Embed Size (px)
Citation preview
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/
