There is no doubt that big data and analytics are vastly changing how lawyers conduct legal research and discovery, predict matter outcomes, select juries and draft contracts, reduce back-office costs and help land new clients. But for lawyers, who are bound by rules of legal ethics, the use of analytics has also raised ethical concerns related to issues such as confidentiality, communication, records and supervision, as well as questions surrounding privacy and security.
Lawyers need to keep in mind that even with new technology tools, professional conduct rules – like protecting client confidences – still apply, says Renee Knake, professor of law and Doherty Chair in Legal Ethics at the University of Houston Law Center. “As technology tools proliferate, lawyers should not only be ethically obligated to at least familiarize themselves about advantages and disadvantages in their adoption and use, but also to communicate with clients about this,” she says, pointing out that Comment 8 to ABA Model Rule 1.1, which governs the duty of competence, was amended in 2012 to require that lawyers keep up with relevant technology. “I can see that being extended to include an obligation to communicate with clients about whether their case could be improved by using predictive analytics,” she says.
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