There's a 70 Percent Chance You're Incompetent, Survey Suggests
In the opinion of Sam Glover, founder of Lawyerist, there's a 70 percent chance that you're incompetent and unfit to represent your clients. That's a pretty bold statement.
According to a recent 2015 ABA survey of legal technology, only 35% of lawyers actually employ email encryption -- a number that has remained constant for fours years. This is true even taking into account increased awareness of the need for heightened diligence in security amongst business professionals.
Confidentiality Statement = Useless
The survey revealed that when asked what security measures they used when sending confidential or personal information to clients via email, 70.7 percent of lawyers responded that they rely on the confidentiality statement appended at the end of the message body. "I simply don't understand the logic of this," says Law Sites founder, Robert Ambrogi. "If the confidentiality statement is inside the email, then by the time anyone sees it, they've seen the email. It is akin to putting a note inside a box that says, "Do not open this box."
Ambrogi's point is rather humorously made through a demonstration. Suppose I state, "This link is privileged." The fact that the reader was able to read beyond the first sentence of the resultant post proves rather effectively that disclaimers are essentially rendered useless by the click of one's index finger.
Using an Unknown I Encryption
It turns out that of the lawyers who actually use encryption, about third of them cannot even say what kind of encryption they actually use. The numbers don't reflect well on solo practitioners, though.
Only 25% of SPs use email encryption to protect client confidential communications, while the percentages climb higher the more populous the law firm becomes. To that end, more than 50% of lawyers who work in firms of 500 attorneys or more use email encryption. Though this is encouraging, it does underscore the profession's embarrassing lack of fluency in this most crucial (and potentially devastating) of areas.
You're Obligated to Be Tech Saavy
In the opinion of Sam Glover, it is the duty of every lawyer to be technologically competent as well as competent in the law. In fact, this has been explicitly made clear by the ABA (commence the groans) in comment 8 to Rule 1.1 of the ABA Model Rules of Professional Conduct. In California, a Proposed Formal Opinion Interm No. 11-0004 would essentially require attorneys to shape up, technology competence-wise. The proposed opinion specifically mentions comment 8, interestingly.
There is a very good chance that you have been flying under the radar of professional ethics. Relying soley on the disclaimer footer that attorneys have so casually taken for granted may no longer be an available luxury. It should never have been the standard practice in the first place.
Related References:
- You Already Have an Ethical Obligation to be Technologically Competent (Lawyerist)
- What Should Your Law Firm's Website Disclaimer Say? (FindLaw's Strategist)
- That Disclaimer at the Bottom of Your Email is Unenforceable, Lawyers Say (FindLaw's Strategist)