Posted on Nov 17, 2022
From incorrect redactions to inadvertently disclosing confidential client information, there is plenty of evidence of lawyers using technology incompetently. But as technology becomes embedded in modern legal practice - lawyers must educate themselves about technology or face the risk of failing to uphold their ethical duties.
Explore the increasingly complex interplay between lawyers, technology and their ethical obligations.
Troubling examples of technological incompetence
Technology is developing at incredible speed. Although it brings many benefits, the rate of change is challenging for many lawyers. In recent years, this resulted in some troubling examples of lawyers using technology inadequately, leading to severe breaches of their ethical obligations and serious consequences for their clients.
Alex Jones and his expensive text messages
On the final day of testimony in his defamation trial, Alex Jones was confronted with evidence that contradicted earlier claims that he had nothing on his phone relating to the deadly 2012 Sandy Hook school shooting. Jones’ own lawyer had - inadvertently - sent a digital copy of Jones's entire cell phone to the opposing party. Jones now faces potential perjury charges for lying under oath and an eye watering damages order of USD $1.44 billion.
Paul Manafort and his unredacted documents
In another high profile case, lawyers for Donald Trump’s former campaign manager, Paul Manafort, filed a court document that was not completely redacted. The redaction technology was not used properly so parts of the document, which were supposed to be redacted, were completely readable. The document revealed that Manafort had lied to the FBI concerning the investigation of alleged Russian meddling in the 2016 US presidential election. Manafort was later sentenced to 7 years imprisonment.
Both cases were quickly picked up by news media outlets worldwide. And even though you might not make mistakes that are as spectacular or high-profile if you misuse technology there could still be grave consequences for you and your clients.
Why is there a growing gap between the law, clients and technology?
In the 1960s, American engineer Gordon Moore predicted that computing power would double every two years. If anything, this rate is now speeding up.
This stands in stark contrast with how the law operates. Historically, the law tends to move slowly - and for good reason. It must provide certainty, and cannot perform this function in a state of constant change. Lawyers are also trained to carefully consider, assess and mitigate risks - resulting in a cautious approach to change.
But the clients who lawyers serve are increasingly tech-savvy. They rely on technology in their personal and business operations, and expect their lawyers to understand the associated risks and legalities. They also assume lawyers’ service delivery standards will match other service providers.
This combination of factors is creating an ever-growing gap between the law, clients, and technology.
In this context, lawyers must choose to embrace technology to best serve their clients - and avoid being left behind.
What does this mean for your ethical duties?
When lawyers choose to rely on technology to serve their clients they must also understand how to use it appropriately and how to mitigate any inherent risks. This is critical to ensure you uphold your ethical duties of competence and diligence - and that you can maintain client confidentiality.
The examples of Alex Jones and Paul Manafort’s lawyers show how even the use of the most seemingly simple technology can go spectacularly wrong - undermining your ethical obligations and creating disastrous consequences for clients.
But as the rate of technological change increases, your tech-literacy cannot simply focus on the tools you currently use. You also need to take a broader view and build new skills and knowledge to keep up-to-date with how things are changing. This will ensure you continue to provide the best possible service to your clients - and uphold your own ethical obligations.
Other resources you might like:
- [Insight] Why Lawyers Love to Hate Legal Innovation
- [Free Resource] Email Ethics for Lawyers: How to Navigate the Perils of Email
- [CPD Course] Lawyers’ Ethical Duties in the Digital Age
- [CPD Course] Ethics and Email
What's your next step?
So what can you do to better understand the technology you use - and uphold your ethical duties to your clients? Here are 3 strategies to help you get started:
Learn what ethical challenges look like in a digital context
Educate yourself on how your use of technology impacts your ethical duties to clients, and make changes to ensure you are using technology securely and ethically in your own practice.
Develop expertise in specific areas of technology
Understand the complexities associated with different types of technology, ranging from ethical concerns relating to email use and cyber risks to challenges associated with researching the opposing party's social media profile.
Build new skills to better deal with constant disruption, such as a growth mindset
Get started today! Discover our new course, "Lawyers' Ethical Duties in the Digital Age" for a deep dive into how technology impacts your professional obligations and to learn strategies that will help you - or your firm - navigate these ethical challenges.