20/20 Vision for All Lawyers' Future: The Ethical Duty to Stay Technically Competent

How many practicing lawyers today (at least those over the age of 40) studied metadata and data security in law school?

How many today can discuss the ethical aspects of those issues with the same level of knowledge as they would about conflicts of interest, or privilege questions?

Those skills, and more, are required to practice law, according to resolutions passed in early August by the American Bar Association (ABA) House of Delegates. At its annual meeting, the ABA approved a series of resolutions from its Commission on Ethics 20/20 (see, http://bit.ly/gDHFwX). The ABA had chartered that Commission in 2009 to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.” An “Introduction and Overview” and excellent discussion of the reasons why the 20/20 Commission was chartered appears at http://bit.ly/IFrsJr, along with the text of the Commission's proposed changes to the Model Rules of Professional Conduct and accompanying commentaries. The Introduction explains many aspects of why it has become imperative for all lawyers to understand technology, family lawyers and small town generalists as much as e-commerce attorneys.

Note that while this article discusses only the Commission's proposal concerning competence, other proposals address such issues as confidentiality and security of electronic information of clients, outsourcing, multi-jurisdictional practice, conflicts of interest and job changes and, perhaps most important, marketing and client solicitation. The commentaries on the proposals are well worth reading for anyone interested in the effects of technology on the practice of law.

As one who has tried to alert clients and firm colleagues for some time to the increasing importance of technology in business and in law ' often without
success, particularly with other attorneys, young and old ' I was intrigued by the first line of a report on the meeting: “Lawyers can't be Luddites.” (See, http://bit.ly/Tcnduq). That attention-grabber specifically refers to proposed Model Rule 1.1 ' approved for submission to state bars for a vote ' which will now state that a “lawyer's duty of competence” specifically includes “understanding relevant technology's benefits and risks.” (See, http://bit.ly/SiqXLo.)

Even more important, however, is that the commentary highlights that “this obligation is not new.” Instead, “the proposed amendment emphasizes that a lawyer should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer's general ethical duty to remain competent in a digital age.” (Emphasis added.)

And, even more important than that (the layered complexities of technology and law bring with them a multi-layered hierarchy of elements and considerations), several comments from the Commission's Overview illustrate its concern that one can't be a “competent” lawyer today just by understanding the law. Instead, as the technology used to deliver legal services has become so closely entwined with the practice of law itself, counsel must understand enough about the technology to use it intelligently, particularly (as discussed in this article) in business and e-commerce law. Without that understanding, an attorney cannot appreciate fully the ethical obligations inherent in the tools lawyers use every day (in the view of the 20/20 Commission, at least, and presumably the ABA, which adopted its slate of proposals). See well-known legal technology blogger Bob Ambrogi's article on Catalyst.com: “New ABA Ethics Rule Underscores What EDD Lawyers Should Already Know: There's No Hiding from Technology” (http://bit.ly/Om81pT).

Consider these highlights of the Overview:

• Technology and globalization have transformed the practice of law in ways the profession could not anticipate in 2002. Since then, communications and commerce have become increasingly globalized and technology-based. “Introduction and Overview,” page 1.
• [T]echnology has irrevocably changed and continues to alter the practice of law in fundamental ways. Legal work can be, and is, more easily disaggregated; business development can be done with new tools; and new processes facilitate legal work and communication with clients. Lawyers must understand technology in order to provide clients with the competent and cost-effective services that they expect and deserve. “Introduction and Overview,” page 3.
• Technology affects nearly every aspect of legal work, including how we store confidential information, communicate with clients, conduct discovery, engage in research, and market legal services. Even more fundamentally, technology has transformed the delivery of legal services by changing where and how those services are delivered (e.g., in an office, over the Internet or through virtual law offices), and it is having a related impact on the cost of, and the public's access to, these services. “Introduction and Overview,” page 4.
• Technology is also having a related impact on how lawyers conduct investigations, engage in legal research, advise their clients, and conduct discovery. These tasks now require lawyers to have a firm grasp on how electronic information is created, stored, and retrieved. “Introduction and Overview,” page 4.

What's It All About?

From an e-commerce perspective, what does this “new” restatement of an existing rule mean for an attorney's day-to-day practice? What precisely is required for a practicing attorney to be a “competent” e-commerce attorney, one who “understand(s) relevant technology's benefits and risks”?

Reflecting on many years of practice, and comments from clients about their expectations of counsel, I have listed several practical examples of what I believe it means for a lawyer today to be technically competent. (I emphasize that these are my own subjective views, which are not drawn from any particular statements in the 20/20 reports.)

