Lawyer ethics rules must adapt to encompass new technologies

As technology develops lawyers face challenges dealing with new methods of doing business in light of traditional ethics rules, according to the ABA Journal. In 2009 the ABA Commission on Ethics 20/20 convened to review the existing rules in comparison with new and emerging technologies and make recommendations to update the ABA Model Rules of Professional Conduct. This was completed in 2013, but, as the ABA Journal describes, questions remain about how the updated rules apply in day to day situations with technology that is often rapidly changing.

The article stresses that the standard of reasonableness still prevails in the Model Rules, citing Model Rule 1.1, which provides "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." While this standard remains the same, however, there are still significant considerations for attorneys when dealing with new technology, prompting the addition of language about understanding the risks and benefits of technology in the comments to the rule. An example of these technology concerns raised by the article involves issues with maintaining confidentiality of client files and how that has changed dramatically with the advent of digital documents and cybersecurity concerns. This is governed by an updated Model Rule 1.6(7)(c), which provides, "A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

The ABA Journal also discusses how new technology impacts issues related to attorney marketing and solicitation of clients. The article references "lead generation services," such as those utilizing web services to attract clients, and the ethical impact they may have, citing concerns about issues such as the sharing of legal fees with non-lawyers, which is prohibited by Model Rules 7.2 and 5.4. A 2013 Lawyerist article suggests that these types of services also have the potential to raise other ethical issues and urges attorneys using them to be cautious about the services they select, making sure that the ads and marketing used comply with ethical rules and don't set unrealistic expectations.