Technology Creates A Malpractice Minefield For An Unsuspecting Attorney
On behalf of Christine Olivari
When an attorney’s actions or inactions in a particular legal matter harm a client, the client should seek legal advice as soon as possible from another lawyer with experience, knowledge and skill in the area of legal malpractice. Basically, in Massachusetts, every attorney owes each client the duty of reasonable care when providing legal services. In a lawsuit for attorney malpractice, the client would have to prove by a preponderance of evidence that the lawyer breached his or her duty of care, thereby causing actual economic harm to the client.
The affect of technology on a lawyer’s professional responsibility
In the 1980s, technology began to permeate the practice of law, a phenomena that accelerated in unimaginable ways over the next 40 years. At first, younger attorneys came out of law school with some technological exposure like basic training in computerized legal research methods, for example.
The obvious question evolved: could it become malpractice for a lawyer to continue to rely on book research when other attorneys were becoming fluent and savvy in faster, more precise computer-based legal research methods? Ethical and professional expectations did evolve in that direction and they are still evolving.
It did not end with legal research. As a reflection of the rest of the world, the profession had no choice but to slowly shift from largely book-based research to online, as well as largely digitize the rest of the practice of law.
Massachusetts Rules of Professional Conduct
In 2015, the Massachusetts judiciary incorporated a recent amendment the American Bar Association or ABA had made to its Rule 1.1. The new Comment 8 to both the ABA and the Massachusetts Rule 1.1 reads: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology …”
The expectation of technological literacy in this court-adopted ethics rule is strong evidence that the reasonable duty of care in the delivery of legal services includes the competent, appropriate incorporation of technology to every client’s benefit. In addition to legal research, technology has exploded in many other aspects of practice:
- E-discovery: The process of mutual requesting and release of evidence in electronic format between parties to a lawsuit
- E-filing: Submission of lawsuit documents to a court via electronic means
- Client document storage: Documents in a client’s file that historically were only on paper may now be electronically stored, raising issues of security and confidentiality
- Internet websites, including social media: Publicly available information about witnesses, jurors, clients, parties and other information relevant to the legal matter at hand are routinely researched online
- Courtroom presentations: Lawyers present cases in trial using technological means and evidence may be introduced and used in digital format
- Electronic communication: Email and texting must be used in the practice of law carefully to preserve client confidentiality
- And others
If a lawyer’s electronic incompetence harms a Massachusetts client such as by missing a deadline, overlooking important evidence, revealing a client confidence, not finding an important case or statute during research, or through other professional lapse, and the act harms the client, the client should seek legal advice. An attorney who regularly represents people in matters of legal malpractice will be up to date about the most current law regarding the interaction of technology and a lawyer’s duty of reasonable professional care.
From their office in Worcester, the attorneys at Phillips, Silver, Talman, Aframe & Sinrich, P.C., represent people across the commonwealth in legal malpractice claims against their former lawyers.