I will begin with several mechanical aspects on use of technology in day-to-day practice ' I have often labeled these to associates as “knowing how to play with the toys” ' and then will turn to broader and more conceptual concerns about being an e-commerce counselor and legal adviser today, rather than just a technical attorney.

Technical Knowledge Is Needed

First is the recognition that simply practicing law, whatever that means today, is no longer enough, because the e-legal practice has absorbed many business functions.

I strongly disagree with the traditional notion that assisting clients with their own technology driven concerns, such as finding information that may be available online to assist with a case or a deal, is not a lawyer's job because, as proponents of this opinion hold, this function is just fact-finding or clerical work.

I have found that attorneys who are constantly online using technology to create and communicate often have a much better understanding of what information and tools may be available, and how to use them, than many clients have. While that statement certainly does not describe many tech clients, more traditional clients ' who may be extremely skilled at what they do ' often are glad to let us handle some tech matters for them because we can explain them (and, more important, we can explain their legal significance) in English rather than in “engineer speak.” As one insurance client said to me, “Why should I care about this metadata stuff, when I don't even know what it is?” From my perspective, it is easier to instruct a client in what he must do, in language he or his IT staff can understand, than to try to educate the client in the philosophy of e-discovery practices.

(I do not mean to imply that attorneys should become clients' high-priced IT support staff or help desk. But when legal obligations are affected, attorneys generally know far more about the rules for a case than most IT staff without a legal background.)

Different Fields, Different Demands

Attorneys must recognize that clients' lives may not revolve around being as constantly connected and online as we must be in our smart-phone driven legal culture (although once a client gets a smart phone, its demands for immediate response can be just as persistent as the demands made by any attorney's smart phone).

Not only does that mean understanding clients' expectations for the timeliness of a response, and the cost, but also providing explicit instructions for counsel's expectations of what the client will do with information counsel provides.

This hit home when I realized that a client did not understand our instructions for making an online filing with a state agency, when I got back the paper instructions, dutifully filled in by hand, rather than e-filed by the client.

Updated, All Around

A good e-commerce attorney not only knows what technology resources are available within the office, but also makes sure her own firm's technology resources are sufficiently up-to-date to meet client needs, in a cost-efficient manner ' and uses that knowledge to assist clients' planning, if requested.

In other words, who better understands why certain software or hardware upgrades are critical than the attorney who needs them to do her job? Often this means serving ' unpaid ' on the firm's Technology Committee.

Security Is a Priority Concern

Security issues cannot be left solely to the IT staff. The frequency and size of recent security breaches ' and the potential cost of resolving them ' have transformed this issue into an executive planning question, rather than simply an operational one for staff (see, e.g., “Cybersecurity Becoming No. 1 Concern for GCs and Directors,” Corporate Counsel, http://bit.ly/RUxKME).

Counsel must not know only what the challenges are, but also why the challenges are difficult. In an era of limited budgets for everything, counsel must also help balance the potential costs of addressing security concerns, and other technical and technological needs.

Even something as routine as establishing a banking relationship is fraught with technical decisions on security procedures (see, “In-House Legal Issues Raised by Digital Banking Options,” Corporate Counsel, http://bit.ly/Siuvxb). (Of course, the 20/20 Overview acknowledges that “lawyers cannot guarantee electronic security any more than lawyers can guarantee the physical security of documents stored in a file cabinet or offsite storage facility.”)

Ethics: An Integral Aspect of Using Technology

A competent e-commerce attorney understands how ethics concerns affect the use of technology, because new technologies come with new ethics questions (see, e.g., New York City Bar Association Formal Opinion 2012-2, concerning jury research and social media, at http://bit.ly/NjtQZ6).

For instance, even though it can be easy to “rewrite history” by deleting inconvenient documents imprudently created by a client's staff, rules concerning preservation, spoliation and duties to the court must override a client's business instincts as a matter of internal policy and controls. Counsel must try to keep a client from shooting itself in the foot by doing what seems easy; the ease of editing electronic files does not make it right to edit them.

Read ' and Ask Questions

A competent e-commerce attorney reads enough in both the legal and technical news to understand and anticipate trends ' and asks her IT staff for help if an emerging technical issue is too complex.

By the time a tech issue is decided, whether by case law or in a legislative or administrative proceeding, counsel should have had that concern on his or her radar, for use in planning and evaluating questions as they arise.

Recent examples include concerns about data privacy, and the potentially crushing costs of e-discovery, that can alone determine how a firm approaches a case.

Remember: If other attorneys are discussing how a particular emerging issue could affect their clients, then you should probably be concerned too.

Find Data, and Educate Clients

Good e-commerce counsel can help clients find needed information online, and, more generally, educate them about what may be available.

