Mark Dubois: Another Lesson In Digital Literacy
Two or three years ago at a Connecticut Bar Association professionalism symposium, Mike Bowler, the Statewide Bar Counsel, discussed how changes to Rule 1.1, which deals with lawyer competence, now requires lawyers to have technological competence. He predicted that lawyers were going to get into trouble if they ventured into litigation and other areas of representation without having a sufficient grasp of the technological aspects of the undertaking.
While Mike gave an example of a lawyer in a divorce case not doing due diligence on a spouses' Facebook postings, it was not hard to imagine other areas where a digital "gotcha" might be found. A hapless Massachusetts lawyer recently provided one example.
In a case called Reisman, the Massachusetts Board of Bar Examiners reprimanded a lawyer who ran onto the shoals of technological incompetence. It seems that Kenneth Reisman was representing a client who had recently left a company called NSA. (Though the case did not say so, I doubt it was that NSA, or that the client was named Snowden.) When the client moved to a new employer, he took a NSA computer with him and downloaded some proprietary material onto his new employer's computer. NSA sued, and a court entered an interlocutory injunction preventing the employee from deleting any information from his computer and giving NSA's lawyers the right to examine the new employer's computer to see what, if anything, had been transferred.
The employee asked Reisman if it would be OK for him to delete some proprietary information belonging to the new employer from his computer before it was examined, and Reisman told him he could do so. He used a scrubbing program to delete the files. (Though it is not clear from the decision, it seems that neither the client nor the lawyer knew that it is really hard to "delete" anything from a computer.) The deletions were discovered and Reisman was replaced. Even though the trial court later found the information was neither crucial nor caused NSA any damage, Reisman was still reprimanded and ordered to attend two CLE classes.
Two things I found of particular interest were that the events complained of happened in 2006, a lifetime in terms of technology, and that the Board of Bar Overseers specifically noted that Reisman was "relatively inexperienced" in the area of electronic discovery. Nevertheless, the board chose to impose public rather than private discipline, perhaps to serve the "general deterrence" aspect of lawyer discipline, i.e., that a few get slapped publically so that many can learn from their errors.
As a sidebar note, this is not the first I have seen a case involving an attempt to scrub a computer. I was involved in a matter with a lawyer who was prosecuted for scrubbing a laptop containing some information relating to alleged bribes paid to a state official. That case was easier, as there was a criminal conviction for obstructing justice or something similar, and the collateral consequence of losing a law license was small potatoes. Practice tip: If anyone suggests scrubbing anything other than a dirty dish, run.
When commentators like Mike Bowler began warning that lawyers might get into trouble with technology (like losing files in the cloud), some of my generation wondered if we could just unplug from all of this and save a lot of worry. But it seems that best practices now in almost any area of representation involve the use of technology, whether it be using "the Google" to conduct due diligence in a business transaction or Facebook to see if accident victims have posted pictures of themselves hang-gliding while they were recuperating from their injuries. And, as Mr. Reisman discovered, e-discovery is a field of expertise unto itself, a field with many traps for the unskilled and the unwary.
Carolyn Elefant, who blogs about law and lawyers, recently posted an article with her suggestions for course content that should be offered by law schools. A hefty amount of it dealt with technology, both in the area of representing clients and for self-promotion. Considering how few lawyers ever do appellate work, wouldn't it make more sense to replace moot court with a course on how to create and manage electronic information? Instead of arguing a case in front of a panel of judges, the competitors in such a course might have to design a predictive coding algorithm to ferret the correct needles out of a haystack of millions of electronically stored documents.
Way less fun and way more relevant to getting a job. And, maybe, also likely to help the next Reisman avoid a disciplinary record.•
Mark Dubois, the former chief disciplinary counsel for Connecticut, is an attorney at the New London firm of Geraghty & Bonnano. He is also president-elect of the Connecticut Bar Association. The views here are his own and not those of the CBA. Mark Dubois, the former chief disciplinary counsel for Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano. Dubois is president-elect of the Connecticut Bar Association, but his opinions reflect only his views and not those of the CBA.