Tech ignorance a major hurdle to conducting modern litigation

Guest Post by Michael Goodwin

Although recent changes to the ABA model rules specifically require technological competence, many lawyers remain unapologetic luddites. According to one federal judge, this lack of tech savvy is a major hurdle conducting modern litigation efficiently.

In the Fall issue of the journal Litigation, United States Magistrate Judge Patrick J. Walsh takes lawyers to task for what he perceives as a failure to educate themselves on basic technology:

Lawyers need to be versed in technology if they are going to be successful in discovery. If they are not, they should find someone in their firm who is and bring that person into the case for the discovery phase. Because I find that the lawyers are often unable to adequately discuss discovery of electronically-stored data, I often require them to bring the client’s information technology person to the hearing or have that person available by telephone to explain what the company is capable of retrieving and the time and costs that would be involved in doing so.

The failure to articulate the logistics and costs to find data, particularly electronically-stored data, is often fatal to arguments that the discovery sought is unduly burdensome or disproportionate.

A modicum of self-education is required, but like many lawyering skills, competently handling e-discovery is as much about asking the right questions, and finding out to whom they should be addressed. Learning the necessary technological concepts to manage e-discovery does not require a degree in computer science or a formal education in information technology, but it usually does require consultation with people who have that background. As Judge Walsh observes in the article, the client’s employees should be key members of the e-discovery team. These are the people who are usually in the best position to know where their ESI “lives,” how to capture it, and how much it will cost to do so. At least one landmark decision in e-discovery jurisprudence endorsed active collaboration with clients in the e-discovery process:

[I]f you are knowledgeable about and tell the other side who your key custodians are and how you propose to search for the requested documents, opposing counsel and the Court are more apt to agree with your approach.

Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182, 192 (S.D.N.Y. 2012). U.S. District Judge Shira Scheindlin made similar observations almost a decade ago in Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 439 (S.D.N.Y. 2004).

While obtaining appropriate tech skills does require some effort, lawyers aren’t alone. Teamwork, along with a willingness to learn, goes a long way.

Michael Goodwin is a litigation attorney at Jardine, Logan & O’Brien in Minnesota. Michael has experience in a range of practice areas, including government liability, insurance coverage, products liability, and employment law. He can be reached at mgoodwin@jlolaw.com.

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ABA sends takedown request to ethics opinions; misses the irony

Sam Glover at the Lawyerist.com reported on a takedown request aimed at Ernie Svenson, Ernie the Attorney. The work in question is ABA Formal Ethics Opinion 06-442, which sells for $20.00 on the ABA website. The ABA store also encourages membership, stating

Members of the The Center for Professional Responsibility receive a discount on this book. Join the Center or visit the The Center for Professional Responsibility website to learn more about the valuable resources included with your membership.

 American Bar Association

The ABA asks lawyers to volunteer their time and intellectual efforts, only to commercialize those efforts and sell them at a premium. It has policies demanding copyright from its volunteers that limit the dissemination of knowledge and frustrate the values of open access and improvement for the profession.

Congress recognized the importance of free access to law. The federal government cannot obtain copyright in works it authors – such as laws and reports – because there is no public benefit. State laws are treated as works in the public domain by case law.

Model laws and advisory opinions such as those published here by the ABA are not works in the public domain, so the ABA has every legal right to claim copyright in the works. As a primarily volunteer organization which relies on members time and efforts to create this content, the high prices and limits on access are inconsistent the values of the organization. The irony that a trade professional association dedicated to equal access to justice and the betterment of the profession demands payments for its guidance on how to practice law ethically will not be lost on the public, so why is it lost on the ABA leadership.

In contrast to the ABA’s approach, law schools around the country, including Harvard, Birkbeck, and Universidad de Puerto Rico have created open access to scholarly works. Perhaps the most expansive of resources is the Social Science Research Network, a global library of scholarship across most academic disciplines.

The ABA should continue to sell sophisticated content to willing purchasers written by volunteer authors. But any reports, opinions, or general information should be free to the public. If we wish to remain a self-regulated profession, then it is time to look past the short-term income opportunities and begin to embrace the ideals of the profession.

Changing Legal Education Needs to Mirror the Changes in the Legal Profession

Many advocates have been calling for change in legal education this past year, focusing on the debt of students, the effect of Big Law on the practice, the declining legal job market, the value proposition for law school, the need for better experiential learning and a variety of other topics. Among the leaders worth following are Bill Henderson, Nancy Rapoport, Brian Tamanaha, and Richard Suskind.

