According to this recent post by Bob Ambrogi, Michigan is poised to potentially join 36 other states in adopting some version of ABA Model Rule 1.1 (Comment 8) which instructs lawyers to “keep abreast of changes in the law and its practice including the benefits and risks associated with the technology relevant to the lawyer’s practice.”
Many lawyers interpret the duty of tech competence as requiring lawyers to learn how to use Word correctly or to understand the risks associated with sending sensitive documents by unencrypted email. To be sure, while these tasks are important, they’re easily addressed either through using one of the many cloud-based practice management systems designed for lawyers that have security baked into their systems. Likewise, though a lawyer ought to know how to type a document, when it comes to final cite-checking and formatting I’ve found that outsourcing production of appellate briefs costs around $200 – making it hands-down more efficient and cheaper than law clerks, associates, my assistant, a collaborating firm’s assistant or doing it myself.
But there are other types of tech that are far more important for all lawyers — including solos and smalls — to understand – because the consequences of failing to do so can jeopardize clients and give rise to malpractice liability. Here are four emerging topics that are infiltrating nearly ever practice area and that all lawyers ignore at their peril. I’ve attached a couple of resources to help you get quickly up to speed. By the way – with the exception of deep fakes, all of these topics were covered in my 41 Practice Areas That Didn’t Exist 15 Years Ago.
Simply put, an algorithm is a series of instructions telling a computer what to do. Most lawyers have come in contact with algorithms – whether through the search engines that they use for legal research or more recently for Avvo’s controversial algorithm-based ranking system. More recently, however, algorithms are employed for tasks that may substantially impact individuals’ rights, with little understanding of the consequences. Algorithms have been used to deny credit (in decisions that may be biased based on race), criminal sentencing , to resolve family law disputes and in hiring decisions . Because algorithms are touted as sophisticated AI tools, many are inclined to accept the results without challenge – a practice that this recent ABA Journal article by Jason Tashea and Nicolas Economou cautions against.
The point is that algorithms aren’t just limited to big law anymore. Whether you are an employment law attorney, criminal defense lawyer or family law attorney, chances are that an algorithm will impact your practice. Here are a couple of examples: You represent a criminal defense client who’s been offered a plea, contingent on willingness to accept algorithm-based sentencing. How do you advice him? Or, a woman comes to you asking you to review the terms of a settlement agreement agreement where distribution of property was determined by algorithm. Can you rely on that disposition without committing malpractice, or must you advise the client to seek more information? Can a real estate company client post ads on Facebook using a company that employs an algorithm that will post ads on sites that attract whites only? Lawyers must be prepared to deal with these questions to advise and protect clients.
Additional Resources on Algorithms and the Law
Chapter on Algorithms from 41 Practice Areas The Didn’t Exist 15 Years Ago
Legal and Ethical Implications of Using AI in Hiring (HBR April 2019)
2. DEEP FAKES
Imagine that you receive a videotape of one of your university employees doing cocaine – so you fire him. He denies it and sues and you learn during the course of the suit that the video was really a very convincing deep fake – an AI-powered technique that allows users to superimpose images. With deep fakes, seeing is no longer believing. Deep fakes raise concerns for any trial lawyer, requiring them to be attuned to the possibility that an exhibit may not be real and must be challenged. Likewise, lawyers may represent clients who are the victims of deep fakes – like a woman whose ex-boyfriend pastes her face on nude photos and circulates them all over the internet. The problem of deep fakes will only increase as technology becomes more sophisticated – and solos and smalls need to stay abreast of developments.
Additional Resources on Deep Fakes
Not much yet available on deep fakes – but that may change very quickly. Here are the resources I managed to find:
Deep Fakes May Try to Ruin the World (April 4, 2019)
3. INTERNET OF THINGS
The Internet of Things (IOT) extends Internet connectivity into physical devices – from Fitbits to smart-home devices to tools like Alexa. Most lawyers use IOT devices in their personal lives and increasingly are employing them in their professional practices. But IOT technology also infiltrates many of the matters that solos and smalls handle for clients. Criminal suspects can be located and tracked through a trail of IOT bread crumbs. Seeking IOT data in discovery has now become routine – and most likely malpractice not to ask for it. And questions also frequently arise over who owns all what data to begin with . If you haven’t yet encountered IOT issues in your practice, rest assured, they’re coming. And below are some resources to get you started.
Additional IOT Resources
Internet of Things Chapter from 41 Practice Areas that Didn’t Exist 15 Years Ago
Handling Internet of Things Data in Litigation (by Kramer Levin – comprehensive, excellent article on seeking IOT data in litigation)
California Regulations on IOT Devices (ABA Journal December 2018)
4. DIGITAL ASSETS AND ESTATE PLANNING
Many estate planning lawyers are hopelessly behind on assisting clients in making provisions for digital assets. In so doing, they expose themselves to malpractice. Without proper provision for digital assets, beneficiaries can lose out on substantial sums of money that they cannot locate or access. Many lawyers I’ve spoken with have dismissed digital assets figuring that most older clients aren’t using the Internet. But that’s not necessarily the case. To the contrary, older clients may indeed be using the Internet but not be aware of the need to make provisions for disposing of assets. At some point, lawyers will be sued for failing to advise on digital assets- and deservedly so.
Additional Resources on Digital Assets
Digital Assets chapter from 41 practice Areas That Didn’t Exist 15 Years Ago
Digital Assets Guide to Planning (Jan 2018)(short checklist)
Cyber Estate Planning & Administration (journal article revised April 2019)
Digital Assets & Fiduciaries (describing cases where fiduciaries challenge terms of service)