ABA’s Ethical Use of Technology Update

by | Jul 29, 2013 | Ethical Use of Technology | 0 comments

footer_logoIn addition to requiring attorneys to keep up-to-date on “relevant technology,” several other amendments were made recently to the ABA’s Model Rules regarding the ethical use of technology in the practice of law. For a chart summarizing the most recent amendments to the ABA Model Rules, and looking at how the North Carolina State Bar has addressed similar issues without amending the NC Rules of Professional Conduct…,

Below is a summary of the most significant recent changes regarding the ethical use of technology (in my opinion) by the ABA. Unlike the competence amendment (discussed in greater detail here), these were primarily just codifications of what is already the law in most states (through enforcement and ethics opinions).

As you can see, in North Carolina, each major modification made by the ABA, with the exception of the specific mandate made regarding competency, was already part of an attorney’s ethical obligation, as demonstrated in the chart below (to find other states’ rules and how they compare to the ABA amendments, try here):

ABA Model Rule Update NC Ethics Opinion
Rule 1.6 – Attorneys must protect confidential information from unauthorized 3rd party access; must make “reasonable efforts” to keep confidential information secure RPC 215 (1995) – protecting confidential information in wireless transmissions2008 FEO 5 – regarding web-based management of client information
Rule 1.18 – Attorney-client relationship likely established where person submits representation-related information in response to specific attorney inquiry or where no disclaimer providedAttorney-client relationship likely not established where submission is response to general attorney advertisement or attorney only provides legal info of general interest 2000 FEO 3 – regarding whether attorney posting responses to questions on permanent internet bulletin board establishes attorney-client relationship2011 FEO 8 – regarding “live chat” services on attorney website
Rule 4.4 – Extending definition of documents sent inadvertently to opposing counsel to electronic documents, emails and attachmentsNarrows requirements to avoid review and use of metadata sent by opposing counsel unless attorney knows/should know that info sent inadvertently 2009 FEO 1 – More strict rule in NC regarding metadata (treats metadata the same as any other electronic document; holds that attorney who searches metadata of electronic documents in search of confidential information is in violation of Rules), otherwise same as ABA*
Rule 5.3 – Extends attorney’s duty regarding external nonlegal assistance to use of 3rd party companies for document management, cloud storage, and other software that has access to client informationExtent of duty is situational and fact specific 2007 FEO 12 – addresses generally a lawyer’s duties when outsourcing any work, to lawyers and nonlawyers alike2011 FEO 6 – addresses lawyer’s duties when contracting with Software-as-Service companies for retention and management of client information
Rule 7.2 – Lawyers may pay 3rd party customer-generation companies, but ads created by 3rd parties subject to same rules as attorney advertising alone 2011 FEO 10 – Essentially the same rule, but specifically addressing an attorney’s ability to advertise in group coupon (aka Groupon)-like services (it is permitted, provided the ads, and the payment therefore, comply with rules regarding attorney advertisement and payments to non-lawyers)
Rule 7.3 – Addressing improper attorney solicitation, specifically that use of advertising systems that automatically generate an ad based on particular search terms (read: user inputs) is NOT improper solicitation, absent other factors 2010 FEO 14 – Essentially the same rule, but establishes that the specific search terms the ad relies on must comply with ethical duty not to mislead

(The example is an attorney ad that uses a competing attorney’s name as a trigger to bring up the ad – such conduct is deemed misleading)

* – The ethics opinions available on the ABA’s website indicate that there is considerable differences from state-to-state regarding an attorney’s duty vis-à-vis metadata and inadvertent disclosure. For more information, the ABA has this helpful chart.