Ethics & Technology S A R I W. M O N T G O M E R Y R O B I N S O N L A

Ethics & Technology S A R I W. M O N T G O M E R Y R O B I N S O N L A W G R O U P, L L C 3 2 1 S . P LY M O U T H C T. , 1 4 T H F L O O R C H I C A G O, I L 6 0 6 0 4

Don’t Be Afraid of Technology! Additions to the ABA Model Rules of Professional Conduct recognize the value (and reality) of technology in legal practice. Illinois recently adopted ABA rule amendments related to technology and rules encouraging the use of Limited Scope Representation. Technology can enhance legal practice and facilitate providing services to greater numbers of clients.

Use of Technology in Legal Practice is Not New Introduction of email and fax use in late 90’s started conversation. ABA Formal Opinion 99-413 addressed ethics concerns related to use of email for client communications. Concluded that, despite some risk of interception and disclosure, use of email was consistent with lawyer’s ethical obligations of confidentiality. Ethics rules do not impose greater or different duties depending upon the method of communication/use of technology, although modified practices may be required for compliance.

Applicable Rules of Professional Conduct Rule 1.1—Competence New Comment 8 (Effective January 1, 2016) incorporates concept of technology into definition of lawyer competence. Rule 1.2—Scope of Representation Allows lawyers to limit scope of representation--Beyond the “scope” of this presentation. Rule 1.6—Confidentiality New Section (e) (effective January 1, 2016) requires lawyers to make “reasonable efforts” to prevent unauthorized disclosure of client information. New Comment 18 defines “reasonable efforts.”

Applicable Rules (cont’d) Rule 5.3—Responsibilities Regarding Non- Lawyer Assistance Additions to Comment 3 specifically references lawyers’ duties when utilizing outside service providers including internet-based storage services. Rule 5.5—Unauthorized Practice of Law Comments 2 & 3—Lawyers can provide training and instruction to non-lawyers who are performing law related tasks under their supervision.

Rule 1.1--Competence Lawyers must provide competent representation to clients. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Comment 8 added January 1, 2016 To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Competence Requires Use of Technology ABA Commission on Ethics 20/20 (pre-cursor to recent Rule Amendments, Aug. 2012) “In order to keep abreast of changes in law practice in a digital age, lawyers necessarily need to understand basic features of relevant technology. . .” Explicit addition of reference to technology in Comment emphasized the importance of technology to modern law practice.

Rule 1.6—Confidentiality Illinois adopted Model Rule 1.6 addition as Illinois Rule 1.6(e) effective January 1, 2016. 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. Rule requires “reasonable efforts” not impenetrable under every circumstance. Unauthorized access to or disclosure of client information not a violation if lawyer has made reasonable efforts to prevent disclosure. (Comment 18) Inadvertent disclosures can (and does) happen, but this should not preclude use of technology.

What are Reasonable Efforts? Reasonable efforts vary depending on particular representation. Some clients may have already surrendered many privacy rights. This does not vitiate duties of confidentiality, but adds context to analysis of “reasonable efforts.” Comment 18 to Rule 1.6 provides factors to consider: Sensitivity of information Likelihood of disclosure if additional safeguards are not employed Cost of employing additional safeguards Difficulty of implementing the safeguards Extent to which safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or piece of software excessively difficult to use) Whether additional steps are required to comply with state or federal law governing data privacy is consideration but beyond scope of ethics rules. Ex. HIPPA, etc.

ABA Formal Opinion 477R ABA issued comprehensive opinion regarding use of technology in May 2017. ABA rejected requirements for specific security measures (firewalls, passwords, etc.) Technology changes too rapidly to identify specific measures Fact-specific approach implementing security measures commensurate with risks. (See also ABA Cybersecurity Handbook)

ISBA Advisory Opinion 16-06 Specifically addresses permissibility of cloud computing in legal practice. Risks of storing client info in cloud no greater than risk that confidential information could be disclosed or obtained through unauthorized access to paper files. (Citing Nevada Opinion No. 33 (2006)) Need to take reasonable measures to protect client information in either case.

Rule 5.3—Responsibilities Regarding Nonlawyer Assistance Comment 3 explicitly contemplates using an internet based service to store client information. Lawyers must make reasonable efforts to ensure that outside service providers comply with lawyer’s professional obligations. Comment 3. Lawyer should conduct due diligence when selecting provider

What is Due Diligence? ISBA Op. gives guidance Review industry standards and familiarize oneself with appropriate safeguards Investigate whether provider has implemented reasonable security precautions to protect client data from inadvertent disclosures (i.e., firewalls, password protections, encryption, etc.) Investigate provider’s reputation and history; Inquire as to whether provider has experienced breaches of security Require agreement to reasonably ensure that provider will abide by lawyer’s duties of confidentiality and will immediately notify the lawyer of any breaches;

Due Diligence cont. Require that all data is appropriately backed up completely under the lawyer’s control so that lawyer will have a method for retrieval of the data Require provisions for reasonable retrieval of information if agreement is terminated or if provider goes out of business.

Rule 5.5—Unauthorized Practice Cannot assist another in practicing law where practice would be prohibited BUT: Rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. (Comment 2) A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. Lawyers also may assist independent nonlawyers, such as paraprofessionals, who are authorized by the law of a jurisdiction to provide particular law-related services. (Comment 3)

Is Use of Technology Platforms Unauthorized Practice? Rules don’t explicitly address use of triage or interactive digital platforms for providing legal services. Generally accepted that interactive form-generating platforms do not constitute the unauthorized practice of law if lawyers involved in creation of forms. See, e.g., LegalZoom.com Inc. v. North Carolina State Bar, 2015 WL 6441853 (Oct. 22, 2015)(unpublished). What about Chatbots/AI? See, e.g., 103-Jul A.B.A. J. 34, Victor Li, Talking Tech (July 2017); Law Practice Today, Martin, Tom, “The Promise and Peril Chatbots Pose for the Legal Industry.” June 14, 2017.