Jump to Navigation | Jump to Content
American Bar Association

 

Attorneys, Beware! Six Technology Traps to Avoid

By John F. O'Rourke and Trevor Roberts – July 30, 2015


For many lawyers, it is hard to even remember what practicing law was like before the advent of the Internet and smartphones. In fact, younger attorneys may have never had to handle a single case without the advantage of modern technology (gone are the days of searching racks of dusty legal tomes in a law library). But these innovations come at a price, for they bring with them new—previously non-existent—risks.  


While it is easier than ever before to conduct research and communicate with clients, it is also easier than ever before to turn a minor faux pas into a major disaster—perhaps with just a click of a mouse. Some areas involving the use of computers or online services may require an extra measure of caution. For when it comes to making mistakes with modern technology, prevention may be the only cure.


1. Refrain from late-night emails or texts. It is extremely important that attorneys exercise extra care when responding to any form of electronic messages. A text sent in anger, when one is tired, or by accidentally clicking “reply all” instead of “reply,” can have disastrous results! Unfortunately, it is becoming increasingly common for attorneys to have their own messages used as exhibits against them in court.


In the “good ol’ days” of snail mail, one at least had time to reflect and change one’s mind before a letter was picked up by a postal carrier.  Now, it is very easy to just punch out a quick response and click “send” without fully appreciating the fact that, in so doing, one has just created a permanent record. Fortunately, there are ways to recall such emails, but the process may not be as simple as it sounds.


The recall message feature of Outlook, for example, requires a Microsoft Exchange server account, and it has a short window of opportunity. Thus, you do not want to wait until the moment you need this function to learn how to use it. Further, this feature is not 100 percent reliable and you can’t recall messages sent outside your organization. Gmail has similarly added an “Undo send” feature, but this also requires immediate action in order to work.


Simply put, you will be much better off not sending that regrettable email in the first place. We therefore offer this simple suggestion: Put a note on the edge of your computer screen that says, “COUNT TO TEN BEFORE YOU SEND!”


2. Use a password-management program. Recent data breaches, from the Heartbleed bug to the hacking of the White House, demonstrate the increasing importance of online security.  And when it comes to passwords, the longer and more complex a password is, the more difficult it will be for cyber criminals to crack. The problem, of course, is that the harder it is to guess one’s login info, the harder it is to remember as well.  


If you have an eidetic memory, a 16-character code with random letters, numbers, and symbols is a good start, but experts also recommend using a different password for each of one’s online accounts. Unfortunately, very few attorneys employ such protective measures.  Instead, most of us keep track of passwords by saving them in a web browser, storing them on a smartphone or laptop, or simply by writing them on sticky notes and affixing them to our monitors.


None of these methods is very secure. Web browsers generally offer insufficient encryption, mobile devices can be lost or stolen, and notes attached to a monitor or desk can be seen by anyone in the office, including co-workers, visitors, or even the night-time cleaning crew. A safer idea is to use a password management system, such as LastPass or Dashlane. Such programs allow for one to import all of one’s login information and store it in a single vault.


Then, one need only remember a single, sufficiently complex password in order to be able to access all of one’s various logins. Unfortunately, this also means that if you forget this one password, you may be locked out of all of your accounts. More importantly, if a hacker gets hold of this one password, he or she will effectively have a skeleton key that can be used to open the doors to your every secure account.


3. Caution with the cloud. Cloud storage has tremendous advantages because it allows almost unlimited space to store files, and it allows users to access this stored data from just about anywhere there is an Internet connection. Cloud storage also allows for colleagues to easily collaborate on documents, presentations and other projects. Providers include OneDrive, Dropbox, and Google Drive.


But when it comes to storing a client’s confidential information, attorneys should exercise great care when choosing a cloud-based file-sharing provider. Only premium-quality storage services—not the freebies—will likely offer sufficient encryption and overall security. Attorneys should seek assurance from the provider that confidentiality is guaranteed. Attorneys should also get the client’s prior written consent to store his or her personal case data in the cloud.


Remember, the protection of information in the cloud is nascent and may be subject to risks.


4. When printing documents, always “CBS”—Check Before Stapling! This tip is not about computers or the Internet, it is about another—often underappreciated—electronic device: the office printer. Modern printers are vital to any law office. They are multifunctional equipment that boast amazing technology, allowing staff to quickly print voluminous documents from a single machine. But this “convenience” can lead to catastrophe if one accidentally picks up someone else’s print job without realizing it.


The worst such situation is where confidential information, or attorney work product, is unintentionally attached to the back a document and then sent to opposing counsel, thereby resulting in inadvertent disclosure. Such a scenario is covered by the ABA Model Rule of Professional Conduct 4.4, “Respect for Rights of Third Persons,” which was amended in 2002 with the addition of Rule 4.4 (b).


Rule 4.4 (b) states that “a lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Note that this rule does not require the receiving lawyer to refrain from examining the materials—or even to abide by the instructions of the sending lawyer—it simply says to “notify” the sender. 


5. Don’t get “IDKed” on LinkedIn! If, when attempting to build up the number of your LinkedIn connections, you send invitations to too many strangers, you risk having your privileges restricted. If just five people respond to your invitations with “I Don’t Know This Person,” you will be “IDKed” by LinkedIn. You will then be prevented from inviting members to connect with you unless you know their email address.


If this happens, and you then stumble across an old colleague, client or classmate on LinkedIn, you will probably not be able to contact them. However, you can usually get your full privileges restored by simply sending a request to customer service through “Contact Us,” which is located under the “Help Center.” You can navigate to the Help Center by clicking on your picture in the top right on the LinkedIn page.


6. Be friendly—but not too friendly—on Facebook! Attorneys need to exercise more prudence than the average Facebook user because ethics and advertising rules may apply. This is due to the fact that many of an attorney’s “friends” may actually be strangers who are not lawyers, relatives, or true amigos.  Therefore, lawyers should avoid posting misleading content that guarantees results or that contains confidential information.


Attorneys must also exercise caution when sending out a friend request as such direct contact may violate ethics rules, especially if the other party is a judge or a represented litigant.  Further, lawyers must remember that a communication on Facebook is not limited to one’s home state. So one must be careful not to use social media in any way that could be construed by other jurisdictions as the unauthorized practice of law.


John F. O'Rourke and Trevor Roberts are of counsel with WHGC, P.L.C., in Newport Beach, California.


 
Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).