Management of the Common Risks of E-Lawyering
It's hard to deny that technology is a vital part of any law practice. While technology has made the practice of law far easier, it has also added a layer of risk. In order to manage this risk, it is very important for all attorneys to protect themselves from common "e-lawyering" mistakes.
E-lawyering includes any number of activities, from the common, e-mail, to the cutting-edge, blogs. Each activity has inherent risks which must be considered before the attorney engages in the activity.
Fortunately, as long as attorneys are knowledgeable about these risks, managing them is relatively easy.
Considering the variety of activities involved in e-lawyering, it is impossible to assess the risk of each activity individually. Indeed, the risk of any "exotic" activities should be discussed with you insurance agent. Instead, this article focuses on two common activities and the easy risk-management of each activity.
Anyone with an online presence, website to informal blog, must be careful about unintended client engagements. Your website may include a form or e-mail address inviting potential clients to contact you.
Clients may send you confidential information when completing these forms, and may expect that the completion of the form creates an attorney-client relationship. The perceived creation of the attorney-client relationship is very dangerous as it does not give you the chance to screen the client.
In order to manage this risk, you must use conspicuous disclaimers. Your website, blog and newsletter must include a disclaimer stating that your online activities are not the basis for an attorney-client relationship and that any such relationship can only be created via an off-line client intake procedure.
The copious use of electronic communications is common in law practice. In dealing with e-mail special care should be taken both when sending the e-mail and saving the communication.
When sending the e-mail, with auto-complete of e-mail addresses, it is easy to mis-direct a message. Every attorney has a story about accidentally sending an e-mail to opposing counsel. Expect that you will make a mistake, but prepare for it by including a signature paragraph regarding the misdirection and confidentiality of the message.
Sample language may include: "The information in this E-mail message, and any files transmitted with it, is confidential and may be legally privileged. It is intended only for the use of the individual(s) named above. If you are the intended recipient, be aware that your use of any confidential or personal information may be restricted by state and federal privacy laws. If you, the reader of this message, are not the intended recipient, you are hereby notified that you should not further disseminate, distribute, or forward this E-mail message. If you have received this E-mail in error, please notify the sender and delete the material from any computer. Thank you."
In addition to the actual message, care should also be taken when sending attachments with e-mail messages. Attached documents often contain metadata.
Metadata is hidden information about the file--roughly, "data about the data". As more people have learned about the use of metadata, lawyers face the danger of counsel or clients viewing their changes.
In discussing the ethics of searching for metadata, the American Bar Association's Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 06-442 (Aug. 5, 2006), stating that model ethics rules "do not contain any specific prohibition against a lawyer's reviewing and using embedded information in electronic documents".
In order to prevent the mis-use of metadata, a lawyer may choose to use programs that strip metadata or, in cases where the document is not being edited, the document may be sent as a pdf.
A second risk in dealing with e-mail is the saving and storage of messages. The ease of e-mail may create the impression that an attorney does not have the same records management obligations with e-mail as with paper communications. However, proper records management of electronic documents is crucial and special note must be taken of e-discovery obligations. You can find out more about this topic by visiting FindLaw's E-Discovery Center.
In reading about the risks of e-lawyering, no attorney should be discouraged from using technology. Rather, every attorney should attempt to keep up with new developments and risks when using technology. Awareness of risks allows each attorney to easily manage these risks without spending undue time worrying about the malpractice implications of each activity.