Editor’s Note: The author of this article is a professor at the University of Houston Law Center. She is the co-author of a casebook, Professional Responsibility: A Contemporary Approach, and numerous scholarly law review articles.
By Renee Knake, Professor of Law, University of Houston Law Center
Big data analytics are changing how lawyers find clients, conduct legal research and discovery, draft contracts and court papers, manage billing and performance, predict the outcome of a matter, select juries, and more. Ninety percent of corporate legal departments, law firms, and government lawyers note that data analytics are applied in their organizations, albeit in limited ways, according to a 2015 survey. The Legal Services Corporation, the largest funder of civil legal aid for low-income individuals in the United States, recommended in 2012 that all states collect and assess data on case progress/outcomes to improve the delivery of legal services. Lawyers across all sectors of the market increasingly recognize how big data tools can enhance their work.
A growing literature advocates for businesses and governmental bodies to adopt data ethics policies, and many have done so. It is not uncommon to find data-use policies prominently displayed on company or government websites, or required a part of a click-through consent before gaining access to a mobile app or webpage. Data ethics guidelines can help avoid controversies, especially when analytics are used in potentially manipulative or exploitive ways. Consider, for example, Target’s data analytics that uncovered a teen’s pregnancy before her father did, or Orbitz’s data analytics offered pricier hotels to Mac users. These are just two of numerous examples in recent years where companies faced criticism for how they used data analytics.
While some law firms and legal services organizations follow data-use policies or codes of conduct, many do not. Perhaps this is because the legal profession was not transformed as early or rapidly as other industries, or because until now, big data in legal was largely limited to e-discovery, where the data use is confined to the litigation and is subject to judicial oversight. Another reason may be that lawyers believe their rules of professional conduct provide sufficient guidance and protection. Unlike other industries, lawyers are governed by a special code of ethical obligations to clients, the justice system, and the public. In most states, this code is based in part upon the American Bar Association (ABA) Model Rules of Professional Conduct, though rules often vary from jurisdiction to jurisdiction. Several of the Model Rules are relevant to big data use. That said, the Model Rules are insufficient for addressing a number of fundamental ethical concerns.
At the moment, legal ethics for big data analytics is at best an incomplete mix of professional conduct rules and informal policies adopted by some, but not all law practices. Given the increasing prevalence of data analytics in legal services, lawyers and law students should be familiar not only with the relevant professional conduct rules, but also the ethical questions left unanswered. Listed below is a brief summary of both, followed by a proposed legal ethics agenda for data analytics.
Lawyer Ethics Rules Relevant to Big Data Analytics
Communication. ABA Model Rule 1.4 requires lawyers to communicate with the client, which includes the duty to “consult with the client about the means by which the client’s objectives are to be accomplished;” “keep the client reasonably informed about the status of a matter;” and “promptly comply with reasonable requests for information.” The duty to communicate means lawyers must inform clients when their personal data is used for analytics analysis as well as when data analytics are used to make decisions about how the client’s objectives will be achieved.
Competence. In 2012, the ABA amended Comment 8 of ABA Model Rule 1.1 on Competence (now adopted by over 20 states) to require that lawyers “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” This includes the preservation, control, and distribution of electronic, digital information. A 2015 opinion from the State Bar of California states that minimum competence in litigation demands “a basic understanding of, and facility with, issues relating to e-discovery,” and that “obligations under the ethical duty of competence evolve as new technologies develop.” New York mandates e-discovery competence. Bar authorities are likely to expect similar competence for other uses of big data analytics.
Confidentiality. ABA Model Rule 1.6 protects confidentiality of all information related to the representation of a client, including client data, and Comment 18 urges lawyers to consider state and federal laws on data privacy and notice requirements. While not an explicit rule of professional conduct, attorney-client privilege is an evidentiary principle recognized by all US jurisdictions.
Marketing. Data analytics from social media and search engines can lead to new clients, for example mass tort, personal injury, or even criminal matters. (At least one jurisdiction, Ohio, has approved the use of police records data to text message potential clients). Model Rule 7.1 prohibits lawyers from making false or misleading statements about their services. Model Rule 7.2 governs permissible advertising and Model Rule 7.3 covers solicitation. A number of jurisdictions adhere to more extensive advertising and solicitation rules. This patchwork of restrictions presents difficulties for lawyers wanting to amass analytics across jurisdictions.
Record Preservation and Return. Lawyers hold a duty to maintain and preserve client records, including data analytics, as well as to deliver them promptly upon request, under Model Rule 1.15. Furthermore, Model Rule 1.16 specifies that upon termination of a representation, the lawyer must promptly return all papers and property, again including personal data, to which the client is entitled.
Supervision. Model Rule 5.3 contemplates that lawyers may receive assistance from nonlawyers, including experts on data analytics. The Rule obligates the supervising lawyer to ensure that nonlawyers adhere to the lawyer’s professional conduct obligations. Lawyers must provide instruction about ethical obligations, and they are responsible for the nonlawyers’ work product.
Questions Unanswered by Lawyer Ethics Rules
Access/Ownership. Who owns the original data — the individual source or the holder of the pooled information? Who owns the insights drawn from its analysis? Who should receive access to the data compilation and the results?
Anonymity/Identity. Should all personally identifiable or sensitive information be removed from the data? What protections are necessary to respect individual autonomy? How should individuals be able to control and shape their electronic identity?
Consent. Should individuals affirmatively consent to use of their personal data? Or is it sufficient to provide notice, perhaps with an opt-out provision?
Privacy/Security. Should privacy be protected beyond the professional obligation of client confidentiality? How should data be secured? The ABA called upon private and public sector lawyers to implement cyber-security policies, including data use, in a 2012 resolution and produced a cyber-security handbook in 2013.
Process. How involved should lawyers be in the process of data collection and analysis? In the context of e-discovery, for example, a lawyer is expected to understand how documents are collected, produced, and preserved, or to work with a specialist. Should a similar level of knowledge be required for all forms of data analytics use?
Purpose. Why was the data first collected from individuals? What is the purpose for the current use? Is there a significant divergence between the original and secondary purposes? If so, is it necessary for the individuals to consent to the secondary purpose? How will unintended consequences be addressed?
Source. What is the source of the data? Did the lawyer collect it directly from clients, or is the lawyer relying upon a third-party source? Client-based data is, of course, subject to the lawyer’s professional conduct rules. Data from any source should be trustworthy, reasonable, timely, complete, and verifiable.
A Legal Ethics Agenda for Big Data Analytics
The legal profession has an important role to play not only in how it uses data analytics to better serve clients and the public, but also in how society establishes data-use rules, standards, and norms throughout all aspects of daily life. Bar associations should consider adopting uniform rules or promulgating model, best-practice policies on legal ethics for big data. Similarly, all lawyers should develop and implement data-use policies to address the relevant professional conduct rules as well as the broader ethical concerns highlighted here.