Legal Ethics, Technology

Real Men Don't Type

Think you're knowledgeable about law and technology? See if you can answer these questions (by legal tech columnist Jeff Bennion).

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In what will forever be known as one of the toughest hand-offs ever, Robert Mueller was sworn in as the Director of the FBI on September 4, 2001. His predecessor was Louis Freeh, who was FBI Director from 1993 through 2001. In retrospect, there can be a lot of fingers that can be pointed at the course-of-history-altering events that happened right after Freeh left, but the important thing for us is to look at how similar our situation, as lawyers, is to what their situation was 14 years ago, and look at what we can do about it.

Real Men Don’t Type

Ronald Kessler wrote a series of books about the FBI. In one of them, The Bureau: The Secret History of the FBI (affiliate link), Kessler noted that Freeh did not like computers. When he first took office, the first thing he did was get rid of the computer in his office. He refused to allocate funds to technology, and the result was that the FBI computers were so old and bad that they could not even be donated to charity. Agents were giving out their personal e-mail addresses to get a hold of witnesses and photos of terrorist suspects were being sent by express mail instead of e-mail because the FBI system was so antiquated that it was unusable.

In an article from the Los Angeles Times, they quote an FBI agent from that time:

And, perhaps most critical, the bureau experienced cultural resistance to letting machines take the place of solid, old-fashioned police work, an attitude shared by many top officials and street agents alike.

As one veteran agent said, the FBI has been dominated by an old-school attitude that “real men don’t type. The only thing a real agent needs is a notebook, a pen and gun, and with those three things you can conquer the world. That was the mind-set for a long time, and the computer revolution just passed us by because of it.”

This is not a “hindsight is 20/20 thing” either. Take a look at this headline from May 2001:

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By “take responsibility,” he means leave immediately and write a book (affiliate link) about what a good job he did.

The Legal Realm Is Only Slightly Better

The macho culture is present in law firms also. Time and again, I meet the old “the only thing a ‘real’ attorney needs is a legal-sized yellow pad, a power tie, and a Westlaw password” attorneys. While our failures to adapt to the times might not cause wars and the deaths of tens of thousands, they could very well lead to unknowingly committing ethical violations by exposure of confidential client data or misunderstanding your state bar’s social media policy and how it relates to solicitation and advertising. It could mean ineffectively serving our clients by either billing for unnecessary hours by doing things inefficiently, or by failing to take advantage of the tools we have at our disposal to win our clients’ cases.

See if you can answer these questions:

  • Does your state bar have a policy on cloud storage of confidential client files? Not all of them do.
  • If it does, what is the standard of care that the attorneys are held to in securing private data in the cloud? Don’t just say “reasonable care” because you clicked on that link (spoilers for the lazy – it’s reasonable care for all states). What does that mean?
  • When posting on social media, is posting to your friends about a case you just won subject to state bar oversight? What about when somoene you don’t know endorses you on LinkedIn and you do not immediately remove the endorsement?
  • If you access work e-mails on your phone, what level of security do you need to have to unlock your phone to access those e-mails? Is it different if HIPAA information or Social Security numbers are in documents attached to your e-mails?
  • Does your state require an electronic conflict-check database?
  • Does your state allow for off-site access to client files, and if so, what are the steps you are required to take to ensure the data is protected?
  • Does your firm have private wifi? If a guest of the firm (or opposing counsel at a deposition) plugs an Ethernet cable into the outlet in your conference room, what safeguards do you have to ensure he or she does not have access to your servers?
  • When you exchange drafts of documents, do you save them to PDF before so that people can’t make slight changes that you won’t notice? That’s a trick question because it works only on people who don’t know what the Content Editing button does in Adobe Acrobat.
  • What about when you are in trial — are you aware of the study on the Effects of a Visual Technology on Mock Juror Decision Making that showed that using technology in the courtroom will drastically affect jurors’ perception of liability and perception of the presenting attorney’s credibility?
  • What tool do you use to index all depo transcripts in a case and note areas for use at trial or for additional follow-up?

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The problem is two-fold: some attorneys don’t know the answer to these questions, and some attorneys don’t even think about them ever. Maybe the law changes slowly, but the practice of law is changing fast.

Jeff Bennion is a solo practitioner from San Diego. When not handling his own cases, he’s consulting lawyers on how to use technology to not be boring in trial or managing e-discovery projects in mass torts/complex litigation cases. If you want to be disappointed in a lack of posts, you can follow him on Twitter or on Facebook. If you have any ideas of things you want him to cover, email Jeff at jeff@trial.technology.

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