Data breaches undermine the hallmarks of the legal profession: Confidence, privacy, trust, professionalism and integrity.

I saw articles about law firms being hacked with their data being breached through hackers or unlawful/unauthorized users. What does that mean for the legal profession?

Samuel C. Stretton.

It should be a wake-up call for the legal profession with resulting changes, though probably the changes will not take place. Breaching privacy or what is called the attorney-client privilege is one of the most serious disciplinary violations. A breach of attorney-client confidence or repeated breaches can result in very serious discipline, including major suspension or disbarment.

The articles in the Legal Intelligencer over the last several weeks were very upsetting. There was references to hacking of and security issues in major law firms and suggestions that there is regular hacking, misuse or seizure of confidential information from more firms that aren't even reported.

This writer in the past has often mentioned that lawyers should not be texting or emailing with their clients. Nor should their clients do the same with the lawyers. The reason is that no one can guarantee confidentiality. Most attempts at encryption are oftentimes unsuccessful and normally can be broken into by computer experts very quickly. Doctors are forbidden to text or email anything confidential to their patients and vice versa, patients are forbidden to text or email confidential information to their doctors for these very reasons.

The legal profession has always strongly enforced client privacy and confidentiality under Rule 1.6 of the Rules of Professional Conduct. Yet the legal profession ignores or turns a head when there are these major breaches. These breaches should result in serious prosecution with members of law firms facing substantial discipline for allowing breaches to occur or, in other words, not preserving the confidentiality of their contacts with clients.

One or two things have to happen. Either lawyers learn to encrypt properly all communication done electronically or they should stop using modern technology for communicating at least on matters of confidentiality. The Rules of Professional Conduct must also be changed. The rules need to be changed because of the infusion of modern technology into the practice of law. The practice of law would be almost unrecognizable to someone who stopped practicing in 1988 and then only recently returned. Modern technology has affected every part of the practice of law, but the Rules of Professional Conduct have barely kept up. Perhaps the rule of confidentiality has to be rewritten, changed, modified or weakened. But weakening the rule of confidentiality would have very serious consequences for the legal profession and could undermine the need for clients to be able to communicate in confidence with their lawyers.

What everyone seems to ignore is the obvious. Although modern technology is a wonderful thing in many ways. Modern technology allows easy and frequent communication with clients. This technology can reduce overhead, etc. But it also has a terrible downside if there is no guarantee of confidentiality.

If privacy and confidentiality are important aspects or almost a hallmark of the attorney-client relationship, how can lawyers continue to use technology that doesn't work when it comes to confidentiality? Perhaps the rules have to allow changes where a client can consent to less than secure ways of communication. That would not be a recommended course, but the way the world is going right now in terms of technology being intercepted, it does appear to be a more realistic way to at least protect the lawyer if confidentiality is broken.

Presently there is no prosecutions for lawyers emailing on confidential matters or texting. Perhaps there should be. The thing that will undermine the legal profession is to have strict rules of confidentiality, but no enforcement of and a turning of the head when the use of modern technology cannot provide confidentiality and privacy. Either the Rules of Professional Conduct have to change and weaken the attorney-client privilege or there has to be serious prosecutions for lawyers who email, text, store things on clouds, all of which can be breached apparently fairly easily, at least if the Legal Intelligencer articles are to be accepted. Either the rules are followed or they have to be modified. If technology, as good as it is in many ways and helpful in terms of communication as it can be, doesn't work or can't be protected, then it can't be used.

There should be a committee established to recommend changes to the Rules of Professional Conduct. The committee should review whether or not the modern rapid increase of electronic files, cloud-based storage, communications by email or other modern forms are acceptable or not and whether or not there is any reasonable way the client can be protected. These are issues that have to be resolved now as technology rapidly increases. The legal profession cannot just be driven by technology and its advances. The hallmarks of the legal profession are ones of confidence, privacy, trust, professionalism and integrity. If those can't be maintained, then the legal profession will go in severe decline and become just another business-oriented occupation.

The use of ads and an influx of lawyers in Pennsylvania have dramatically changed the profession.

Is there one or two things that you can pinpoint that dramatically changed the legal profession in the last 25 to 30 years?

