The following article is authored by Jessica C. Engler and Clare Roubion. The article originally appeared in the October 2022 issue of For the Defense. The published article can also be accessed here.
Exceeding Client Expectations When The Law Is Uncertain And Evolving
The Internet and legal technology are here to stay, as are lawyer obligations to stay on top of the risks and rewards inherent in the technology they use. Since the American Bar Association incorporated the duty of technological competence into the comments to Model Rule 1.1, lawyers have been pushed—or in some cases, dragged— into the Information Age, where the duty of knowing to delete emails promising riches from foreign royalty is as routine as remembering claim accrual dates.
For some lawyers, technological competence goes further than safe Internet practices and requires some technology know-how to properly advise clients. Patent attorneys are the poster children of that obligation, but now data privacy and other tech-heavy or tech-growing practices are joining the fray. Keeping up with relevant technological advancements is demanding on its own, but it becomes all the more complicated when a lawyer is asked to advise on the legality around that technology or potential risks.
The United States’ data privacy laws are anything but settled. As of this writing, the U.S. has no comprehensive federal data privacy law. In that absence, states stepped in to fill the gaps. The 2022 legislative cycle was inundated with state data privacy legislation from over half of the U.S. states and territories, Connecticut and Utah joined California, Virginia, and Colorado in enacting comprehensive data protection laws that become effective in 2023, and a federal data privacy law meanders its way through committee and the House. The new state laws add to the patchwork of pre-existing state data breach notification laws, federal regulations directed towards specific industries, proposed federal rulemaking, and further legislative and executory lagniappe. While this flurry of activity makes data privacy law practice exciting, it also triggers lawyer ethics challenges.
Yet, these challenges are not unique to data privacy; rather, they are a concern of any attorney practicing in new or evolving areas, especially where the law is unable to keep pace with technological advancement. As an example, ownership issues surrounding nonfungible tokens (NFTs) are now common questions for intellectual property lawyers. Employment lawyers are counseling clients on discrimination and bias when using machine learning and artificial intelligence in hiring practices. Cannabis lawyers regularly navigate policy challenges in balancing the (il)legality of marijuana on state and federal levels. Each of these practice areas and many others require lawyers to think deeply about competence, their role as a lawyer, and recognizing when they have reached their limits.
The most fundamental duty that a lawyer owes to a client is the obligation to competently handle the client’s matter. (See generally RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 16(2) (2000); see also Ciolino, Dane S., LOUISIANA LEGAL ETHICS: STANDARDS AND COMMENTARY, 28 (2022).) Competent representation requires that the lawyer possess the “appropriate knowledge, skills, time, and professional qualifications” to handle a matter. (RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 16(2), cmt. d. (2000).) Generally, practitioners of the past could fulfill this responsibility by simply learning legal rules and procedures. But those days are long gone.
“Technological competence” is now a fundamental duty of practicing lawyers. (See ABA Commission on Ethics 20/20 Report 105 A, quoting ABA Formal Op. 477R (2017) (“[L]awyers necessarily need to understand basic features of technology.”)) Per the American Bar Association: “[t]o 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.” (MODEL RULES OF PROFESSIONAL CONDUCT, Rule 1.1, cmt. 8 (emphasis added).) Lawyers are thus expected to understand the substantive and procedural areas of the law, as well as maintain proficiency in the technology that they choose to utilize in their law practice (See ABA Formal Opinion 498 (Mar. 10, 2021); see e.g., ABA Formal Opinion 477R (May 22, 2017); ABA Formal Opinion 483 (Oct. 17, 2018).)
Several states have gone further than integrating the ABA comments into their state Rules of Professional Conduct. Numerous state bar associations issued their own affirming opinions of a lawyer’s technology competence obligation. (See, e.g., State Bar of California Formal Opinion No. 2015-193 (opining on technological competence in the context of e-discovery); State Bar of Michigan Opinion No. RI-381 (Feb. 21, 2020) (clarifying that lawyers “have ethical obligations to understand technology, including cybersecurity, take reasonable steps to implement cybersecurity measures, supervise lawyer and other firm personnel to ensure compliance with duties relating to cybersecurity, and timely notify clients in the event of a material data breach”).) Other states now mandate technology training for lawyers through CLE hours of approved technology programs. (See Florida Rules of Professional Conduct rule 6-10.3 (requiring that lawyers complete three CLE hours in approved technology programs every three years); see, e.g., 27 NCAC 1D, Sections .1500 and .1600 (detailing CLE rules and regulations); Joint Order of the Departments of the New York State Supreme Court, Appellate Division, (June 10, 2022) (requiring New York lawyers to obtain one hour of cybersecurity, privacy or data protection CLE effective Jan. 1, 2023).)