For example, a client whose website had been lost due to personnel changes and backup failures was thrilled to learn about the Wayback Machine (http://archive.org/web/web.php), as an often-useful way to identify how a Web page appeared in the past. (In fact, in this case, the client was able to recover most of its lost website.)

It can also be a useful tool in litigation, to see how Web pages have changed over time. The point is not that the Wayback Machine is a great tool (which it is), but that attorneys can often help clients who may simply not be aware that such tech resources are readily available online ' attorneys need to know that information or learn about it via legal listservs.

Look to the Cloud ' Pensively

Cloud computing is on everyone's buzz list as a way of cost-cutting, but many who look intelligently at its effect on budgets may not consider what such storage means for confidentiality and ethical concerns, or the ability to do work in the way a firm has been accustomed, when needed data is no longer stored locally. Many persons familiar with the technology have already warned of unexpected ethical storms hiding in the cloud (see, Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, “Ethical Obligations for Attorneys Using Cloud Computing/Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property,” Formal Opinion 2011-200, at http://bit.ly/PD0PtH ' password required). See also, “Hack of Tech Journalist Reveals Flaws in Cloud Security,” USA Today Tech, http://usat.ly/PD17AK, and “Mass. Joins Other States in Ruling that Cloud Computing is Ethical for Lawyers,” Bob Ambrogi, E-Discovery Search Blog, http://bit.ly/NaR2de.

While legal issues relating to lawyers' use of data in the cloud are far from resolved, the cloud's widespread use means that counsel should already be thinking about ethical and practical implications of using the cloud ' and making sure that clients who use cloud services understand the risks.

Mobile Technology Requires Scrutiny

Similarly, technology that enables lawyer mobility ' the ability to work from remote locations, whether a client meeting or a summer beach house ' also comes with costs of the security measures necessary to establish such practices. Mobile counsel, then, must cost-effectively and proactively employ such resources to meet client expectations.

Talk the Tech Talk

An e-attorney must be multi-lingual, because her clients are. But the multi-lingual lawyer needn't be fluent in English and Spanish; instead, I am talking about different forms of computing and venues, beyond just PC vs. Mac.

For example, counsel must be familiar with, be able to access information on, and be prepared to give advice about what clients actually use ' different forms of social media such as Facebook and Twitter. (It helps to have a teenager in the house so that an attorney can discover what the “latest and hottest” app may be.) IT departments that may have blocked Facebook or other online services or declined to support iPhones, for security reasons, must realize that they will have to deal with discovery and litigation holds at those sites, because clients (and attorneys) will always use what works best for them.

Counsel must also give particular attention to what works and does not work on a smartphone, the computing venue of choice for most clients today.

Address, Amplify Adaptability

Counsel should think about why “the way it has always been done” may simply be wrong today, or can be made wrong on very little notice. Good counsel can help clients identify what existing practices must change to meet the marketplace ' long before doing things the same old way imposes economic realities.

Social Media

Businesses today have been admonished to maintain a social media presence. As informal and transparent as such venues may seem, however, they are still governed by rules, from the Federal Trade Commission's endorsement rules mandating full disclosure when participating in social media marketing to more nuanced ethical judgments about the propriety of common online behavior that may have different implications when done by an attorney.

Being able to access information online in social media doesn't automatically give an attorney the right to do so, especially if he is the one looking for that data. Given the ubiquity of social media marketing, counsel must also be sensitive to whether clients understand that these rules even exist, much less follow them. (For examples of several particularly egregious or risky behaviors, see, generally, “The Intersection of Online Communications and Legal Ethics,” Awsumb and Roby, The Federal Lawyer (August 2012) (http://bit.ly/ONxUzb); “For Lawyers the Appeal of Social Media Is Obvious. It's Also Dangerous,” ABA Journal (Feb. 4, 2011) (http://bit.ly/ONyfBV).)

Be Aware of 'Hidden' Rules ' Expect Everything

Within the attorney's own office, the marketing department may have many ideas about how best to publicize the firm's skills and accomplishments ' often taking advantage of emerging Internet technologies. Counsel must temper that enthusiasm with an understanding of the ethical concerns that may arise, whether due to multi-jurisdictional marketing, or creating attorney client relationships through online exchanges of information when neither party realizes one even could exist ' until a claim arises for malpractice, or disqualification.

(See, in particular, the 20/20 Commission's Proposal 105B, “to provide guidance regarding lawyers' use of technology and client development,” at http://bit.ly/O1Aimt.)

Strategy Counts, Too

Beyond these tactical concerns are the strategic implications of technology in the law office. While not as important day-to-day, attention to these concerns is no less important to the ethical obligation of competence of an attorney practicing today as a business counselor and adviser.