As part of the Chase College of Law strategic planning process, I recently entered the fray, focusing on one aspect of the changes to the legal practice that I had not seen fully addressed in the academic literature – namely the increasing automation of legal services provided by solo and small to medium sized law firms.

The article is: Legal Education in Disruption: The Headwinds and Tailwinds of Technology.

It is available at SSRN: http://ssrn.com/abstract=2040560. You can download the entire article directly here.

Abstract:
By harnessing improvements on communications and computational systems, law firms are producing a revolution in the practice of law. Self-help legal manuals have transformed into sophisticated interactive software; predictive coding can empower clients to receive sophisticated legal advice from a machine; socially mediated portals select among potential lawyers and assess the quality of the advice given; and virtual law firms threaten to distintermediate the grand edifices of twentieth century Big Law. These changes may profoundly restructure the legal practice, undermining the business model for many solo and small firm practices.

This paper focuses on the implications of these profound disruptive changes. It looks at the expectations the market may place on future lawyers and by extension the training necessary for lawyers entering the practice of law. The final section reflects a suggested curriculum and programmatic redesign, highlighting one possible future legal educational model, complete with acquiescence to existing constraints found in American Bar Association and other accreditation regimes.

Part one of the article tracks the changes that automation is bringing to the legal profession from self-help online tools to predictive document drafting and other innovations. It analyzes the potential of the virtual law firm, unbundled (or specialized) legal services and the development of virtual law firm networks that will grow into the standard for small firm practice.

Part two translates these changes for legal education. While much of the core subjects taught in law school today will remain the same (i.e. Contracts, Torts, Property, Civil Procedure, Constitutional Law, Evidence, Corporation, Tax, etc.) much else needs to change.

  • Like the other advocates for skills training, the article emphasizes clinical and field placement education for students.
  • Like advocates for better instructional design, it calls for law school to each subject like logic and communication skills explicitly rather than hoping that students will glean these skills from the first year classroom discourse.
  • It changes the focus on professionalism by recognizing that law is also a business, requiring law schools to prepare graduates with courses and training on the business of lawyering (including accounting, human resources, business development, legal business ethics, marketing, leadership and management training).
  • It also emphasizes that 64% of law practice is done for business entities and an additional 10% of attorneys work in-house. So the emphasis of law schools should better reflect the kinds of lawyering that are actual taking place. While this does not suggest abandoning litigation or the teaching of how to serve individuals, it requires a more accurate balance so graduates are less surprised by the environment in which they practice law.
  • Finally, it highlights that the nature of business has become global and technical so courses on international business, intellectual property and other fields relevant to the success of one’s clients should comprise the electives. Moreover, the proposal recognizes that many of these courses are better learned from the disciplines where the clients are trained, so interdisciplinary programs with certificates and even joint degrees should be encouraged.
  • The trade-off means that fewer credits and course hours are expended on the core subject matter law school teaches. This will not be a problem since the measure of seat time is a poor approximation of a student’s learning or competency. Instead, competency testing for both skills and knowledge should be integrated throughout the curriculum, allowing students to move at their own pace and demonstrate readiness to leave law school using something more precise than a six-semester schedule.

The paper is a draft, and I truly look forward to the conversation it generates. I would appreciate feedback and hope to post additional blogs on the dialogue as advocates and critics law school incorporate the changes into small firm practice into the debate.

Ethics in Informatics – Assessing ABA’s Ethics 20/20 Commission

May 4, 2012 the NKU Chase Law & Informatics Institute presents an ethics program focusing on the proposed changes to the ABA Model Rules of Professional Responsibility and similar changes to SEC Guidance for disclosure of cybersecurity risk. Dean Dennis Honabach and Professor Jon Garon will lead the conversation.

In 2009, The American Bar Association created the Ethics 20/20 Commission (“Commission”) to “perform a thorough review of the ABA Model Rules of Professional Conduct [(“MRPC”)] and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”[1] The Commission held hearings and developed draft statements regarding a number of topics, including the effect of technology on a lawyer’s duty of confidentiality and client development.[2]  Having completed its review on several key proposals, they will be brought to the ABA for approval in August 2012:

The ABA Commission on Ethics 20/20 is pleased to release for comment by April 2, 2012, along with a Cover Memo from Co-Chairs Jamie S. Gorelick and Michael Traynor, final revised drafts of Commission Proposals scheduled to go to the ABA House of Delegates in August 2012.  These six revised draft proposals cover the subjects of Technology (Confidentiality), Technology (Client Development), Outsourcing, and Uniformity/Mobility (including Model Rule 5.5 and Practice Pending Admission), Admission by Motion, and Model Rule 1.6 (Duty of Confidentiality).

