Attorney Ethics and Automated Technology

Attorney Ethics and Automated Technology

Paul T. Freeman

Electronic vs Automated

INPUT OUTPUT

ElectronicInput Equals Output

ElectronicInput Equals Output

MS WordEmail

eFiling

INPUT OUTPUT

AutomatedLow Input/High Output

AutomatedLow Input/High Output

Mail MergeProDoc

HCDC Docket Reminder

OUTPUTINPUT

AutomatedHigh Input/Low Output

AutomatedHigh Input/Low Output

Lexis/NexisWestlaw

eDiscovery

AutomatedHigh Input/Low Output

JudicataBeagle

Lex Machina

Black Box

OUTPUTINPUT ?

ALGORITHM

Using the Outputas part of strategy/work product

INPUT ? OUTPUT

EXPERIENCE

FACTS

LAW

RESULT

ABA Model Rulesof Professional Conduct

?Rule 1.1 Comment 8…a lawyer should keep abreast of

changes in the law and its practice, including the benefits and risks associated with relevant technology…

CompetenceTDRPC 1.01

(a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence…

CompetenceBenefit• Easier to learn areas of law

through research

Risk• Incompetent use of automated

technology

Scope & Objectives of Representation

TDRPC 1.02(a) …a lawyer shall abide by a client’s

decisions:(1) concerning the objectives and

general methods of representation;

Scope & Objectives of Representation

Benefit• Automated technology can save

money, help achieve outcome

Risk• The client can choose not to

have automated systems used

ConfidentialityTDRPC 1.05

(b) …a lawyer shall not knowingly:(1) reveal confidential information of

a client or a former client…

ConfidentialityBenefit• Automation can actually mean

fewer eyes on the information

Risk• Vendor’s privacy policy, security

breach, PATRIOT Act, NSA

AdvisorTDRPC 2.01

In advising or otherwise representing a client, a lawyer shall exercise independent professional judgement and render candid advice.

AdvisorBenefit• Automated systems can be more

objective in predicting outcome

Risk• Rule comment says advice

shouldn’t be purely technical

Meritorious Claims & Contentions

TDRPC 3.01A lawyer shall not bring or defend a

proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes there is a basis for doing so that is not frivolous.

Meritorious Claims & Contentions

Benefit• Objective automated system can

provide solid ground for claim

Risk• Filing suits en mass w/automated

system not meritorious

Candor Toward the Tribunal

TDRPC 3.03(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

Candor Toward the TribunalBenefit• Reliable systems can reveal law

and facts more efficiently

Risk• The law and facts uncovered

may or may not be favorable

Responsibilities Regarding NonlawyerAssistants

TDRPC 5.03(a) a lawyer having direct supervisory

authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer…

Responsibilities Regarding NonlawyerAssistantsBenefit• Automated systems can be

consistently reliable

Risk• You may not be entirely aware of

what’s going on under the hood

CasesWilliam A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134

(S.D.N.Y. 2009) – (“[eDiscovery] must be quality control tested to assure accuracy in retrieval and elimination of ‘false positives.’”)

Mosley v. Conte, 2010-32424 Sup Ct, NY County – (“[Counsel] should be able ‘to explain the rationale for the method chosen to the court’ and ‘demonstrate that it

is appropriate for the task.’”) quoting William A. Gross Constr. Assocs.

In re Weekley Homes, L.P., 295 S.W.3d 309, 52 Tex.Sup.Ct.J. 1231 (Tex. 2009) –(“But it is a simple matter to request emails that have been deleted; knowledge as to the particular method or means of retrieving them is not necessary at the

requesting stage of discovery”)

ArticlesTimothy J. Toohey, Beyond Technophobia: Lawyers’ Ethical and Legal

Obligations to Monitor Evolving Technology and Security Risks, 21 Rich. J.L. & Tech. 9 (2015),

http://jolt.richmond.edu/v21i3/article9.pdf

Karin S. Jenson, Coleman W. Watson, and James A. Sherer, Ethics, Technology, and Attorney Competence,

http://www.law.georgetown.edu/cle/materials/eDiscovery/2014/frimorndocs/EthicsIneDiscoveryBakerHostetler.pdf

Helpful ResourcesABA Legal Technology Resources

http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis.html

Law Technology Todayhttp://www.lawtechnologytoday.org/

Law Technology Nowhttp://legaltalknetwork.com/podcasts/law-technology-now/

WEBSITEFreemanDigitalLaw.com

[email protected]