Lawyers who fail to adapt “as new technologies develop and then become integrated with the practice of law” face potentially grave consequences. (California Formal Opinion Interim No. 11-0004 (2014).) Legal malpractice claims may arise from technological failures, such as suffering security breaches disclosing confidential client information or a lawyer’s failure to properly monitor email communications in a way that causes harm to the client. Similarly, courts can sanction or professionally discipline lawyers for consistent failures to appropriately utilize technology required in their practice. (See State ex rel. Oklahoma Bar Association v. Oliver, 369 P.3d 1074 (OK 2016) (federal court suspending lawyer from practice after persistent failure to comply with bankruptcy court’s electronic pleading requirements); see also Fulton v. Livingston Fin., LLC, Case No. C15-0574JLR (W.D. Wash. Jul. 25, 2016) (federal court sanctioning defense lawyer for bringing a motion to compel in bad faith after concluding that the defense lawyer’s citation of case law analyzing an outdated version of the law was “inexcusable.”).) While a cautious lawyer may see these cases as a sign to return to typewriters and go off the grid, such lawyers may be left behind in favor of those who can “talk tech” with their clients and use technology to reduce costs. Sophisticated clients who depend on technology in every facet of their business expect lawyers to demonstrate technological competency and integrate into their processes with minimal learning curve. Legal Ethics practitioners have identified five broad “realms of technology competence reasonably necessary for many engagements.” (See Puiszus, Steven, Perspective: Technology Brings a New Definition of Competence, Bloomberg Law (Apr. 12, 2016) (available at https://news.bloomberglaw.com/business-and-practice/ perspective-technology-brings-a-newdefinition-of-competency).) These areas include (1) cybersecurity or protecting clients’ electronically stored information; (2) electronic discovery; (3) implementing technology to run their practice which, in turn, automates tasks and saves clients’ money; (4) understanding the technology the client uses to design and manufacture products or offer services; (5) using technology in the courtroom or in meetings to present information. Id. Strategic and effective lawyers should view these skills as more than the minimum requirements of competence. Rather, lawyers who strive to provide exceptional, high-quality legal representation must implement these measures to stay competitive.
Scope of Representation and Allocation of Authority
Lawyers want to solve problems for their clients, anticipate their needs, and project an attitude of enthusiastic cooperation. The zeal to be indispensable for a client can at times blur the line on what the scope of a lawyer’s representation comprises. And there are many times where it is appropriate—if not mandatory—for a lawyer to say, “that is not in my representation scope” or “that is your decision, not mine.”
An obvious instance is when a lawyer is counseling a client on possible outcomes from illegal or morally questionable activity. A lawyer is prohibited from knowingly helping a client commit a crime or perpetrate a fraud. (See MODEL RULES OF PROFESSIONAL CONDUCT, R. 1.2(d).) A lawyer may, however, “discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” (See MODEL RULES OF PROFESSIONAL CONDUCT, R. 1.2(d).) Importantly, this rule “does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct.” (See Model Rules of Professional Conduct, r. 1.2(d), cmt. 9.)
Practitioners can struggle to discern the difference between facilitating unlawful conduct and providing permissible legal advice. For instance, with the new comprehensive state laws coming into effect in 2023, a client located outside of those states who, due to sales or other contacts, has sufficient ties to the state to require compliance may press an attorney on whether they can get away with not being compliant based on the likelihood of enforcement. A traditional reading of Rule 1.2(d) would permit a lawyer to “passively discuss and explain to a client the consequences of a proposed course of conduct irrespective of what the client does with the information or how she acts on it.” (Sam Kamin & Eli Wald, “Marijuana Lawyers: Outlaws or Crusaders”, 91 Or. L. Rev, 869, 902 (2013).) A lawyer would be prohibited, however, from taking “any active action on behalf of a client when she knows the conduct in question is criminal.” Id. Under these circumstances, prohibited activity would include “drafting documents, representing the client, negotiating on her behalf, or offering any kind of legal services related to the conduct beyond discussing their consequences with the client.” (Id.; see also ABA Formal Opinion 491 (2020) (opining that a lawyer’s knowledge can be inferred from the circumstances, including a lawyer’s willful blindness or conscious avoidance of the facts).)
Important policy and practical considerations weigh in favor of interpreting Rule 1.2(d) in a manner which focuses on a lawyer’s intent to assist or encourage the client in the prohibited conduct rather than focusing on the lawyer’s knowledge of whether the conduct in question is criminal or fraudulent. (See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 94(2); see also id., cmt. (a) (clarifying that “counseling” and “assisting” the client refers to providing advice or professional services “with the intent of facilitating or encouraging the client’s action.”).) Access to independent counsel who help clients navigate emerging or uncertain areas of law is a fundamental element of the American system of government. (See Kamin, 91 Or. L. Rev. at 905.) Moreover, lawyers acting as advocates for their client’s interests are often the change agents which establish new rights, vindicate historically deprived rights, or those withheld by bad faith state and federal regulators. (See id.) For these reasons, a broad interpretation of Rule 1.2 facilitates a client’s meaningful access to lawyers when the lawyer does not harbor an intent to assist or encourage the client in the prohibited conduct, even when the client’s conduct is questionable.
