautions. In particular, we have to be mindful of our following duties:
Duty of Confidentiality- "To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." B&P Code 6098(e)(1)
Duty of Competence- Taking appropriate steps to ensure both that secrets and privileged information of a client remain confidential and that the attorney's handling of such information does not result in a waiver of any such privileges & protections. COPRAC 2010-179
What does this mean for a practitioner in the modern age? While we encourage you to refer to the more exhaustive treatment of these issues on CalBar's website, we'll now offer you a few hi-level things to keep in mind as you go about your practice.
What You Need To Do
The California State Bar's Standing Committee issued a report saying that while attorneys are not required to become a technology "expert," he/she does have a duty to have a "basic understanding of the technology" that he/she uses in their practice.
The American Bar Association similarly advises attorneys to take responsibility for deciding what is an appropriate level of security and to employ best practices for ethically using technology. This is admittedly vague guidance, so let us help you with some more specific suggestions that we think are consistent with the spirit of their advisements:
Get approval from your client. It's a good idea to include a paragraph in your retainer agreement that you use cloud-based storage and/or secure wifi in your office. You should also offer to provide the terms of service of any third party software providers that you use upon request of the client.
Use passwords. Passwords for your devices and accounts should be robust and updated often. If you keep all your passwords on a notepad in your desk, you might want to think about utilizing a password manager-which is, of course, another form of cloud-based storage.
Don't Dive In. While we encourage you to explore the options available to you, you should ease into new technology slowly so that you can be reasonably aware of what you are getting into and that you are comfortable doing it.
The benefits of using technology are many. Especially for small law firms and solos, access to complex legal applications and cloud based storage can allow them to optimize their practice and scale intelligently in ways that were previously unimaginable.
So long as you take appropriate steps to ensure that you are compliant with your duties of competence and confidentiality, using technology is a great way to offer better value to your clients while also allowing you to grow and manage your practice with the flexibility that is becoming the norm in today's modernized work environment.