Preston, Cheryl B., Lawyers’ Abuse of Technology (August 11, 2017). Cornell Law Review, Forthcoming; BYU Law Research Paper No. 17-25. Available at SSRN: https://ssrn.com/abstract=3037079
“The Article is a thorough analysis of how the current scheme for regulating lawyers has failed to adapt to technology and why that failure is disastrous. It discusses (1) why technology, electronic communications, and social media require specialized attention in lawyer regulation, (2) what mechanisms can be harnessed to meet this need, and (3) the (sometimes entertaining) ways in which lawyers’ use of emails, tweets, texts, social media, data storage, computerized research, and so forth cross the lines of ethical and professional values. The ABA recently amended the Model Rules to add the following language to the Comment of Rule 1.1: “[A] lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” A few lawyers are still behind in embracing the many technological tools available to assist in their practice. Others are taking full advantage of the benefits of technology – while turning a blind eye to the significant ethical and professionalism risks. In an area where the mistakes are easy to make and the resultant harms can be extensive and severe, lawyers need to be warned and trained; expectations need to be standardized, and those standards enforced. The need for formal guidance on the lines between appropriate and inappropriate electronic behavior is much more acute than the need for training with respect to long recognized practice hazards. As the recent ABA 20/20 Commission’s failures amply illustrate, the ABA cannot be expected to address the risks of technology within any reasonable time. While increasing pressure on the ABA to shore up the Model Rules, bar associations must take action now. One option is formal ethics opinions that a lawyers can research by jurisdiction, if the lawyer is alert enough to ask questions. A better option is a statement of best practices standards adopted by state, local, and practice group bar associations. Some jurisdictions already have professionalism and civility creeds, but almost all of these are devoid of guidance on technology use, as well as fraught with drafting and definitional problems. Standards need to be rewritten to clarify the nuances of technology use and ethics. This Article offers specific language to serve this purpose.”