Young lawyers—most, if not all, of which are part of the “Millennial” generation—have grown up around and become proficient in using all sorts of technology. Thanks to this exposure and expertise, young lawyers are often the recipients of technology-related questions or assignments—not the least of which are document review and document production, to name a few.
New technology and innovation are at the forefront of the rapidly changing practice of law. Our interactions and decisions—both in and out of the office—are constantly being shaped by the technology available to us. Yet if you’ve been accustomed to relying on technology for most of your adult life, you’ve probably never spent the time to consider important tech questions that lawyers should know the answer to. In fact, doing so might be your ethical duty.
Comment 8 to ABA Model Rule 1.1 suggests lawyers keep up with the changing times: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” While the Comment 8 to Rule 1.1 of the Texas Disciplinary Rules of Professional Conduct does not contain a similar suggestion regarding technology, it nevertheless seems a prudent idea.
This article will examine a few key technological concepts that lawyers are likely to encounter in their practice: metadata, encryption, and email security. The goal, of course, is to lay an educational foundation for these topics to better inform the interactions and decisions as a young lawyer.
In December 2016, the State Bar of Texas Professional Ethics Committee authored Opinion No. 665, which stated that a lawyer’s duty of competence requires that lawyers who use electronic documents understand that metadata is created, transmitted, and accessible in a variety of ways.
But what is “metadata” exactly? Metadata is hidden information contained in an electronic document about the document itself. In other words, it is “data about data.” Every time you create a new document or make an edit or change to an existing document, you are creating metadata. Some examples of metadata include the electronic document creator’s name, file properties, names of previous document authors, history of edits and revisions, and comments.
Metadata has become a litigated issue in the discovery context. Lawyers usually run into problems with it in two ways: either metadata has been inadvertently disclosed or it has been deleted or erased when it shouldn’t have been. See, e.g., Knoderer v. State Farm Lloyds, No. 06-13-00027-CV (Tex. App.—Texarkana Sept. 19, 2014, no pet.) (destruction of photographs and accompanying metadata). When dealing with electronic documents or other forms of technology, it is important to remember that you may not only be manipulating the document or technology’s data itself but also any underlying metadata.
Encryption is another technological advancement that secures data. It is the process of helping protect your data by using codes or passwords to scramble the data so that an unauthorized user or viewer cannot gain access. Without encryption, data that is transmitted could become available to a host of people—people who should not be able to access or see such data.
Encryption is typically broken down into two subsets: document encryption and transmission encryption. Transmission encryption involves a party (e.g., the lawyer) securing the method of communication between himself and another (e.g., the client). For example, in a web browser, the URL might start with “https”—a signal that communications are employing a secure web server. Another common method is the use of a virtual private network, or VPN. Likewise, documents themselves can be made secure by their file format, keys, passwords, or choice of software.
Why encrypt? In communicating fully and frankly with their attorney, clients have a reasonable expectation of confidentiality and privilege. Encryption strengthens the channels of communication between an attorney and a client so that sensitive information is protected and, if it falls into the wrong hands, is inaccessible to the reader.
Electronic communication via email has become almost second-nature. Chances are you probably don’t think twice about the multitude of things that can go wrong when you send an email. For starters, if you are on the sending end, your email simply may not arrive in the recipient’s inbox—a problem that plagues approximately 8-12 percent of email communications. On the receiving side, phishing emails create security threats. By disclosing information to a third party, you may compromise not only your personal computer but also your firm’s business network.
A possible remedy to the lack of security in email communications? Establishing an online client portal. As a business solution, a client portal is typically easy and affordable to set up, allowing for much safer exchange of information and documents. Regardless of the method of transmitting communications, security flaws likely exist. An attorney has the responsibility to diligently investigate his or her firm’s vendors to understand these technological drawbacks to minimize their effect on the practice of law.
These technology-related areas are but three examples of the many ways that technology impacts the practice of law. The common thread among them: privacy and security—both for the lawyer and the client. Understanding the basics not only arguably satisfies your duty of competence as a lawyer but also puts you in a better position to protect confidential information and communications.
Josh Fuller is an associate at Amy Stewart PC, where his practice is focused solely on representing corporate policyholders in both first- and third-party coverage matters. He can be contacted at firstname.lastname@example.org or (214) 379-8103.