Law Firms and Electronic Communication Dealing with Cyberspace

Law Firms and Electronic Communication Dealing with Cyberspace

Annette Slaughter
LES.330.DISB1T01.SP2011
February 23, 2011

Abstract

In the world of litigation, it is a difficult enough task to wade through all the laws, acts and statutes that compose constitutional law. With the introduction of new technologies dealing with cyberspace, one of the issues laws firms have to contend with electronic communication.

Electronic communication encompasses the areas of document review or electronic discovery, electronic file formatting, file retention, transmission, and content management. This is not a technical matter that can be simply left to computer professionals or law office support staff; it requires the active participation of the attorneys as well.

While cyberspace continues to grow, the options available to police cyberspace are not in place, making the tasks of law firms even more difficult. Now along with intellectual property cases, contract resolution and fraud cases, attorneys using electronic communication to carry out their work must recognize the importance of security and privacy issues. Attorneys have to ensure the ‘legwork’ done to gather electronic evidence for a case does not violate the attorney-client privilege, the client’s confidentiality or breach the protocol in place for gathering evidence, all on an electronic platform.

Attorneys have professional obligations that are expected under the Model Code or Model Rules. Those who fail to recognize and fulfill those obligations will hamper their ability to practice law effectively, risk alienating their clients, and face possible professional actions under the version of the Model Code or Model Rules in their jurisdiction.

Law Firms and Electronic Communication Dealing With Cyberspace

Today’s law firms are often required to convert, create, store and transmit legal documents and other components of a client’s file electronically which brings concerns regarding electronic communication security and content management. When traditional paper files are converted to electronic format, there is a preference of saving the file in native or raw format because of the ease of opening a document with multiple applications and toolkits that support this format. There are also protocols attorneys should follow as listed in Ethics Opinions 2010-02 for proper procedure for retention, storage, ownership, production and destruction of client files. While it is wise to keep an electronic and traditional paper copy of documents, it can be quite costly storing data in both formats. Some documents such as wills are classified as category 1 documents, must also be retained in traditional paper format. Documents classified as category 2 such as photographs and memoranda can be destroyed after being converted to electronic format (Ethics Opinion 2010-02, p.13). In electronic communications, attorneys must ensure that measures are in place to protect the confidentiality, security and integrity of the documents and the process must be at least as secure as that required of traditional paper files (Ethic Opinions, 2010-02), although unlike paper files, electronic files must be ‘backed up’ on another computer or media in case of a computer crash, the original file becomes corrupted, or the attorney’s office is damaged. One option that attorneys are using for data backup is cloud computing. Cloud computing is a new technology for data storage hosted by a third party vendor. A law firm would hire a third party vendor to host the data instead of keeping the data on the law firm’s servers. While cloud computing would allow an attorney to access client’s files from almost anywhere in the world, the issue of confidentiality comes to the forefront since the sensitive data is out of the attorney’s hands and being controlled by the third party host. There is also the threat of the host server being hacked and the data compromised. Electronic communication also includes document review or electronic discovery. Electronic discovery (e-discovery) deals with the exchange of information in electronic format. Examples of the types of data included in e-discovery are email, instant messaging chats, documents, accounting databases, websites and any other electronically stored information that could be relevant evidence in a law suit (Wikipedia, 2011). Many firms today have an in-house e-discovery team, consisting of attorneys, and IT professionals, as attorneys are not necessarily IT experts. Some smaller firms may use software such as EnCase or Acuity for their e-discovery tasks. Some firms prefer to outsource to third parties such as computer forensic investigation professionals to gather e-discovery evidence and present the evidence to the court as an expert witness. Great care must be taken with e-discovery evidence; the responsible parties must follow specific protocol for retrieval, storage and presentation of the evidence. Expert witnesses should be credible and exhibit integrity when appearing before the court. Any discrepancies or doubts can have evidence picked apart and thrown out, causing a law firm to lose a case. Security is a major concern when dealing with electronic communication. Sending correspondence over the Internet, particularly via email should be encrypted especially when sending sensitive data to prevent inadvertent disclosure. There are some drawbacks that may have hindered this approach for some law firms though. First, the sender and all receiving parties must use the same software, and the keys on the sender and recipients’ keyboards must be programmed correctly to properly decode and read the correspondence. Another hindrance was the cost of encryption programs being so expensive and coupled with the taxing of a firm’s computer network because of the large amount of memory used to operate encryption programs, lead some firms to find the encryption software not cost effective for the value. This is changing with the addition of encryption software being built into operating systems such as Microsoft’s Windows XP and Vista and programs add-ons are available for popular software packages such as Microsoft’s Office Suite. Another security issue with electronic communication is attorney-client privilege and client confidentiality. It is an attorney’s responsibility to maintain confidentiality of information relating to representation. Failure to maintain confidentiality can bring disciplinary actions against an attorney and a malpractice claim if the breach leads to damages the client or the attorney-client privilege. To protect themselves, some bar associations recommend attorneys always get the client’s consent before sending email although there is no formal opinion by the courts declaring email as a reasonable and acceptable means of communication. Content management is another area when new technologies are coming into play within law firms. Instead of retaining a slew of administrative or support staff, content management software or services can reduce the overall cost of staffing. Attorneys within a firm often collaborate on documents, such as contracts by reviewing them for clarity and repetitiveness of information. In the past, hard copies of these documents contained white out marks and markups in pen (edocmagazine, 2008). Content management software can assist attorneys and paralegals with this task. Content management software such as eCopy allows a document to be scanned and converted into a searchable PDF file, and then stores the document in a central repository.
With the emergence of new technologies in cyberspace, law firms have electronic calendars and docket management software to never miss a court appearance, content management software to electronically search through a document for interpretation and email for the electronic transmission of data pertinent to cases from one party to another with encryption. The ability to handle these tasks detail the strides made towards the almost paperless office and autonomy, but there are serious concerns surrounding security. Although there are laws, written opinions and recommendations by state bar associations on the protocols to be followed by the use of electronic communication, cyberspace does not have enough regulation to ensure that a client’s files stored on a third party’s host server will not be compromised nor can a law firm ensure that their network will not get hacked into. What law firms can do is to practice known and trusted security and privacy measures to protect their client data and their reputation to the best of their ability.

Bibliography

Ethics Opinions 2010-02. Retrieved February 16, 2011, from www.alabar.org/ogc/PDF/2010-02.pdf

FYI: Playing it Safe with Encryption. Retrieved February 19, 2011, from http://www.americanbar.org/groups/departments_offices/legal_technology_resources/ resources/law_office_technology/FYI_Playing_it_safe.html

Harney, J. (2010). Making a Case for Content Management. edocmagazine.com, Retrieved February 15, 2011 from EBSCOhost

Kass, A. (2008). Legal service firms make case. Crain’s Cleveland Business, 29(35), 7. Retrieved February 15, 2011 from EBSCOhost.

Krause, J. (2008). Fear of the ‘Native’. ABA Journal, 94(1), 59. Retrieved February 15, 2011 from EBSCOhost.

Maleske, M. (2010). The Modern Office. insidecounsel.com, Retrieved February 15, 2011 from EBSCOhost.

Perkins, M. (2010). Emerging Ethical Issues in the 21st Century. Retrieved February 16, 2011 from www.perkinsfirm.com/ethics_in_cyberspace.html

Electronic discovery. Retrieved February 16, 2011, from www.wikipedia.com

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