The Duty of Technology Competence Doesn’t Mean Technology Paranoia

Last month’s announcement of the marriage between Microsoft and LinkedIn had ethics gurus coming out of the woodwork, warning of a parade of horribles that would flow from the pairing.

When the deal was initially launched, ethics CLE speaker Stuart Teicher wrote of potential threats to confidentiality – such as a Microsoft’s Outlook Calendar sending an auto-message to an opposing counsel in Chicago about meeting up with a lawyer after recognizing that he’d be taking a trip there to meet with clients.  Frankly, Teicher’s post was so far-fetched that I assumed that he was trying to leverage the news for speaking engagements – but just last week, I saw another post  on the same topic by ethics lawyer Karen Rubin, who admits that while none of these scenarios while admitting that none of these scenarios have materialized, the Linked-In/Microsoft deal is a reminder for lawyers to keep abreast of technology changes.

In addition to my aversion to the ChickenLittle phenomenon about new legal technology, Rubin’s and Teicher’s posts highlight the plain hypocrisy of presumptive suspicion towards new players. For example, Teicher suggests that lawyers may want to ditch their LinkedIn profiles in the aftermath of its merger with Microsoft, no one’s ever raised questions about ethics concerns that may arise from using old school products like LEXIS or Westlaw. If I search the phrase “child pornography and guilty” on LEXIS and then my client’s name, someone in house at LEXIS will be able to figure out my client’s secret. Yet no one has ever taken lawyers to task for not conducting due diligence on search tools like LEXIS and Westlaw before using them. In fact, I’m not sure that either LEXIS or Westlaw have provisions in their terms of service ensuring that searches remain confidential. But hey – since LEXIS and Westlaw fund most bar associations, they’re free from suspicion anyway.

The same was true with cloud-based technology – and bar’s requirements that we disclose to clients where we house their data. Meanwhile, no one ever demanded that we tell clients which banks hold our client trust funds – or that those funds aren’t necessarily secure .

Let’s face it – the duty of technology competence is a scam; a way to keep ethics and technology consultants in business, to fuel the CLE industry – and at the end of the day, yet another way to keep new entrants off our law. That’s not competence – it’s anti-competitive.

 

Photo courtesy of Shutterstock