Lawyer as an Advisor
Strategic and competitive lawyers providing high-quality representation counsel clients beyond the conventional application of facts to existing laws. Indeed, lawyers on the cutting edge may include in their advice important additional considerations, such as “moral, economic, social and political factors, that may be relevant to the client’s situation.” (See MODEL RULE OF PROFESSIONAL CONDUCT, R. 2.1.) Although the rules employ the permissive language of “may” in the text of Rule 2.1, (see MODEL RULE OF PROFESSIONAL CONDUCT, R. 2.1,) the comments to the Model Rules and other secondary sources “imply that a lawyer’s general duties to provide competent representation and to communicate with his client may require nonlegal counseling in certain instances.” (See Gantt, Larry O. Natt, “More than Lawyers: The Legal and Ethical Implications of Counseling Clients on Nonlegal Considerations,” 18 GEO. J. LEGAL ETHICS 365, 374-375 (2005); see e.g., MODEL RULE OF PROFESSIONAL CONDUCT R. 2.1, cmt. 2-3 (“Purely technical legal advice, therefore, can sometimes be inadequate…”); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 94, cmt. h (“A lawyer’s advice on significant nonlegal aspects of a matter may be particularly appropriate when the client reasonably appears to be unaware of such considerations or their importance or when it should be apparent that the client expects more than narrow legal counsel. A lawyer is required to provide such assistance when necessary. . .”).)
Considering whether and when to provide counseling on nonlegal implications of a client’s course of conduct may turn on several factors. First, a lawyer should consider the sophistication of the client. (See Model Rule of Professional Conduct, r. 1.2, cmt. 3.) When a request for purely technical legal advice is “made by a client inexperienced in legal matters…the lawyer’s responsibility as advisor may include indicating that more may be involved than strictly legal considerations.” (Id.) Second, a lawyer should consider whether the client has an accurate understanding of cross-industry concerns or sectors. A broader viewpoint provided by the lawyer may contextualize the permissibility or advisability or a particular course of conduct. Finally, a lawyer should consider whether a client considering an ill-advised course of conduct wears the hypothetical “rose colored glasses.” A client may believe so wholeheartedly in their ideas that the client fails to appreciate how others will interpret or react to their actions. Similarly, a client may be caught in the throes of the “sunk cost fallacy,” where the time and financial investment into a plan of action is significant enough that the client is irrationally committed to continuing the ill-advised path. In such circumstances, a lawyer’s outside perspective on the client’s actions today, may prove invaluable in shaping the ripple effect the client’s actions months, years, and decades from now.
Constructing a good faith argument for the application of existing law to new scenarios requires an understanding of the client’s business, the applicable technology and its functionality, the way the client utilizes technology, and the impact of the technology on industry. Moreover, clear answers on how to apply the law to novel facts may be few and far between. For these reasons, lawyers should identify and use ambiguities in the existing legal framework to the client’s advantage while remaining honest with the client about the risks of doing so.
Technology’s rapid development presents unique challenges for those seeking to provide high quality competent legal advice, and the challenges are particularly heightened for lawyers practicing in emerging areas. To rise to this challenge, lawyers must first fully understand their client’s business, understand how and why the client utilizes technology, and the risks associate with that technology. Second, lawyers must develop and maintain competence in the “realms of technology competence reasonably necessary for many engagements.” (See Puiszus, Steven, Perspective: Technology Brings a New Definition of Competence, Bloomberg Law (Apr. 12, 2016) (available at https://news.bloomberglaw.com/ business-and-practice/perspective-technology-brings-a-new-definition-of-competency).) While this does include studying how technological developments change existing substance and procedure, this is not enough. Lawyers must explore how existing laws constrain or foster growth in industries reliant on new technologies. Lawyers must also delve into whether rapidly developing technologies are rendering existing laws obsolete. Finally, lawyers should look ahead by staying abreast of technological developments to anticipate how those changes will impact existing law. Lawyers must not only consider where the law is, but also where the law is going.
Understanding Your Client’s Business and How the Client Uses Technology: Applying a Holistic Approach to Research
Even where doubt exists, attorneys are expected to possess fundamental knowledge on relevant matters, which can include performing sufficient research to enable the attorney to make an informed recommendation for their client. (See, e.g., Village Nurseries, L.P. v. Greenbaum, 101 Cal. App.4th 26, 37, 101 Cal.Rptr.2d 555, 562 (2002).) When researching an unsettled or rapidly changing area of law, reviewing case law, hornbooks, and scholarly legal articles—if they are even available—is unlikely to go very far.