For example, counsel must be able to spot and highlight strategic implications of new technologies as they enter the market. To use only a few recent examples, the growth of social media, the introduction of new website domains, the creation of Facebook usernames, the change from Hotmail to Outlook.com (or simply why neither Hotmail, Outlook.com nor Gmail provides a good solution for legal and business e-mail communication) are all examples of online opportunities that savvy tech counsel quickly recognized as ways to market her legal expertise.

IP Concerns

Looking broadly at the future of the U.S. economy, a reasonable person could certainly conclude that in the future, intellectual property will play a far greater role than traditional U.S. economic strengths.

Whether or not clients request advice on intellectual property issues (or even recognize that such issues exist in their businesses), competent counsel will highlight them and explain why they matter.

In fact, the business implications of intellectual property often dwarf the legal concerns, which some clients may simply not realize if they have never been exposed to the concept of “intellectual property,” much less why it may be valuable.

Doing Due Diligence '
Above and Beyond

While not necessarily a legal function for counsel (unless affirmatively requested by a client), using the Internet and the tools available on it to locate information important for clients' strategic planning can be an invaluable support for a client that has neither the skill, time or competence to devote itself to online due diligence and marketing research. At a minimum, however, competent e-counsel should watch for and identify e-business opportunities that may arise when online technologies first develop.

Watch for Scams

Everyone is familiar with the spurious help-me-please e-mail proposals from Nigeria, or other apparently attractive e-mails the origin of which can usually be quickly smoked out at Snopes.com or at hoaxbusters.org. Similarly, the tech economy has always been marked by heavy use of vaporware ' the breathless announcement of the “next big thing” that may not only not be big, but far from “next” (if it ever reaches distribution).

Competent counsel, though, can help clients sort out what is real and worth a client's (or its IT staff's) attention, from what is simply an invitation to transfer wealth to someone dressed more elegantly than the typical street con man, or an IT sales rep warning of a need that exists solely to sell her latest product.

Find a Way to Make Money

At the risk of listing something that has been widely trumpeted in the media, thinking about how to “monetize” social media ' to find a business reason to justify doing it, other than because everyone else is (and our customers expect us to do so as well) ' may be an easier way of thinking for counsel that has the opportunity to see how many client firms use and interact online, than for a firm that only has its own experience, especially if the firm's business and customers did not naturally force management online during the dot-com explosion.

Don't Be Afraid to Get Personal

I am constantly reminded how the increasing use of social media has, in some ways, made us less social ' we are more likely to send an e-mail or a text, than to pick up the phone for a human interaction that could be much more productive (and shorter, and less expensive) than its electronic counterpart.

One client in particular has expressed frustration over how the nature and cost of his interactions with counsel have changed since we all ' on both sides of the table ' have come to rely increasingly on impersonal, asynchronous electronic communication, because it is so much more convenient than in-person or telephone contact.

The competent tech lawyer must also remember that she is a counselor who can explore different aspects of a question, as well as a legal technician.

Be Brave: It's Not Just
Black and White

Today's tech attorney must be comfortable “in the gray,” providing advice on questions and strategies where not only the answer may remain uncertain, but also the precise bounds of the question.

One aspect of such comfort involves the duty, not just the intention, to consciously and affirmatively keep up-to-date with developments in technology, as much as we must monitor developments in the law. As an example of the types of questions I see implicated here, see, “Legal Ethics Involved in Online Social Media and Networking: An Overview,” Res Gestae, by the Indiana State Bar Association (March, 2011) (http://bit.ly/NF1xEd).

Similar uncertainties arise when practice and marketing cross boundaries, not just between states, but across international lines, due to the worldwide span of the Internet.

Then Again '

Perhaps the grayest area facing today's tech lawyer is that all of the thinking and analysis discussed in this article could change instantly, depending on what may be brewing in the lab of someone nobody knows today. Who knew Google or Facebook or Twitter before they became a part of everyone's life and business?

The 20/20 Commission's Overview closed with an understated reminder of the challenges all of us in the profession face from the technologies we cannot live or work without:

It is important to note that the proposals set forth in these Resolutions reflect the state of the profession during a snapshot in time. Technology and globalization will continue to produce new challenges and opportunities. Indeed, the pace of change has quickened, making it likely that the ABA will want to reexamine the Model Rules and related policies with greater frequency in the years ahead. In the meantime, it is our hope that our efforts will advance the profession's core values, give lawyers more guidance regarding their ethical obligations, and most importantly, benefit the clients and the public that we are privileged to serve.

Stanley P. Jaskiewicz, a business lawyer, helps clients solve e-commerce, corporate, contract and technology-law problems, and is a member of e-Commerce Law & Strategy's Board of Editors. He can be reached at the Philadelphia law firm of Spector Gadon & Rosen P.C., at [email protected], or 215-241-8866.

