7 Jul 2008 in Information Integrity, Legal Perspective
The Past is a Foreign Country:Old Rules+New Technologies = Surprising Risks
L.P. Hartley, the English author, once memorably wrote that “The past is a foreign country; they do things differently there.”
I am not yet old enough to collect Social Security retirement benefits. When I attended law school and entered into the practice of law, people appearing to talk to themselves as they walked down the street were considered deranged; Bluetooth was a temporary dental problem resulting from eating fruit; Blackberries were a fruit; Google was the misspelling of a very high number; cells were places in jails where criminal clients were detained; Shepardizing a case involved red paperback books; and Spam was a canned pink gelatinous substance that pretended to be meat.
The past is a foreign country or Old Rules+New Technologies = Surprising Risks
L.P. Hartley, the English author, once memorably wrote that “The past is a foreign country; they do things differently there.”
I am not yet old enough to collect Social Security retirement benefits. When I attended law school and entered into the practice of law, people appearing to talk to themselves as they walked down the street were considered deranged; Bluetooth was a temporary dental problem resulting from eating fruit; Blackberries were a fruit; Google was the misspelling of a very high number; cells were places in jails where criminal clients were detained; Shepardizing a case involved red paperback books; and Spam was a canned pink gelatinous substance that pretended to be meat.
In short, when I first became a member of the legal bar, there were no smart phones, personal computers, laptops, iPods, webinars, OCR scanners, iPhones or other multi-purpose Internet connected wifi enabled handheld media devices. In fact, there were very few copying machines—primarily made by Xerox. Life was slower when we relied upon landline telephones, teletypes, typewriters (IBM Selectrics if you were fortunate) and documents were duplicated by using carbon paper and mimeograph machines. Briefs were produced on large temperamental mechanical things run by human printers with inkstained fingers. C-Span did not exist, and we attended Congressional hearings and watched floor debates from the galleries. When doing so or when in court, we carried pockets of change to use in public phone booths. There were no websites, electronic filing, e-discovery of court dockets, and court opinions could not be immediately retrieved, but were distributed in printed format on paper – what we now call “hard copy.”
Today, I use an artificial intelligence based email bot to manage my three or four overstuffed electronic mail boxes, on-line social networking and blogs for marketing, and several collaborative virtual workspaces to increase productivity. Innovative information and communication technologies have transformed the professions of law and accounting, contributing to the astonishing growth in the average size of firms, while generating significant problems of professional responsibility. The search for new business has generated solicitation practices involving Facebook and My Space that would have been unimaginable just five years ago.
The rapid speed of innovation and adoption of emerging technologies has not enabled harried Certified Public Accountants, nor attorneys or State associations governing these professions, to give thoughtful consideration to the ethical risks and implications for professional responsibility of using these technologies. Related policy often is being made one malpractice suit and fee dispute at a time. A quagmire of Internet ethics laws, opinions and guidelines complicate the ethical dilemmas created by creative use of technology in the professions of law and accounting and by business clients. Jurisdictional differences and areas of specialization complicate matters considerably.
It may seem that Codes of Professional Responsibility still live in the past, while here and now we do things very differently. However, avoiding problems -- including malpractice claims and misconduct under professional standards regarding Competence, Diligence, Reasonable Fees, Confidentiality of Information, Supervision of Subordinates, Communication and Advertising --
does not need to be difficult if one remembers that we now create clear, discoverable digital records of everything -- even things we wish to keep private—and that at best existing technology specific rules provide only MINIMUM standards for 20th Century tools, not guidelines for best practice.
Avoiding misconduct and maintaining client trust require professionals to apply the old principles of professional conduct with current knowledge of how digital tools work. Work in cyberspace is indeed like practicing in a foreign country with a different culture and distinct requirements, however, several simple questions can help professionals fulfill their duties under long standing Codes of Professional Responsibility despite the absence of specific guidance.
In future postings we will discuss how to avoid nasty suprises and manage the risk associated with doing things differently in cyberspace. Join us to explore what one needs to know, to understand, and how to act ethically in the digital age. In the meantime we suggest you begin by asking a series of basic questions before adopting new technology, such as:
1. Do I understand the basic functions of how it works?
2. How might my clients’ interests or rights like data protection be jeopardized by using this tool?
3. What are the good and bad aspects of my adoption of this tool?
4. What does it replace or improve upon, a person, social interaction or an older technical solution?
5. How much control do we have? Are we able to control use of the tool, or is it inherently uncontrollable or insecure? Could it end up controlling our time rather than saving it?
6. What place could and should this technology have in my professional life? Does it make me, my employees or my clients better off?
7. What will we accomplish by using this technical solution? How will we evaluate it? What measures will we use and what data do we need to collect to assess its value to our clients and our staff?
8. What professional standards might apply to our use of this tool?
9. Who requires training in the use and risks of implementing this tool?
10. What else do we need to know in order to ethically deploy this tool?
What other or different questions help you make decisions about working in cyberspace with digital assistance?
GM
