Ethics Question of the Month - June 2022
I Still Haven’t Found What I’m Looking For
Attorney Alfred is an experienced and respected litigator who has been practicing law for over 50 years. His courtroom skills are widely praised, and his age has not diminished his abilities.
He recently lost a trial for an insurance company client. The key issue in the litigation was whether the insured was aware of the claimed injury before the insurance policy was executed. If so, it constituted a preexisting condition and was therefore excluded from the policy. His opposing counsel, an equally skilled trial lawyer, successfully argued that the insurance company had no evidence to contradict the insured’s testimony that his injury occurred after the inception of the policy.
After the judgment was entered, the claims adjustor assigned to the case prior to trial came under attack for failing to correctly assess the risk on this case. Motivated to investigate more of the facts than what were introduced at trial, the adjustor did a deep dive on the internet regarding the case. Several potentially relevant facts were discovered:
- The insured had posted information about the injury on a public social media site three weeks before the inception of the policy.
- During the trial, the insured’s counsel was administratively suspended by the State Bar for failure to pay bar dues on time and therefore should not have been permitted to try the case.
- One of the jurors had a previous bad experience with an insurance company and, at the time of trial, was hosting a website disparaging the insurance industry.
When the claims adjustor confronted Alfred about why he did not use these facts – available on the internet -- at trial, Alfred responded that he has practiced law successfully for many years without the internet and does not use it now, especially since he is not on social media or other sites from which the adjustor discovered this information. He further explained that he would be reluctant to rely on the accuracy of any information posted on the internet.
Which, if any, of Alfred’s actions likely violated his ethical obligations to his client?
- Failure to perform an internet search on the opposing party
- Failure to perform an internet search on opposing counsel
- Failure to perform an internet search on the jurors
- A and B only
- A, B, and C
- None of the above
Rule 1.01 of Texas Disciplinary Rules of Professional Conduct requires that attorneys provide competent and diligent representation. In 2019, the Supreme Court of Texas revised Note 8 to Rule 1.01 to make clear that competence includes technological competence. The relevant portion of the amended Comment now reads: “Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology” [emphasis added]. Texas is one of 40 states to have adopted this new duty tech competence.
Across the country, courts have required attorneys to be familiar with various aspects of technology, such as secure electronic communications, spam filters, e-filing, document creation/management software, and e-discovery. Lawyers have been disbarred from bankruptcy courts for failing to become proficient in e-filing and have been sanctioned for discovery deficiencies stemming from their lack of knowledge of e-discovery.
In the 2021 case of Rollins v. Home Depot USA, Inc., No. 20-50736 (5th Cir. 2021), the Fifth Circuit denied a Texas plaintiff attorney’s attempt to gain a new trial after summary judgment was entered against his client because the lawyer’s e-mail system placed the notice of that summary judgment in a folder he failed to monitor. The court described the resulting failure to file any opposition to the motion “a cautionary tale for every attorney who litigates in the era of e-filing.”
Likewise, a lawyer’s duties include conducting case investigations using social media and other online platforms. In Griffin v. Maryland, 192 Md. App. 518 (2010), the court noted that searching social media had become “a matter of professional competence.” In Cannedy v. Adams, 706 F.3d 1148 (9th Cir. 2013), the Ninth Circuit found that a criminal defense lawyer’s failure to make use of social media evidence constituted ineffective assistance of counsel. Researching jurors online has become so widely accepted that many ethics opinions approve the practice, including ABA Formal Ethics Opinion 466 (2014). And even some judges – such as U.S. District Judge Rodney Gilstrap of Texas – have adopted standing orders on how to do so ethically.
Here, a routine social media search would have revealed opposing counsel’s inactive law license as well as the useful statements made by the juror and the opposing party. When practicing in the Digital Age, attorneys must adhere to their ethical obligation to provide competent representation. For lawyers like Alfred – who refuse to use or distrust online resources – they have three choices: educate themselves, hire someone who is technologically proficient, or refrain from accepting an engagement that would require such proficiency. The best response is E.