Washington Lawyer - December 2017 - 41
ASK THE ETHICS EXPERTS
FREE BUT NOT RISK FREE
By Hope C. Todd
I am launching my own law firm and considering
setting up a virtual office. But even if I settle on
physical office space, I plan to utilize mobile platforms
and technological solutions. I have noticed that apps
for lawyers are everywhere - seemingly offering the
opportunity to create a "phone office" that does everything: reminds, scans, retrieves client files, creates electronic signatures and
invoices, provides research, and even orders food to be delivered to my car.
Many apps have both free and paid versions of the same or very similar
products. Keeping my overhead down seems like a good business decision,
but is it an ethical one?
Embracing the use of technology in the practice of law
can greatly benefit lawyers and clients alike. However,
because it is a violation of D.C. Rule 1.6 (Confidentiality)
for a lawyer to knowingly use or reveal client confidences or secrets, a principal ethical consideration
when lawyers use technology is the protection of
client information. Therefore, before using any application, free or paid
versions, the lawyer must read the vendor's "terms of service." Service terms
that provide that the vendor will "own" the user's information and/or has a
right to view, use, or mine that information is an immediate red flag. Many "for
pay" versions, even relatively low-cost ones, afford better confidentiality protections to lawyers without claims of vendor information ownership.
Of course, not all free apps are worrisome, depending on intended use. A free
scanning app, for example, used for scanning blank forms, only becomes an
ethical problem when the scanned document is populated with Rule 1.6protected information. There is also no ethical impediment to curbside taco
delivery. That said, when client confidences and secrets are involved, free in
some instances may be costly. For more information and resources on mobile
apps and technology solutions in the practice of law, contact the D.C. Bar
Practice Management Advisory Service at firstname.lastname@example.org.
D.C. Bar Legal Ethics counsel Hope C. Todd, Saul Jay Singer, and Erika Stillabower
are available for inquiries at email@example.com.
To access the D.C. Rules of Professional Conduct, visit
dcbar.org, keywords: D.C. Rules.