That the use of technology has radically changed the legal profession is beyond dispute. Through technology, lawyers can now represent clients in faraway states and countries, and they can represent even local clients through a “virtual law office.” Gone are the times in which the lawyer’s choices for communicating with clients primarily involve preparing formal business letters to convey advice, holding in-person client meetings in the office, or conducting telephone calls with clients on landlines from the confines of the lawyer’s office. Not only do lawyers have choices about how to communicate with their clients, but they also frequently choose electronic modes of communication.
Though using technology for client communications is typically faster and often more convenient than traditional modes of communication, a lawyer’s ethical obligations impact whether or how to use technology. The use of technology impacts three of the lawyer’s most fundamental obligations–the lawyer’s duties to communicate with the client, to protect the confidentiality of that communication, and to provide competent representation. For those reasons, whether a lawyer’s use of technology comports with the lawyer’s ethical requirements has been the source of numerous ethics committee opinions over the last twenty years, as well as a series of amendments to the American Bar Association’s Model Rules of Professional Conduct. Though it is now universally accepted that lawyers can use technology for client communications, the prevalence of technology does not dictate that its use is always appropriate.
Part I of this Article analyzes state and ABA ethics opinions that consider the propriety of a lawyer’s use of technology for client communications. Part II discusses changes to the Model Rules since 2000 relating to the use of technology by lawyers and its impact on the practice of law. Part III proposes that law professors and lawyers charged with instructing or mentoring law students and new lawyers regarding client communications educate them regarding not only the content of those communications, but also how and when to use technology. Perhaps ironically, the additional instruction regarding how and when to use technology is a necessity because of the frequency and ease with which the current generation of law students uses technology.
Kristin J. Hazelwood, Technology and Client Communications: Preparing Law Students and New Lawyers to Make Choices That Comply with the Ethical Duties of Confidentiality, Competence, and Communication, 83 Miss. L.J. 245 (2014).