Tuesday, October 19, 2010

ABA 20/20 Commission Hearing on Client Confidentiality and Lawyers' Use of Technology (Part 2)

As mentioned previously [see part 1], the ABA Commission recently held a hearing on the issue of Client Confidentiality and Lawyers' Use of Technology. A PDF of submitted testimony and exhibits speakers testifying at the hearing, see the ABA web site. Here is a brief summary of other issues raised by participants:
  • Todd Flaming, a partner at Schopf & Weiss, discussed what form of action he thought appropriate for the Commission to take, given the changes technology has brought to information management by law firms. Mr. Flaming described the change from all paper to almost all electronic data handling practices: "In the history of the world, this change happened in the blink of an eye. And the change seems to be accelerating." He advocated for the creation of a centralized, constantly-updated online library which could provide guidance, advice and standards information regarding lawyer and law firm use of technology. In particular, he called out the need to educate lawyers about the implications of new technologies, particularly non-technical lawyers. (Or, as he concisely put it, those who do not "speak Klingon.")
  • A representative from Clio provided specific recommendations for security and confidentiality standards which should be followed by "cloud" service providers -- companies that provide web-based, hosted services that story law firm information (e.g. email or document management).
  • Representatives from Total Attorneys and the Legal Marketing Association addressed the issue of lawyer advertising and use of social media. Today new forms of advertising (like search engine-managed text ads, referral programs and testimonial sites) redefine what is and is not "advertising" according to current rules. Speakers suggested that the ABA should make rules more flexible to take into account new advertising and new communication technologies, and the corresponding growth in layperson understanding of these media: "More generally, LMA urges the Commission to propose guidelines and amendments to the Model Rules that are balanced between protecting consumers of legal services, and allowing the legal profession to communicate truthfully about the scope and availability of legal services."

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