This is part of the Ethics Committee’s regular series of Ethics Minutes for federal litigators and others – what to watch out for, what to do and what not to do. Let us know what you think! Have an idea for a future Ethics Minute? Reach out to us!

The Curtain Rises

You are very excited to be updating your office by installing “smart speakers” throughout the office.  You’re not really familiar with the capabilities of these devices, but install them in your personal office and conference room. Leaving them on throughout the day is very convenient, as you can call clients or play music without pressing any buttons. All you have to do is say the “wake word” and it does what you ask. Magic!  But you’ve also read of some glitches that can happen, where smart speakers have seemed to record and share conversations without being commanded to, or appear to have misinterpreted other sounds as wake words.  Should you be concerned?

The Moral of the Story

Installing technological devices in your office without fully understanding how they work and how best to use them in your law practice could violate your duty of competence. Comment 8 to Model Rule 1.1 requires attorneys to keep up with changes in law practice “including the benefits and risks associated with relevant technology”.  A majority of state bars (36 and counting) have added a technological component to the duty of competence. Some states such as North Carolina and Florida have added a mandatory CLE component for technology as well. This makes understanding how smart devices work essential before installing them.

There also could be implications regarding confidentiality related to smart devices. Lawyers are required to keep client information confidential, including “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” (Model Rule 1.6(c)). As comment 18 to the Model Rule notes, the attorneys’ duty of competence extends to acting competently to preserve confidentiality. You cannot take reasonable precautions to avoid inadvertent disclosures unless you understand how these devices work.

A recent Washington Post report found an Amazon Alexa kept recordings of anything said after its “wake word” but sometimes recorded when the “wake word” was not said. Familiarizing yourself with the device privacy settings is a good first step to prevent inadvertent disclosures. There also may not be a way to stop these recordings on some devices. On devices that do not allow you to stop the recordings, the safest way to prevent inadvertent disclosures is to ensure “smart devices” are turned off when you are discussing confidential client information.

If you work from home, you also should be aware of any “smart devices” in your home that could inadvertently record client data (these capabilities are not just limited to speakers). Regardless of what new technology you use in your office and home, the bottom line is to know how these devices work before incorporating them into your law practice to avoid violating ethics rules.

Ethics Minutes” are for your general information and do not constitute legal advice.  The rules, ethics opinions and disciplinary cases in particular jurisdictions vary, and might result in an outcome different from the scenarios that are described here.

Nicole Kolinski is an attorney for the Architect of the Capitol Office of General Counsel. She serves on the FBA’s Ethics Committee, and is the Secretary for the Capitol Hill Chapter. The above reflects the views of the author and do not represent the position of the Architect of the Capitol, legislative branch or any government agency.