The current edition of GPSolo magazine focuses on Security and Ethics. (Vol. 20, No. 4, June 2003) One intriguing article looks into the ethical and liability risks from not using new technology in one’s law practice. Written by Diane Karpman, a California legal ethics expert, the June ’03 article is entitled Keep Up or Face Peril. In it, Karpman discusses whether the availability and widespread use of computer technology will affect malpractice and negligence liability by changing the required standard of care. She also muses over the possible excessiveness of fees charged by a lawyer who does “book research” and takes significantly longer to complete a project, resulting in higher hourly fees. Here are some of Karpman’s thoughts [emphasis added]: Internet accessibility is about to profoundly change our research obligations, since vast amounts of information are readily available to everyone, including courts and clients. The information revolution is a double-edged sword, providing the power to decimate our opponents but also making lawyers targets for failing to take advantage of the bounty of information. “If the average attorney would have found and used that [important] case, then the failure to do so is below average and therefore below the ordinary standard in the community. Falling below the average, typical, ordinary standard in the community opens the door to charges of professional negligence. In this case liability would not be for failing to use technology, but for failing to find the information that other lawyers could find and use for their clients’ benefit.” Once it was common to obtain specific consent from a client in the fee agreement to employ computer-assisted research, which generally required an additional fee. Perhaps now the opposite should occur: Clients are not permitted to preapprove or waive negligence or incompetence, but if we choose not to use computer research, our clients should possibly be notified. “Computer-assisted legal research is faster, more complete, and more efficient. . . . . Someday lawyers may have to obtain client approval to use books, which are far more time consuming and inefficient. Of course, you don’t need your clients’ approval to be inefficient. You just can’t charge them for it.” If the use of computer research engines makes the average attorney in the community capable of researching a particular issue in 1.5 hours, while without the computer it takes an attorney six hours to do the work, the potential for litigation with clients respecting fees increases significantly. “Once access to legal information was within the dominion and control of the profession. That is simply no longer true, since computers are ubiquitous. When a clear tune is coming from the bench and from clients, lawyers simply cannot ignore the music.” Supplement (7/22/03): For a thoughtful, opposing perspective, see Mark Tuft‘s article in the same issue of GPSolo, entitled A Lawyer’s Judgment Will Never Be Automated . Tuft makes some good points, arguing that “Just because technology provides greater efficiencies and may afford lawyers a competitive advantage does not mean that it is unethical not to use technology. It’s the quality of the legal work-not the speed at which it is done-that matters.” Tuft adds, “Competence as an ethical matter is based on the lawyer’s legal ability, not technical ability, and implies keeping abreast of new developments in law. Employing electronic research may be efficient, but if a lawyer is able to find the law and apply it correctly, the lawyer is acting competently regardless of how the information was obtained.” He adds: “Lawyers are ethically obligated to communicate with their clients. This means keeping clients reasonably informed about the status of their matters, consulting with clients about the means by which the clients’ objectives are to be accomplished, and promptly complying with reasonable requests for information.4 Modern technologies afford efficient means of communication, including e-mail, extranets, and other wireless and web-based systems. Which to use, however, is for lawyers and their clients to work out.” [emphasis added] I’m not sure that “technical ability” can be totally removed from the concept of competence. I agree about the need to keep the client informed and in the loop concerning the means used to meet objectives. I would add, however, that the communication must ensure that the client is told when using a particular research method may result in considerably higher hourly fees. Update (7/23/03): Tom Mighell at Inter Alia added his Comments this morning on this topic (click on Discussion in the right margin for Tom’s comment, and that of MyShingle.com‘s Carolyn Elefant), and expanded his thoughts in a posting of his own that is worth a peek. TVC Alert has also pointed to this posting and the resulting discussion. (Welcome to the legions of Inter Alia fans and avid TVC Alert readers pointed in this direction by Tom and Genie.)
July 21, 2003
An Obligation to Use Computer Research?
Competition & Ethics Issues of UPL Are on ABA Agenda in S.F.
If you’re going to the ABA Annual Meeting in San Francisco in August, consider attending the panel on “Competition and Ethical Issues in the Unauthorized Practice of Law Debate,” presented by the Antitrust Section and held Aug. 11th (2:00 PM). Click here to see the Section’s full agenda. Two of the panel’s four members represent strongly opposing views on the role of nonlawyers in real estate settlements and on the general use of the “definition of the practice of law” to restrict the provision of law-related services by nonlawyers. They are FTC General Counsel William E. Kovacic, and president-elect of the North Carolina State Bar, Dudley Humphrey. Humphrey chaired the Ad Hoc Committee of the Council of the North Carolina State Bar on Residential Real Estate Closings. The FTC and the Justice Department submitted a joint letter
We discussed these issues at length in our July 3, 2003 posting. and our July 1st posting. The advocacy efforts of the federal agencies (along with a slew of other commentors) helped convince the ABA task force to withdraw the proposed model definition of the practice of law. However, the agencies’ letter apparently had little effect on the resulting North Carolina ethics opinions, which were issued on Jan. 23, 2003. See Authorized Practice Advisory Opinion 2002-1.
For more background information on this topic, see the submission of Tom Lammert General Counsel, National Real Estate Information Services, to the FTC’s Public Workshop on the Possible Anticompetitive Efforts to Restrict Competition on the Internet (Oct., 2002), which is entitled State Regulation Impeding Competition on the Internet for Real Estate Settlement and Information Services. Also check out the recent Legal Times article by HALT’s Executive Director, Jim Turner, Lawyers vs. Nonlawyers.
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Thanks to Steve Covell at La-Legal annotated for adding us to his comprehensive Legal Beetle directory of “20,000” law-related sites.