Keeping up with a technology-influenced practice area will require a multi-disciplinary research approach. A lawyer should first consider whether they understand the technology involved and how a client is or will be using it. If they do not, then it is their responsibility to seek out resources to inform or support their representation. For self-study, many resources are available to educate non-technical people on technology topics. One example is the Digital Data Flows Masterclass on Emerging Technologies, which is an education program designed to educate regulators and other non-technical persons on data-driven technologies to drive effective data protection law and policy. (See “Digital Data Flows Masterclass: Emerging Technologies”, Future of Privacy Forum (last accessed Sept. 1, 2022) (https://fpf.org/ classes/).) Lawyers can also turn to their clients, who are the experts on their business. When the technology is new or non-standard, clients typically understand that their lawyers are not IT professionals and are unstirred by 101-level questions about new technology. Lawyers can also reach out to their own internal IT departments or seek out other privacy attorneys to answer questions. Much like a personal injury lawyer would seek out expert opinions to evaluate the extent of a plaintiff’s soft tissue injuries, a lawyer advising on cutting edge technology should not be afraid to ask questions and seek out expert guidance and help.
Lawyers should also consider any cultural shifts influencing the marketplace or relevant consumer opinion and whether any practices are facing increasing public pushback. Selling user data and dark pattern creation are a good case study for this principle. Collecting and selling user data was nowhere near the hot button issue 10 years ago like it is today. In that time and for many years after, data sales were of mixed concern, with most frustration around sending users spam or whether companies were disclosing sensitive personal information like credit card numbers. Nowadays, due to increased reporting, a tech-savvy consumer base, and increased overseas regulation, consumers are pushing back against unnecessary data collection and undisclosed sales. Applying these considerations to a potential matter, a client may be located in a state that currently does not have comprehensive laws around data collection and could start or continue the practice legally; however, a comprehensive recommendation should include advice that the legality may soon expire or that the client may lose customers and revenue in response to the sharing.
Further, these new technologies may also raise moral or ethical concerns, even if it is not technically illegal. As the populace becomes more aware with how data sharing can impact their day-to-day lives, individuals are less open about sharing data where they do not derive a direct benefit from the sharing. Further, users will frequently cease use of a client’s product or services if users feel like they are a commodity instead of a valued customer. If the technology does not pass the “sniff test” and has an uncertain future in where the law is going, the client should be respectfully counseled about the risks.
Another consideration when evaluating rapidly changing practice areas is to not just consider the law today, but what the law may look like in the near future. Clients frequently turn to attorneys to advise on the legalities of new ventures or developments. What may be legal now could be restricted or restrained in unprofitable ways by the time the project is complete, so an effective lawyer will consider whether upcoming possible changes in the law should influence the attorney’s advice. To do this, the lawyer should stay up to date on legal developments affecting their clients’ industries and locations through daily legal publications, listserv emails, client alert aggregators, and strategic CLE attendance.
Lawyers may also learn to anticipate changes in emerging areas of law by keying in on regulator awareness and regulator interest. For practitioners working on a state or local level, investing time in developing professional relationships with regulators can pay dividends in the future. Lawyers gain valuable insights into what regulators and enforcement agencies care about, where the lawyer’s client can push the boundaries, and—importantly—which categories of client conduct will catch the enforcement agencies’ eye. Developing business relationships with the policymakers and regulators on a federal level may be more challenging for lawyers beginning to devolve into emerging areas of law. Lawyers concerned with predicting changes on the federal level should monitor Congressional hearings, committee meetings, and reach out to the lawyers they already know to request introductions to the federal agencies and lobbyists in the field.
Ultimately, however, there may come a time where the lawyer recognizes that they are approaching unfamiliar territory, and the client’s timing demands do not allow for self-study to become competent. In those instances, a lawyer should be upfront with the client about the limitations, and—if available—offer a referral. Having a ready list of trusted attorneys to recommend streamlines the referral process, and clients are appreciative of a lawyer looking towards their best interests. Sending a client to another lawyer offers the referring lawyer at least two added benefits. First, the lawyer can rest easy knowing that the client will receive top-notch counsel and representation from a competent lawyer well-informed in that area of the law. Second, the referring lawyer may request to remain on the matter as co-counsel to seize upon the opportunity to observe and learn from the well-informed lawyer. For lawyers navigating an emerging or technologically complex practice area, hands-on learning presents an excellent opportunity to develop competence.
Being on the cutting edge of a burgeoning practice area is exciting yet arduous. Lawyers that keep pace with rapid advancements and the associated ethical requirements can be valuable assets to their clients, who look to the lawyer to help make sense of the gray areas. By exceeding client expectations, these dynamic lawyers can look forward to a rewarding and prosperous legal career.