The New Normal: Technology, Law, and Ethics in an Increasingly Connected But Remote World
The Bencher—July/August 2021
By Andrew J. Throckmorton, Esquire
Refreshing our recollection on the relationship between attorney ethical duties and the accelerated integration of technology into legal practice that we are all witnessing is more important than ever. To date, 39 states have already adopted an ethical rule establishing an attorney duty of technology competency consistent with Comment 8 to American Bar Association (ABA) Model Rule of Professional Conduct 1.1. Artificial intelligence (AI) is driving innovation in key legal functions such as electronic discovery, contract review, and legal analytics. In the past year, the mass remoting of the legal industry in response to the COVID-19 pandemic further accelerated trends in legal technology innovation and adoption within law firms. Understanding our ethical duties considering these trends in legal technology and the consensus around an attorney’s duty of technology competency are particularly timely to consider.
Ethical Duties with Legal Technology
Duty of Competency
Comment 8 to ABA Model Rule 1.1 was adopted in 2012 establishing an attorney duty of technology competency to address the growing integration of technology into legal practice. ABA Model Rule 1.1 provides that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment 8 to Rule 1.1 further provides that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of…the benefits and risks associated with relevant technology[.]” Almost a decade after the duty of technology competency was adopted into the model rule, 39 states have formally adopted an attorney duty of technology competency. A working knowledge of the capabilities and applications of technologies like AI-powered analytics or electronic discovery tools is important to comply with this ethical duty.
Duty to Communicate
Consulting with your clients about the use of technology on their matters is necessary to comply with the duty to communicate. Under ABA Model Rule 1.4(a)(1) lawyers must “reasonably consult with the client about the means by which the client’s objectives are to be accomplished[.]” Consider technology tools such as cloud storage, third-party vendor databases, or AI-powered analytics or technology-assisted review (TAR) software. Lawyers are increasingly turning to these types of technologies to augment work on client matters. Failure to adequately inform and consult with the client about technology used during a representation and obtain necessary approvals can violate the duty to communicate.
Duty of Confidentiality
Technologies such as cloud storage, remote environments, or AI-powered analytics tools are regularly used to work on client matters, and it is important to ensure that the use of these tools protects the confidentiality of client data. ABA Model Rule 1.6(a) requires that “[a] lawyer…not reveal information relating to the representation of a client unless the client gives informed consent[.]” Depending on the matter, highly sensitive or proprietary client data may be involved that the client is not comfortable transmitting to a third party for storage or processing. Complying with this part of the rule means communicating with the client and obtaining approval under ABA Model Rule 1.4 on the use of a third-party vendor and the type of client information handled by the vendor.
Disclosure of client data is another risk when using technology tools that transmit or store data electronically, particularly when a third party’s technology tools are used. ABA Model Rule 1.6(c) requires that “[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.” Third party vendors routinely work with lawyers to store or process client data. Once client approval is obtained to use a third-party, such as a vendor, make sure to communicate and confirm appropriate confidentiality safeguards with the vendor. This can include limiting access to specific users, segregating data to a particular database, or monitoring access to maintain confidentiality.
Duty to Supervise
Technology tools like AI-powered software automate specific legal tasks, and it is crucial to carefully review work product produced using technology tools for accuracy and completeness. ABA Model Rule 5.3 places a responsibility on lawyers to supervise non-lawyer assistance, which includes legal technology tools such as AI-powered software. The language of ABA Model Rule 5.3 was updated in 2012 from non-lawyer assistants to non-lawyer assistance to reflect the growing integration of technology into legal practice.
As an example, TAR uses AI to replicate the coding of human attorneys on documents, while contract review software identifies potentially missing clauses in agreements. Supervision of a tool such as TAR can take the form of human attorney review of finalized production sets of documents for privileged communications or confidential information. Using quality control teams of human attorneys performing routine review of documents flagged for privilege or confidential data is another good step to take to avoid an inadvertent disclosure. Supervising contract review software similarly requires a human attorney to review the output for accuracy and completeness.
Managing Technology Risks
Disclosure of Client Data
Inadvertent disclosure of client data to third parties is a risk with the use of technology to perform legal tasks and process sensitive client data such as privileged communications. This is worth specific mention because attorneys on both sides of a disclosure have ethical obligations while it is determined whether the disclosure was inadvertent or whether it acts as a waiver.
A lawyer handling client data is subject to the duty of confidentiality under ABA Model Rule 1.6 to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of client information. On the other hand, ABA Model Rule 4.4(b) requires that lawyers who receive a disclosure and know, or reasonably should know, that the document was sent inadvertently should promptly notify the sender. Comments 2 and 3 to Model Rule 4.4 include the statement that a lawyer who reads or continues to read the document may be subject to court-imposed sanctions, including disqualification and evidence preclusion. Given these duties under the model rules, lawyers on each side of a disclosure must handle the disclosure in a way that preserves confidentiality while the issue of whether a disclosure acts as a waiver is resolved by the parties and the court.
Mitigating Inadvertent Disclosure
A disclosure is not always a waiver if specific steps are taken. Federal Rule of Evidence 502(b) provides that a disclosure does not operate as a waiver in a federal or state proceeding if the disclosure is inadvertent and the holder of the privilege takes reasonable steps to prevent disclosure and promptly acts to rectify the error. An attorney receiving a disclosure must take specific steps under Federal Rule of Civil Procedure 26(b)(5) once made aware of the production of privileged information: (1) promptly return, sequester, or destroy the information and any copies; (2) not use or disclose the information until the claim is resolved; and (3) take reasonable steps to retrieve the information already disclosed before being notified. The producing party is required to preserve this information while the issue is submitted to the court to resolve the disclosure.
Taking proactive steps early to adequately supervise the work product created using AI-powered technology tools such as TAR will ensure that ethical duties such as the duty of confidentiality or the duty to supervise are not violated. Similarly, parties receiving discovery can avoid ethical issues by taking the steps outlined in Federal Rule of Civil Procedure 26(b)(5) to properly handle disputed productions. Entering into a clawback agreement with opposing counsel is another proactive step to take to minimize the risk of an inadvertent disclosure. A clawback provision limits or reverses a production for specified reasons. Under Federal Rule of Evidence 502(d) a clawback provision can be included in a protective order.
Ethically Connecting in a Remote World
The world is paradoxically increasing in its connectedness and remoteness. Legal work is performed more and more in decentralized ways because technology tools make it simple to transmit, process, and store client data. Knowledge of technologies such as AI that are used to augment legal work will both help fulfill our ethical duties to clients and prepare us to provide crucial guidance as clients seek to navigate complex decisions dealing with these same technologies. As counselors to decision-makers, lawyers have an important role in guiding the implementation of AI and similar technologies. Issues such as consumer data privacy or bias in AI decision-making are arising due to greater use of automation technology, which can expose clients to legal liabilities such as discrimination claims.
Wise legal guidance from lawyers will protect clients from these emerging liabilities as regulations are developed to address the impacts of greater technology integration and automation on society. As we consider our ethical duties to clients in our use of technology, we are also becoming more knowledgeable counselors on the complex technologies our clients are seeking to understand and use wisely in our increasingly connected world.
Author’s note: Credit is due to Tom Wilkinson, Esquire, of Cozen O’Connor, a Master of the Bench in the Villanova Law J. Willard O’Brien American Inn of Court, and an expert on legal ethics, for his help understanding the nuanced issues arising from inadvertent disclosure.
Andrew J. Throckmorton, Esquire, is an attorney based in Philadelphia, Pennsylvania. He is an Associate in the Villanova Law J. Willard O’Brien American Inn of Court.