New legal technology frequently raises ethics concerns. A new Legal Ethics blog covers ethics and, this week, in connection with the ABA TechShow has a focus on legal technology and legal ethics. 

Ben Cowgill is the lawyer-author of Legal Ethics; for this week’s focus on tech and ethics, Ben has assembled a panel of guest bloggers, including me. Reproduced here are my first comments on his blog:

As a proponent of using technology to serve clients and practice law more effectively, I have frequently confronted ethics questions. Examples include e-mail (confidentiality and privilege), interactive advisory web sites based on expert systems (malpractice and unauthorized practice of law), use of application service providers (confidentiality), and performing legal work offshore (confidentiality and privilege).

What is surprising are not the questions but what must bluntly be called two-part knee jerk reactions. First is the immediate claim, typically absent any factual inquiry or ethics research, that the new thing would violate ethics. And second is the failure to assess the ethical risks of the status quo relative to the new thing. For all the early concerns about e-mail, how many lawyers send faxes to hotel front desks for hand delivery to a guest? How many read the disclosure on overnight delivery labels and consider the possibility that the package contents might be viewed by someone else?

Perhaps both the profession and clients would be better served by shifting the burden of proof. The proponent of the new would need only make a plausible argument that the new thing is ethically sound. That would shift the burden of proof back to the nay-sayers, who would win only based on clear and convincing factual and legal arguments. Lawyers may be creatures of the past but robotically following old ways causes its own set of problems (see, for example, The T.J. Hooper).

I hope that others will chime in on Ben’s blog to answer these and other questions.