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Understanding Technology to Save Clients from Themselves

by Carolyn Elefant on December 17, 2012 · 13 comments

in Ethics & Malpractice Issues, Tech & Web

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On several occasions, I’ve described myself as a practical technologist, mastering and adopting new technology tools on a strictly need-to-know basis to serve clients.  So for me, having the latest, greatest gadget was never as important as being an early adopter of tools like client portals or webinar platforms or blogging so that I could communicate with and educate clients.

But now I’m finding that in a technology age, the category of “need-to-know” technology is rapidly expanding.   All of a sudden, many technology issues that most lawyers once gave short-shrift are now critical — not because of how they affect our ability to practice law but rather, because they’re getting our clients in trouble.

Take social media for example.  Though many lawyers still persist in trivializing the role of social media in developing business or generating clients, lawyers who ignore social media or don’t understand how it works are potentially prejudicing their clients’ cases.   I’ve heard lawyers advise clients in contested cases to delete their social media pages not realizing that they’re raising potential spoliation issues, while other lawyers invite clients to friend their law firm page without cautioning them about potential confidentiality issues (no problem if an attorney asks a client to friend your law firm page so long as you warn that doing so may reveal to others that they’re working with a lawyer).  So even though you may not want to fritter away time on social media, if you don’t understand how it works first-hand, you may compromise your clients’ case or privacy.

Security is another area where lawyers require understanding to keep clients out of trouble. In my practice, I routinely deal with confidential energy information that can only be released subject to execution of an NDA, and can’t be publicly filed.  A client provided me with materials in PDF format that “redacted” the information, but when I exported the file to text to test the redaction, I was able to access the confidential information.  If  I hadn’t been sufficiently familiar with PDF redaction to recognize that it’s rarely foolproof, I’d have OK’d the filing potentially putting my client at risk of a penalty.  The same issues arise with meta-data as well. And what about email security? Courts have held that when employees send email from a gmail account or secure cloud based service from the office, the communications aren’t private even though the account is password protected. The same logic could extend to client portals as well – if a client reads or downloads documents from a secure client portal on someone else’s machine, does privilege remain intact?  It’s not enough to use client portals to be trendy; lawyers have to understand the potential ethical consequences.

Maybe you don’t like technology or think that it’s too costly or a waste of time.  That’s your prerogative.  But just as ignorance of the law is no defense, ignorance of technology is not excuse when doing so may compromise our clients’ cases.  At a minimum, we lawyers must use and understand technology if only to save our clients from themselves.

  • Brian Tannebaum

    I’m really trying to make sense of this part, because of course I am one of those lawyers that trivialize: “Though many lawyers still persist in trivializing the role of social media in developing business or generating clients, lawyers who ignore social media or don’t understand how it works are potentially prejudicing their clients’ cases. ”

    What does one have to do with the other. Yes, we as lawyers should continue to persist in knocking down all the scam artists that persist in convincing young lawyers that they will never get clients without social media. I just don’t know how that affects lawyers, like me, that persist in telling clients that social media can get them in trouble.

  • Carolyn Elefant

     Brian,
    Actually, I wasn’t referring to you in this post. You use social media so you are free to trivialize it because you know what you know how it works.  We may disagree but you’ve tried it and have an opinion. My post references those Iawyers who trivialize social media because they’ve never used it and further, who don’t use it, don’t know what it does and don’t know how it works and can’t knowledgeably advise clients about it. I would imagine that your advise to lawyers about not using social media (or being careful about it) carries more weight because of your experience.

  • https://plus.google.com/112141134549791668514/posts Michael Holmes

    “Ive heard lawyers advise clients in contested cases to delete their
    social media pages not realizing that they’re raising potential
    spoliation issues,…” Wow! Its funny you should say that especially since social media is archived indefinitely (to my knowledge) And Twitter just released the ability to bring up old archived tweets. But this is a great piece

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  • Pingback: More on Social Media and the Law | Kalamaya Law

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