Guidelines for Practicing Ethically with New Information Technologies

While their findings are certainly not binding in the US, the Canadian Bar Association's "Guidelines for Practicing Ethically with New Information Technologies" is a superb resource.

The Guidelines are a supplement to the CBA's Code of Professional Responsibility. They were published in September of 2008.

The Guidelines start with the admonition that the Canadian Competency rule specifically requires, "The lawyer should also develop and maintain a facility with
advances in technology in areas in which the lawyer practices to maintain a level of competence that meets the standard reasonably expected of lawyers in similar practice circumstances."

The Guidelines continue with specific recommendations on Confidentiality, Encryption, Privilege, Electronic Storage, Retention, and Deletion, Metadata, Security, Marketing, Accessibility, Service Delivery, Intellectual Property and Software, Electronic Legal Research, and Participation in Online Discussions.  As if that is not enough, three appendices are included covering Resources, Metadata, and Information Technology Security.

It is an ethics body to give such specific content to such an emerging important topic as technology.  My only reservation is that how does an organization keep it up to date in such a dynamic area?  The answer the CBA seems to have fallen to is to discuss not specific technologies but general categories.  Thus instead of talking about the use of Facebook or Twitter, the Guidelines speak of "Online Discussions" which "can take the form of postings and comments to blogs, law blogs (“blawgs”), wikis, chat rooms, Internet forums, list serves, social media, and other electronic forums and media."  The Guidelines speak to specific ethics rules typically implicated, in the case of Online Discussions, client confidentiality; unintended formation of client relationships (see definition of; and conflicts of interest.  Finally, the Guidelines provide a more detailed "Best Practices" analysis.

One can quibble that the analysis tends to be general, but it is difficult to see how one could possibly make Guidelines that were more specific without having to revise them constantly.  In the final analysis, any work trying to coral technology will always be subject to quick obsolescence as the frenetic march of technological improvement continues.  This is certainly the best stab by any disciplinary organization at quantifying how technology impacts legal ethics.  I applaud the CBA for their work and strongly suggest that lawyers and professional responsibility organizations consult the "Guidelines for Practicing Ethically with New Information Technologies" for guidance and perhaps even some inspiration.

- Peter H. Berge

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