Debates about the ethics of lawyers using technology to practice law—using Dropbox, Evernote, iCloud, Facebook, email, smartphones, and iPads—have advocates at all parts of the spectrum, from “always” to “never.” But informed lawyers agree there is room for debate only after fundamental safeguards are implemented.
My aim in writing this essay was to create a universal framework that examined the ethics and negligence of technology used in legal practice—regardless of the software, hardware or any feature of any technology, presently existing or yet to be invented. Fundamental safeguards must be first identified, then dissected, and lastly examined in day-to-day legal practice.
I have approached the topic from the perspective of a court or tribunal charged with determining, after complaint by a client, whether a lawyer is guilty of unethical conduct or negligence (malpractice). That court, in making its determination, will draw upon international standards because technology is the same everywhere. I have synthesised international sources into a statement of principles I hope reflects an international consensus between lawyers and computer scientists about fundamental safeguards for lawyers’ use of technology. These I have called the pillars of digital security.
The 7 pillars link (1) key terms of the American Bar Association’s model rules of professional conduct and their equivalent local regulations, (2) how computing devices work, and (3) how lawyers practice their profession.
This essay is designed to be read by both lawyers, and the computer scientists who give them IT support. Many lawyers know very little about technology, and lack the time or interest to learn. But those same lawyers need to make professional decisions about technology now. So I designed this essay as a Rosetta Stone: lawyers can give directions, in a way familiar to lawyers, to computer scientists, in in a way familiar to computer scientists, about how lawyers want computer scientists to configure their computing devices to work the way lawyers want them to work. Every lawyer has a unique way of working, refined and polished over years. It is essential that be left undisturbed. The greatest task before civilization at present is to make machines what they ought to be: the slaves, instead of the masters.
In July 2014, I gave the original 90-minute presentation to the New South Wales Bar Association about this paper. The video recording of that presentation is now streaming for free for members of the Bar Association. Non-members may have access by joining the Association, and should contact the Bar Association's Professional Development Department.
The essay was first published in Bar News: the journal of the New South Wales Bar Association. You can download a copy here.
The essay was updated for an address to the Victorian Bar Association on 16 October 2015. The main changes in the update concern: (1) the Legal Profession Uniform Law (NSW and Vic) that commenced 1 July 2015; (2) advances in biometrics; and (3) the dangers of unsupported software. You can download a copy here.