How many practicing lawyers today (at least those over the age of 40) studied metadata and data security in law school?

How many today can discuss the ethical aspects of those issues with the same level of knowledge as they would about conflicts of interest, or privilege questions?

Those skills, and more, are required to practice law, according to resolutions passed in early August by the American Bar Association (ABA) House of Delegates. At its annual meeting, the ABA approved a series of resolutions from its Commission on Ethics 20/20 (see, http://bit.ly/gDHFwX). The ABA had chartered that Commission in 2009 to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.” An “Introduction and Overview” and excellent discussion of the reasons why the 20/20 Commission was chartered appears at http://bit.ly/IFrsJr, along with the text of the Commission's proposed changes to the Model Rules of Professional Conduct and accompanying commentaries. The Introduction explains many aspects of why it has become imperative for all lawyers to understand technology, family lawyers and small town generalists as much as e-commerce attorneys.

Note that while this article discusses only the Commission's proposal concerning competence, other proposals address such issues as confidentiality and security of electronic information of clients, outsourcing, multi-jurisdictional practice, conflicts of interest and job changes and, perhaps most important, marketing and client solicitation. The commentaries on the proposals are well worth reading for anyone interested in the effects of technology on the practice of law.

As one who has tried to alert clients and firm colleagues for some time to the increasing importance of technology in business and in law ' often without
success, particularly with other attorneys, young and old ' I was intrigued by the first line of a report on the meeting: “Lawyers can't be Luddites.” (See, http://bit.ly/Tcnduq). That attention-grabber specifically refers to proposed Model Rule 1.1 ' approved for submission to state bars for a vote ' which will now state that a “lawyer's duty of competence” specifically includes “understanding relevant technology's benefits and risks.” (See, http://bit.ly/SiqXLo.)

Even more important, however, is that the commentary highlights that “this obligation is not new.” Instead, “the proposed amendment emphasizes that a lawyer should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer's general ethical duty to remain competent in a digital age.” (Emphasis added.)

And, even more important than that (the layered complexities of technology and law bring with them a multi-layered hierarchy of elements and considerations), several comments from the Commission's Overview illustrate its concern that one can't be a “competent” lawyer today just by understanding the law. Instead, as the technology used to deliver legal services has become so closely entwined with the practice of law itself, counsel must understand enough about the technology to use it intelligently, particularly (as discussed in this article) in business and e-commerce law. Without that understanding, an attorney cannot appreciate fully the ethical obligations inherent in the tools lawyers use every day (in the view of the 20/20 Commission, at least, and presumably the ABA, which adopted its slate of proposals). See well-known legal technology blogger Bob Ambrogi's article on Catalyst.com: “New ABA Ethics Rule Underscores What EDD Lawyers Should Already Know: There's No Hiding from Technology” (http://bit.ly/Om81pT).

Consider these highlights of the Overview:

• Technology and globalization have transformed the practice of law in ways the profession could not anticipate in 2002. Since then, communications and commerce have become increasingly globalized and technology-based. “Introduction and Overview,” page 1.
• [T]echnology has irrevocably changed and continues to alter the practice of law in fundamental ways. Legal work can be, and is, more easily disaggregated; business development can be done with new tools; and new processes facilitate legal work and communication with clients. Lawyers must understand technology in order to provide clients with the competent and cost-effective services that they expect and deserve. “Introduction and Overview,” page 3.
• Technology affects nearly every aspect of legal work, including how we store confidential information, communicate with clients, conduct discovery, engage in research, and market legal services. Even more fundamentally, technology has transformed the delivery of legal services by changing where and how those services are delivered (e.g., in an office, over the Internet or through virtual law offices), and it is having a related impact on the cost of, and the public's access to, these services. “Introduction and Overview,” page 4.
• Technology is also having a related impact on how lawyers conduct investigations, engage in legal research, advise their clients, and conduct discovery. These tasks now require lawyers to have a firm grasp on how electronic information is created, stored, and retrieved. “Introduction and Overview,” page 4.

What's It All About?

From an e-commerce perspective, what does this “new” restatement of an existing rule mean for an attorney's day-to-day practice? What precisely is required for a practicing attorney to be a “competent” e-commerce attorney, one who “understand(s) relevant technology's benefits and risks”?

Reflecting on many years of practice, and comments from clients about their expectations of counsel, I have listed several practical examples of what I believe it means for a lawyer today to be technically competent. (I emphasize that these are my own subjective views, which are not drawn from any particular statements in the 20/20 reports.)

I will begin with several mechanical aspects on use of technology in day-to-day practice ' I have often labeled these to associates as “knowing how to play with the toys” ' and then will turn to broader and more conceptual concerns about being an e-commerce counselor and legal adviser today, rather than just a technical attorney.