In addition to the materials provided by the ABA, we have created a Summary Analysis as well as a CLE Powerpoint presentation.

To summarize the program:

The practice of law has largely gone digital in the past decade. Remote access to one’s office, reliance on smart phones to share data, email and social media to communicate with clients, and other emerging technologies to conduct overseas cloud-based outsourcing or operate virtual law offices have transformed the mechanics of practicing law.

The American Bar Association’s Commission on Ethics 20/20 is examining technology’s impact on the legal profession. In proposals recommended for adoption this year, the Commission proposes adoption of a new Rule 1.6(c) which would require that a “lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client.” While this duty has existed under the prior rules, the modifications make clear that this affirmative duty extends to data privacy, security and reliability.

These proposals also address issues of screening electronic information accessible to a law firm assure that confidential information known by a personally disqualified lawyer remains protected from inappropriate access by other attorneys; an affirmative duty to “keep abreast of changes in the law and its practice, including the benefits and risks associated with technology;” and many others.

Not to be outdone, the Corporate Finance Division of the Securities and Exchange Commission has taken steps of its own to require greater awareness, disclosure and reporting of issues relating to technological knowledge held by a company – including its lawyers. The guidance identifies that “a number of disclosure requirements may impose an obligation on registrants to disclose such risks and incidents. In addition, material information regarding cybersecurity risks and cyber incidents is required to be disclosed when necessary in order to make other required disclosures, in light of the circumstances under which they are made, not misleading.” Lawyers drafting these disclosures – and lawyers dealing with the risk assessment for their clients – as well as regarding their own practices – have an increasingly external standard of care and responsibility to meet the cyber-risks inherent in the modern digital practice of law.

While it is likely that many of the revised Rules of Professional will be adopted, the changes primarily codify the existing duty to maintain a lawyer’s ongoing duty to remain competent. These materials are intended to assist with that effort by providing an update to the ethical rules and the technologies at the heart of these changes.

The Commission has distributed its recommendations and solicited final comments through April 2, 2012. Final hearings were held April 13-14, 2012 and the Commission will be releasing the final versions of these proposals for approval at the August 2012 ABA Annual Meeting.

Law firm loss of computer drive highlights duty to protect firm data

Earlier this month, the Baltimore Sun and ABA Journal reported that the law firm of Baxter, Baker, Sidle, Conn & Jones lost a back-up hard drive containing 161 stent patient files. The firm properly recognized it should have off-site storage of its sensitive data to protect from risk of fire and flood but chose to have an employee take the drive home each night via commuter train.

According to the Baltimore Sun, “[t]he storage device held a complete back-up copy of the firm’s data, including medical records related to the stent malpractice claims, along with patient names, addresses, dates of birth, social security numbers and insurance information.”

The hard drive was password protected but not encrypted. While password protection provides some protection, it is a rather minimal level of protection. Law firms have a duty to protect confidential information both under their general ethical duties and under more specific state and federal laws. Here, the protected health information put at risk by the loss of the hard drive implicates regulations under HIPAA and the HIGHTECH Act.

Although it is unlikely the law firm is regulated as a health care provider, the law is much less clear whether the law firm must sign a Business Associate Agreement regarding the data. If the law firm was given access to the data on behalf of its client, then a Business Associate Agreement – and all the HIPAA data protection provisions – would be required. Where the data was collected in an adversarial matter from an opposing party, however, such a duty may not attach.

The niceties of HIPAA are only one of the problems. If the hard drive included all of the firm’s data, then there will be client names, and may also be client trade secrets and other confidential information.

The American Bar Association has recognized that lawyers have an ethical duty to take reasonable measures to protect a client’s confidential information from unintended disclosure and unauthorized access. In fact, a draft proposal will codify this existing obligation under a new ABA Model Rule 1.6(c).

1.6 (c) A lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client.

Factors to be considered in determining the reasonableness of the lawyer’s efforts include the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

As illustrated by the lapse at Baxter, Baker, Sidle, Conn & Jones, security starts with the physical safeguard of data – in the firm, its physical files and its electronic storage. Trains, backpacks, and car seats are never good ideas for the systematic ongoing protection of data. Secure, encrypted off-site storage is no longer expensive and likely the minimum standard.