Developed by the Law Society of NSW Legal Technology Committee
Technology is increasingly impacting the way in which lawyers practice law so to utilise the tools available, lawyers must have reasonable understanding of the technology used, as well as rules and procedures regarding electronic documents and communication.
These guidelines seek to provide helpful and practical advice on the use of technology / Internet in legal practice, in particular with respect to ethics and confidentiality.
A lawyer has a duty to maintain confidentiality of a client’s affairs, business and interests.
It’s important to ensure that electronic communications to or about client matters are given the same or greater level of care and concern for matters of privilege and confidentiality normally expected of a lawyer using any other form of communication.
The use of email and other electronic communications create opportunities for inadvertent disclosure of confidential information and it is more difficult to correct and reduce the impact of such mistakes, given the instantaneous nature of the Internet.
When using electronic communications:
- Be aware of how communications may be inadvertently disclosed, discovered or intercepted;
- Use reasonably appropriate technical means to reduce or minimise such risks;
- In the case of sensitive information, use encryption and advise clients to use encryption; and
- Develop and maintain office communication policies and practices.
Some practical suggestions to reduce risk of disclosure are set out below:
- Check the addressee of your email – some email programs, whether on your local machine (e.g. Outlook or Thunderbird) or on the Internet (e.g. Gmail), automatically complete the email addresses as you start typing. If you have contacts with similar names in your address book, there is a risk that you may inadvertently send the email to the wrong person.
- Make sure you attach the correct document – open the document that you have attached to confirm it is the correct one.
- Proof read your email before sending – it is nearly impossible to stop it reaching the recipient once sent
- Consider configuring the mail software not to send emails immediately, so that if you click “Send” and realise you have made a mistake, there may be an opportunity to correct the error.
- Alternatively, you may set up a notification request to confirm that you wish to send that email to ensure that only intended emails are sent out.
- Be careful in forwarding your client’s email to the other side’s lawyer – it may seem easier to forward instructions to the other side (e.g. agree to settlement or contract) however, as it may contain confidential information of your client, you should create a new email and type in the relevant information.
- Do not BCC clients when sending emails to the other side – your client may not be as technically aware and may respond by “replying all”. Rather, forward the email sent to the other side to your client.
- Only insert the addressee’s email address once the email has been finalised and is ready to send to avoid accidentally sending incomplete or incorrect emails.
Lawyers are responsible to the community and must observe high standards of conduct and behaviour when performing their duties to the courts, their clients and fellow practitioners.
With the ever-increasing availability of information and the growth of social media, a lawyer must be diligent in upholding the highest standards of integrity and honesty.
Some practical suggestions to reduce unethical behaviour are set out below:
- Maintain confidentiality – you should respect the privacy and confidentiality of your clients. Do not email or use social media to update your colleagues and friends of what you are currently working on.
- When discussing general legal issues use non-identifying pseudonyms so long as the information provided does not make it easy for someone to identify the client.
- Do not send or publish anything that might allow inferences to be drawn which could embarrass or damage a client, even if it may not be illegal.
- Software piracy is illegal and unethical. You should check the license conditions before copying or using software on different computers.
- When writing advice or drafting documents, it may be easy to copy and paste from different sources on the Internet. However, it may be a breach of copyright so you should ensure you create your own work.
USB case study
In late 2010, when UBS was one of the 35 or so investment banks chosen by GM to help with its $13bn IPO, a UBS salesperson sent out an e-mail, which allegedly included details such as IPO pricing which violated SEC rules on marketing. GM asked UBS to step down, a move which was estimated to be worth about $10 million in fees.
Skadden Lawyers case study
In November 2010, a partner at Skadden inadvertently emailed confidential employee evaluations of almost the entire firm to the entire antitrust department.
Berkeley Law School case study
Several years ago, the director of admissions at the University of California, Berkeley Law School was training a new staff member in how to use the existing e-mail software and was highlighting several features, including how to send messages to one recipient or multiple simultaneously.
Unfortunately at this point, he accidentally sent the standard congratulatory message on being admitted to the law school to all 7,000 student applicants who were waiting on a response. This was unfortunate as only 800 or so students would actually be offered a place there. The director sent out two apologetic emails after this to the affected students and decided to work with their IT department to create a “confirm send” notification before emails were sent out in the future.
For assistance in interpreting these guidelines read more Statement of Ethics on the Law Society’s website.