The Sky Is Falling: If You Aren’t Paperless, Remote Technology Is Useless & You May Not Be Ethically Competent
By Daniel J. Siegel, Law Offices of Daniel J. Siegel LLC
The sky is falling! The sky is falling! I am always being accused of being the Chicken Little of law office technology, always warning attorneys and law firms that they need to use technology and remove the leech of dependency on traditional methods of running their offices. Yes, I know that the Rules of Professional Conduct in Pennsylvania — and many other states — define “competence” to include understanding the risks and benefits of technology. But the only people who listen are the techies or the tech-wannabes.
Well, guess what, the sky is falling. Or at a minimum, it’s pretty grim out there. The COVID-19 pandemic has forced businesses around the world to close or, at a minimum, to have their employees work from home. That edict generally applies to “non-essential” businesses.
Factor in egos, and law firms immediately assume that they are essential, not only essential businesses, but businesses essential to our continued existence. Not according to lots of other people, however. In its emergency declaration, Philadelphia Mayor James Kenney and the City’s Department of Health have stated that “law firms are non-essential businesses and should endeavor to provide legal services remotely, except for when physical access to office premises is necessary to seek emergency relief in court or to assist clients in complying with legally mandated activities that cannot be done remotely.”
Lawyers can ignore the declaration. Or they can prepare to work remotely.
Ahh, there’s the rub.
Working remotely means using technology. Whether it is a laptop computer, the Internet as well as other technology that enables lawyers and others to securely access their office’s networks to do their work, working remotely doesn’t just happen. You have to do “things” to be prepared.
For many, just read some lawyers’ Listservs and you’ll see this, the idea of using remote access technology is as foreign as Parasite¸ the South Korean film that won the Academy Award for Best Picture. So what better time to learn how to use remote access than in a crisis? After all, why plan ahead? Those programs on emergency— and disaster-preparedness won’t happen here, wherever here happens to be.
Here is now.
And learning how to do things under pressure is a terrible way to do it. Because not only do you have to set up your laptop or home PC for remote access, but if you are a solo attorney or have a small firm, you may also moonlight as the firm’s IT department, which means evaluating products quickly and without always doing enough research. Even if lawyers can figure out remote access on the fly, it won’t work very well if their offices are not paperless and they have nothing to access other a client’s phone number and some Word documents that were internally drafted.
There are many excellent products that allow users to remotely access their offices, including LogMeIn, Team Viewer and others. But you have to install the product in your office, which may be a challenge if you can’t get into your office.
In addition, there may be other obstacles. Some older systems might have compatibility issues. Alternatively, using an iPad, tablet or smaller laptop might not be the best way to do work remotely. But of course, it’s difficult to just replace those devices, especially since malls are closed, and if you haven’t set up remote access, you probably don’t know how to properly set up a new computer.
But “What does this have to do with cybersecurity?,” you are probably asking.
Lawyers have an ethical and a legal duty in many states to protect confidential and sensitive information. That means that whatever product you use to connect to your office must be secure, or in other words, encrypted. Encryption is how information is converted into a scrambled and secure code that hides the data’s true meaning. In computing, unencrypted data is also known as plaintext, and encrypted data is called ciphertext.
If your connection isn’t secure or encrypted, anyone can see it, all they need is a little know-how. And if you’re sitting at a Starbucks, and of course no one should be right now, or any place with free Wi-Fi, you’re at risk.
Plus, when times become challenging, that’s when the sleazy underbelly wakes up. And they might sell you a product or offer it for free, but what they are really providing is spyware that allows them to see everything you do, every stroke you make on your keyboard and lots of other information that you are prohibited from disclosing.
The moral of the story is that lawyer’s need to be aware of these cybersecurity dangers, and the best way to do so is to be prepared in advance. Not during a pandemic.
Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, provides technoethical guidance, general counsel services, and Disciplinary Board representation for attorneys and law firms. He is the editor of Fee Agreements in Pennsylvania (6th Edition) and author of Changing Law Firms: Ethical Guidance for Pennsylvania Law Firms and Attorneys (2nd Edition), published by the Pennsylvania Bar Institute. He can be reached at firstname.lastname@example.org.