Technical Knowledge Is Needed

First is the recognition that simply practicing law, whatever that means today, is no longer enough, because the e-legal practice has absorbed many business functions.

I strongly disagree with the traditional notion that assisting clients with their own technology driven concerns, such as finding information that may be available online to assist with a case or a deal, is not a lawyer's job because, as proponents of this opinion hold, this function is just fact-finding or clerical work.

I have found that attorneys who are constantly online using technology to create and communicate often have a much better understanding of what information and tools may be available, and how to use them, than many clients have. While that statement certainly does not describe many tech clients, more traditional clients ' who may be extremely skilled at what they do ' often are glad to let us handle some tech matters for them because we can explain them (and, more important, we can explain their legal significance) in English rather than in “engineer speak.” As one insurance client said to me, “Why should I care about this metadata stuff, when I don't even know what it is?” From my perspective, it is easier to instruct a client in what he must do, in language he or his IT staff can understand, than to try to educate the client in the philosophy of e-discovery practices.

(I do not mean to imply that attorneys should become clients' high-priced IT support staff or help desk. But when legal obligations are affected, attorneys generally know far more about the rules for a case than most IT staff without a legal background.)

Different Fields, Different Demands

Attorneys must recognize that clients' lives may not revolve around being as constantly connected and online as we must be in our smart-phone driven legal culture (although once a client gets a smart phone, its demands for immediate response can be just as persistent as the demands made by any attorney's smart phone).

Not only does that mean understanding clients' expectations for the timeliness of a response, and the cost, but also providing explicit instructions for counsel's expectations of what the client will do with information counsel provides.

This hit home when I realized that a client did not understand our instructions for making an online filing with a state agency, when I got back the paper instructions, dutifully filled in by hand, rather than e-filed by the client.

Updated, All Around

A good e-commerce attorney not only knows what technology resources are available within the office, but also makes sure her own firm's technology resources are sufficiently up-to-date to meet client needs, in a cost-efficient manner ' and uses that knowledge to assist clients' planning, if requested.

In other words, who better understands why certain software or hardware upgrades are critical than the attorney who needs them to do her job? Often this means serving ' unpaid ' on the firm's Technology Committee.

Security Is a Priority Concern

Security issues cannot be left solely to the IT staff. The frequency and size of recent security breaches ' and the potential cost of resolving them ' have transformed this issue into an executive planning question, rather than simply an operational one for staff (see, e.g., “Cybersecurity Becoming No. 1 Concern for GCs and Directors,” Corporate Counsel, http://bit.ly/RUxKME).

Counsel must not know only what the challenges are, but also why the challenges are difficult. In an era of limited budgets for everything, counsel must also help balance the potential costs of addressing security concerns, and other technical and technological needs.

Even something as routine as establishing a banking relationship is fraught with technical decisions on security procedures (see, “In-House Legal Issues Raised by Digital Banking Options,” Corporate Counsel, http://bit.ly/Siuvxb). (Of course, the 20/20 Overview acknowledges that “lawyers cannot guarantee electronic security any more than lawyers can guarantee the physical security of documents stored in a file cabinet or offsite storage facility.”)

Ethics: An Integral Aspect of Using Technology

A competent e-commerce attorney understands how ethics concerns affect the use of technology, because new technologies come with new ethics questions (see, e.g., New York City Bar Association Formal Opinion 2012-2, concerning jury research and social media, at http://bit.ly/NjtQZ6).

For instance, even though it can be easy to “rewrite history” by deleting inconvenient documents imprudently created by a client's staff, rules concerning preservation, spoliation and duties to the court must override a client's business instincts as a matter of internal policy and controls. Counsel must try to keep a client from shooting itself in the foot by doing what seems easy; the ease of editing electronic files does not make it right to edit them.

Read ' and Ask Questions

A competent e-commerce attorney reads enough in both the legal and technical news to understand and anticipate trends ' and asks her IT staff for help if an emerging technical issue is too complex.

By the time a tech issue is decided, whether by case law or in a legislative or administrative proceeding, counsel should have had that concern on his or her radar, for use in planning and evaluating questions as they arise.

Recent examples include concerns about data privacy, and the potentially crushing costs of e-discovery, that can alone determine how a firm approaches a case.

Remember: If other attorneys are discussing how a particular emerging issue could affect their clients, then you should probably be concerned too.

Find Data, and Educate Clients

Good e-commerce counsel can help clients find needed information online, and, more generally, educate them about what may be available.

For example, a client whose website had been lost due to personnel changes and backup failures was thrilled to learn about the Wayback Machine (http://archive.org/web/web.php), as an often-useful way to identify how a Web page appeared in the past. (In fact, in this case, the client was able to recover most of its lost website.)

