On Legal Ethics

 

May 15, 2012

November 6, 2012


Paperless practice and ethical rules, part I: technology and client communication

Most lawyers in today’s world have set aside their fountain pens and yellow legal pads and opened their laptops. Many lawyers have taken paperless practice to the extreme, carrying all of their data in a flash drive that hangs around their neck and storing all of their files in the cloud. With the disappearance of physical client files and related materials, what ethical rules can potentially apply within the contemporary world of the Green Law Office? The answer is: the same ethical rules that apply to a lawyer practicing law with a yellow pad and fountain pen. The difference is in the application.

Client communication: enhanced expectations

One significant way in which virtual law practice has affected modern lawyers is in connection with lawyer-client communication. Clients used to complain that lawyers were notoriously bad about returning client phone calls. In today’s world, client expectations are even higher. Contemporary clients use email or text messaging to contact their lawyers, and an immediate response is expected. California Rule of Professional Conduct 3-500 governs a lawyer’s ethical duties in communicating with his or her clients.

Rule 3-500 requires a lawyer to “keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.”

The Discussion section to Rule 3-500 notes that while clients must be informed of significant developments, a lawyer will not be disciplined for failing to communicate insignificant or irrelevant information. The Discussion section references California Business and Professions Code section 6068(m), which states that one of the duties as an attorney is to respond to reasonable client status inquiries and “to keep clients reasonably informed of significant developments” regarding the subject matter of their legal employment. Lest anyone take a violation of section 6068 lightly, California Business and Professions Code section 6103 states that violations of any of an attorney's duties “constitute causes for disbarment or suspension.”

Looking to ethics opinions on technology and practicing law

In addition to communication, corresponding electronically with clients raises a host of issues related to client confidentiality, privacy, duty of competence and more. While the California Rules of Professional Conduct have not changed recently to specifically accommodate virtual law practice, ethics opinions that address such issues have come out across the nation. Guidance on many of these ethical issues can thus be found not only in the California State Bar Rules of Professional Conduct and the California Business and Professions Code, but also within ethics opinions from California and around the country.

With regard to looking to ethics opinions for guidance, California Rule of Professional Conduct 1-100 states that while they are not binding authority, California ethics committee opinions should be consulted by California lawyers “for guidance on proper professional conduct.” The rule also states that “ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.”

California State Bar Formal Opinion 2010-179 addresses some of the ethical issues surrounding a lawyer’s use of technology in the practice of law. Lawyers are cautioned that the type of technology they use may implicate the potential issues they face, the kinds of precautions they use, as well as the type of consent they might seek to obtain from the client. The use of technology is a critical concern in modern legal practice given that many lawyers enjoy sitting at Starbucks or in airports using free public Wi-Fi access.

The opinion advises practitioners to consider, before using any technology in particular, how secure the technology is, what steps can be taken to increase the security of the technology, potential sanctions for unauthorized interception of electronic data, the level of sensitivity of the information, how the client could be adversely affected by inadvertent disclosure of private information, the presence or absence of exigent circumstances, and the wishes and instructions of the client. The opinion explains that these considerations are important in analyzing whether the lawyer violates his or her duty of confidentiality to the client, or the duty of competence.

Regarding methods of communicating with clients, several out-of-state ethics opinions have concluded that, generally, a lawyer may communicate confidential information via unencrypted email. (See New York State Bar Association Op. 820 (2008); ABA Formal Opinion No. 99-413.) The ABA opinion finds email comparable privacy-wise to commercial mail, landline telephone transmissions and fax communication, but cautions lawyers to consult with their clients regarding the preferred mode of sending highly sensitive information.

Conclusion

Electronic communication has facilitated the practice of law in many ways and is a valuable mode of communication for the lawyer who is familiar with all of the applicable ethical rules. A working knowledge of the law and ethical rules governing the mechanics and limitations of online communication will allow you to interact in the virtual world of the Green Law Office effectively as well as ethically. Good luck!


Patrick is chair of the California State Bar Committee on Professional Responsibility and Conduct and immediate past chair of the San Diego County Bar Association Ethics Committee. She writes and lectures on ethics nationally and internationally. Patrick is also a San Diego County deputy district attorney in the Sex Crimes and Stalking Division and has been named by her peers as one of the 2010 Top 10 criminal attorneys in San Diego by the San Diego Daily Transcript and a 2010 Superlawyer. She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.


 

May 15, 2012

November 6, 2012


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