One of the most major cultural changes in the legal profession was the advent of legal advertising. As most lawyers know, up until the U.S. Supreme Court decision in 1977, lawyers were prohibited from advertising their skills or business. Since 1977, advertising has been allowed as consistent with the First Amendment. All kinds of advertisements have taken place over the years. These include not only advertisements in old phone books, magazines or newspapers. These include ads displayed electronically, on billboards and on social media sites such as Facebook. Legal advertisements have created a whole new business where law firms and lawyers spend large sums of money advertising their firm and their skills.

The effect of these advertisements can be devastating. Between direct mailing and massive advertisements in newspapers, billboards, buses, transit stops, lawyers get business through use of advertising, often at considerable expense.

Why is that bad? The original purpose for allowing legal advertising in addition to it being consistent with the First Amendment with limitations, was to make legal services more readily available to the client. Clients would then become aware of other lawyers who were available and become aware of a different range in legal fees. The purpose was to give clients options. But this purpose has long since vanished with modern legal advertising.

In fact, reviewing many of the legal advertisements, many of them are false or misleading. The Office of Disciplinary Counsel doesn't police advertisements unless they are bought to their attention, since the office doesn't have the resources or people to follow every advertisement. Looking at advertisements, they often use the word "specialize" or "expert," words that are not allowed. Some advertisements are almost referral mills. Some advertisements equate lawyers to going to battle. Advertisements talk about skills and lawyers when perhaps the entire firm might not have had more than 10 or 15 jury trials.

The use of advertisements has changed the nature of the legal profession. The reason is because lawyers don't have to be involved in the community like they once were to get business. When this writer first started practicing law, one got clients in several ways. First, by developing good skills as a lawyer and getting known. Word of mouth of clients and other lawyers started to bring in legal business. Second, a lawyer had to get involved in community activities. Lawyers often were committee people in a political organization and many times would also run for office. As a committee person or candidate, they got to know many, many people. Also, being involved in politics, they would represent individuals on behalf of the ward leader or party chairman. That assured that these lawyers would have good people skills and be in court regularly. Further, lawyers would be very active with service clubs. Lawyers would be active in their church, often on the board of the church or synagogue or involved with the board of trustees or fundraising campaigns. Lawyers also would often be involved in their local civic or community organizations.

In other words, a lawyer, as a professional, would be deeply involved with his community. The lawyer would use his skills and expertise to better the organizations and the community. At the same time, people would get to know the lawyer. All of this would generate clients.

As a result, the legal profession was full of lawyers who were involved in every aspect of their life from church, coaching a sports team, running for office or being a committee person, or heading the local civic association.

This kind of involvement would generate a fair amount of business and telephone calls. It would make the lawyer a much better well-rounded person who was deeply involved in his community and giving back and, at the same time, would enhance their professional skills because of their wider knowledge of the community. This would also enhance the lawyer's people-relating skills and speaking skills.

A lawyer doesn't have to be involved in the community anymore. They need to have a good advertising campaign, a good advertising consultant—and money. After that, there is no longer any reason to be involved in the community. Further, the money spent on advertising can quickly corner the client market.

The other change is the surging influx of lawyers in Pennsylvania. Originally that was thought to be a good thing because it would make lower-cost legal services available to everyone. But it really hasn't worked that way. There are low-cost lawyers, but most of them don't have the skills or training to be representing people in serious matters. When young lawyers are trying major felonies and murder trials for $1,000 to $2,000, obviously, there is a real problem. Because there are so many lawyers out there competing for very limited business, the professionalism side of law starts to disappear more and the business side asserts itself.

Advertising and overpopulation of lawyers pushes lawyers to become almost business hucksters. Law is becoming no more than peddling their skills. This demeans the profession in many ways.

Both have resulted in radical change in the legal profession. Lawyers don't have the same community-minded spirit and you don't have the same camaraderie. Finally, lawyers don't have the same sense of legal history. It's a business, getting business is by money and advertisement and not by commitment to the community or the profession.

Both of these major changes, i.e., advertising and a huge increase in the number of lawyers practicing law, were once thought to make the profession better and make legal services more readily available. This does not work well. What it has done is changed the nature of the legal profession to the point that when the current older generation of lawyers passes away, there will be no sense of the professionalism other than what is good for business. When that occurs, the modern practice of law will no longer be consistent with the past history and traditions of the legal profession. The profession will become just another business whose real goal is to make money.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.