It can also be a useful tool in litigation, to see how Web pages have changed over time. The point is not that the Wayback Machine is a great tool (which it is), but that attorneys can often help clients who may simply not be aware that such tech resources are readily available online ' attorneys need to know that information or learn about it via legal listservs.

Look to the Cloud ' Pensively

Cloud computing is on everyone's buzz list as a way of cost-cutting, but many who look intelligently at its effect on budgets may not consider what such storage means for confidentiality and ethical concerns, or the ability to do work in the way a firm has been accustomed, when needed data is no longer stored locally. Many persons familiar with the technology have already warned of unexpected ethical storms hiding in the cloud (see, Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, “Ethical Obligations for Attorneys Using Cloud Computing/Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property,” Formal Opinion 2011-200, at http://bit.ly/PD0PtH ' password required). See also, “Hack of Tech Journalist Reveals Flaws in Cloud Security,” USA Today Tech, http://usat.ly/PD17AK, and “Mass. Joins Other States in Ruling that Cloud Computing is Ethical for Lawyers,” Bob Ambrogi, E-Discovery Search Blog, http://bit.ly/NaR2de.

While legal issues relating to lawyers' use of data in the cloud are far from resolved, the cloud's widespread use means that counsel should already be thinking about ethical and practical implications of using the cloud ' and making sure that clients who use cloud services understand the risks.

Mobile Technology Requires Scrutiny

Similarly, technology that enables lawyer mobility ' the ability to work from remote locations, whether a client meeting or a summer beach house ' also comes with costs of the security measures necessary to establish such practices. Mobile counsel, then, must cost-effectively and proactively employ such resources to meet client expectations.

Talk the Tech Talk

An e-attorney must be multi-lingual, because her clients are. But the multi-lingual lawyer needn't be fluent in English and Spanish; instead, I am talking about different forms of computing and venues, beyond just PC vs. Mac.

For example, counsel must be familiar with, be able to access information on, and be prepared to give advice about what clients actually use ' different forms of social media such as Facebook and Twitter. (It helps to have a teenager in the house so that an attorney can discover what the “latest and hottest” app may be.) IT departments that may have blocked Facebook or other online services or declined to support iPhones, for security reasons, must realize that they will have to deal with discovery and litigation holds at those sites, because clients (and attorneys) will always use what works best for them.

Counsel must also give particular attention to what works and does not work on a smartphone, the computing venue of choice for most clients today.

Address, Amplify Adaptability

Counsel should think about why “the way it has always been done” may simply be wrong today, or can be made wrong on very little notice. Good counsel can help clients identify what existing practices must change to meet the marketplace ' long before doing things the same old way imposes economic realities.

Social Media

Businesses today have been admonished to maintain a social media presence. As informal and transparent as such venues may seem, however, they are still governed by rules, from the Federal Trade Commission's endorsement rules mandating full disclosure when participating in social media marketing to more nuanced ethical judgments about the propriety of common online behavior that may have different implications when done by an attorney.

Being able to access information online in social media doesn't automatically give an attorney the right to do so, especially if he is the one looking for that data. Given the ubiquity of social media marketing, counsel must also be sensitive to whether clients understand that these rules even exist, much less follow them. (For examples of several particularly egregious or risky behaviors, see, generally, “The Intersection of Online Communications and Legal Ethics,” Awsumb and Roby, The Federal Lawyer (August 2012) (http://bit.ly/ONxUzb); “For Lawyers the Appeal of Social Media Is Obvious. It's Also Dangerous,” ABA Journal (Feb. 4, 2011) (http://bit.ly/ONyfBV).)

Be Aware of 'Hidden' Rules ' Expect Everything

Within the attorney's own office, the marketing department may have many ideas about how best to publicize the firm's skills and accomplishments ' often taking advantage of emerging Internet technologies. Counsel must temper that enthusiasm with an understanding of the ethical concerns that may arise, whether due to multi-jurisdictional marketing, or creating attorney client relationships through online exchanges of information when neither party realizes one even could exist ' until a claim arises for malpractice, or disqualification.

(See, in particular, the 20/20 Commission's Proposal 105B, “to provide guidance regarding lawyers' use of technology and client development,” at http://bit.ly/O1Aimt.)

Strategy Counts, Too

Beyond these tactical concerns are the strategic implications of technology in the law office. While not as important day-to-day, attention to these concerns is no less important to the ethical obligation of competence of an attorney practicing today as a business counselor and adviser.

