There really IS a new tech duty

Ethics tiles

For ages, lawyers have been able to stick their head in the sand about technology. At the very least, we’ve been able to push the problems to the another part of the sandbox. If the copier jammed, we’d shout for our secretary and leave it to her to fix (and in was usually a “her” in those days). If our computer locked up, we’d shout for the IT guy and we’d expect it to be up and running when we were back from lunch (and it was usually a “him” in those days). But technologies today are different and they are causing new duties to be created for lawyers.

For instance, the disciplinary authorities know that technology like cloud storage is prevalent these days. They also understand that the dangers inherent in using those new technologies are severe. As a result, a new duty applies to lawyers who use the cloud.

For some time I’ve been shouting that there exists a duty to understand technology. I’m not talking about understanding the law regarding technology. I mean a duty to understand the underlying technology itself. Granted, one might argue that there isn’t a separate duty in that regard and that it’s really just a subset of the duty of competence (Rule 1.1). To that I reply, “toe-may-to, toe-mah-to.” I don’t care how it fits into the rules, the bottom line is that it’s there and a recent ethics opinion in Alaska proves it’s existence. See Alaska Bar Association Ethics Opinion No. 2014-3.

On page 3, the authors state, “A lawyer engaged in cloud computing must have a basic understanding of the technology used and must keep abreast of changes in technology…Technological changes, the regulatory framework, and privacy laws are all matters requiring the lawyer’s attention.”

Thus, if you want to use technology, you must understand that technology. YOU must understand it. Not just your secretary or the IT guy/gal. You, individually, must understand the underlying technology.

For the ethics geeks like me, you aren’t surprised that this text is in the Alaska opinion. Heck, we’ve seen this in several opinions recently. But there are a bunch of you out there who didn’t believe me when I told you this at some of my CLE seminars. So, I guess what I’m really saying in this post is….“Told you so.”

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