For example, counsel must be able to spot and highlight strategic implications of new technologies as they enter the market. To use only a few recent examples, the growth of social media, the introduction of new website domains, the creation of Facebook usernames, the change from Hotmail to Outlook.com (or simply why neither Hotmail, Outlook.com nor Gmail provides a good solution for legal and business e-mail communication) are all examples of online opportunities that savvy tech counsel quickly recognized as ways to market her legal expertise.

IP Concerns

Looking broadly at the future of the U.S. economy, a reasonable person could certainly conclude that in the future, intellectual property will play a far greater role than traditional U.S. economic strengths.

Whether or not clients request advice on intellectual property issues (or even recognize that such issues exist in their businesses), competent counsel will highlight them and explain why they matter.

In fact, the business implications of intellectual property often dwarf the legal concerns, which some clients may simply not realize if they have never been exposed to the concept of “intellectual property,” much less why it may be valuable.

Doing Due Diligence '
Above and Beyond

While not necessarily a legal function for counsel (unless affirmatively requested by a client), using the Internet and the tools available on it to locate information important for clients' strategic planning can be an invaluable support for a client that has neither the skill, time or competence to devote itself to online due diligence and marketing research. At a minimum, however, competent e-counsel should watch for and identify e-business opportunities that may arise when online technologies first develop.

Watch for Scams

Everyone is familiar with the spurious help-me-please e-mail proposals from Nigeria, or other apparently attractive e-mails the origin of which can usually be quickly smoked out at Snopes.com or at hoaxbusters.org. Similarly, the tech economy has always been marked by heavy use of vaporware ' the breathless announcement of the “next big thing” that may not only not be big, but far from “next” (if it ever reaches distribution).

Competent counsel, though, can help clients sort out what is real and worth a client's (or its IT staff's) attention, from what is simply an invitation to transfer wealth to someone dressed more elegantly than the typical street con man, or an IT sales rep warning of a need that exists solely to sell her latest product.

Find a Way to Make Money

At the risk of listing something that has been widely trumpeted in the media, thinking about how to “monetize” social media ' to find a business reason to justify doing it, other than because everyone else is (and our customers expect us to do so as well) ' may be an easier way of thinking for counsel that has the opportunity to see how many client firms use and interact online, than for a firm that only has its own experience, especially if the firm's business and customers did not naturally force management online during the dot-com explosion.

Don't Be Afraid to Get Personal

I am constantly reminded how the increasing use of social media has, in some ways, made us less social ' we are more likely to send an e-mail or a text, than to pick up the phone for a human interaction that could be much more productive (and shorter, and less expensive) than its electronic counterpart.

One client in particular has expressed frustration over how the nature and cost of his interactions with counsel have changed since we all ' on both sides of the table ' have come to rely increasingly on impersonal, asynchronous electronic communication, because it is so much more convenient than in-person or telephone contact.

The competent tech lawyer must also remember that she is a counselor who can explore different aspects of a question, as well as a legal technician.

Be Brave: It's Not Just
Black and White

Today's tech attorney must be comfortable “in the gray,” providing advice on questions and strategies where not only the answer may remain uncertain, but also the precise bounds of the question.

One aspect of such comfort involves the duty, not just the intention, to consciously and affirmatively keep up-to-date with developments in technology, as much as we must monitor developments in the law. As an example of the types of questions I see implicated here, see, “Legal Ethics Involved in Online Social Media and Networking: An Overview,” Res Gestae, by the Indiana State Bar Association (March, 2011) (http://bit.ly/NF1xEd).

Similar uncertainties arise when practice and marketing cross boundaries, not just between states, but across international lines, due to the worldwide span of the Internet.

Then Again '

Perhaps the grayest area facing today's tech lawyer is that all of the thinking and analysis discussed in this article could change instantly, depending on what may be brewing in the lab of someone nobody knows today. Who knew Google or Facebook or Twitter before they became a part of everyone's life and business?

The 20/20 Commission's Overview closed with an understated reminder of the challenges all of us in the profession face from the technologies we cannot live or work without:

It is important to note that the proposals set forth in these Resolutions reflect the state of the profession during a snapshot in time. Technology and globalization will continue to produce new challenges and opportunities. Indeed, the pace of change has quickened, making it likely that the ABA will want to reexamine the Model Rules and related policies with greater frequency in the years ahead. In the meantime, it is our hope that our efforts will advance the profession's core values, give lawyers more guidance regarding their ethical obligations, and most importantly, benefit the clients and the public that we are privileged to serve.

Stanley P. Jaskiewicz, a business lawyer, helps clients solve e-commerce, corporate, contract and technology-law problems, and is a member of e-Commerce Law & Strategy's Board of Editors. He can be reached at the Philadelphia law firm of Spector Gadon & Rosen P.C., at [email protected], or 215-241-8866.