In this eighth part of our Ethics and the Internet series, we consider ethical issues for business arising out of paperless office environments and virtual legal practice.
Not too many office environments can truly purport to be entirely paperless – but a quickly growing number (including ours!) do purport to be paperless in the sense that they do not keep paper files, scan all paper they receive and shred it unless it is an important original document, and otherwise communicate only electronically unless there is some technical or special necessity for printing.
The many advantages of operating this way include environmental advantages, time saving, space saving and of course significant reduction in stationery expense.
Similarly, virtual legal practices – that is, practices which may not even have an office and which are conducted via computer and may even be entirely mobile – enjoy all of those benefits.
However, there are also significant differences in procedure from that of physical office environments and those which are paper-based, and these differences can present ethical issues.
Let’s look at some specifics.
1. Communications and Courtesy
Electronic communications are almost becoming the norm, and the day may well not be far away when paper forms of communication – even fax – will almost disappear.
For those of us operating in a virtually paperless environment, that day can’t come quickly enough. However, the vast majority of businesses still use paper as a key form of communication, and while that continues to be the case, it may be inappropriate for us to insist upon solely electronic communications.
At this stage, it is submitted that permission to communicate solely electronically should still be sought. It is also submitted that parties with whom you communicate are entitled to expect at least some certainty as to the party with whom they are communicating, and therefore electronic communications such as email should at least involve an email address identifiable with a particular person rather than having only a generic email address such as email@example.com.
Relying solely upon electronic storage and communications involves less and less risk as each day passes because computer devices, communications media and storage are becoming so much more sophisticated and reliable, not to mention easier to use and less expensive to set up.
However, you still have to buy the right things, set them up and maintain them properly and ensure you have excellent backup and disaster recovery procedures. You also need to ensure that you implement and maintain strong IT security measures to ensure that the electronic data you keep is at least as secure as the old paper files that used to sit behind or near you in your file cabinets.
Some of these considerations are unique to electronic storage, but despite the consequently necessary upskilling required, a strong argument can be made that security of electronically stored files is far greater than that afforded to paper files.
We have also mentioned in our earlier instalments in this series some risks and ethical issues associated with some other forms of electronic communication, including their ramifications for confidentiality.
3. Conflict of Interest
Virtual legal practices and others operating solely electronically will differ from physical practices in the manner in which some conflicts of interest may be dealt with.
For example, if a law firm has acted for a party previously, does no more, and is now asked by another client to sue that party, there may be circumstances in which that can still be achieved ethically by effective segregation from any involvement of any staff whose knowledge of the defendant from prior dealings in the firm place them into a position of conflict.
Chinese Walls are difficult to erect if electronic records remain only a click away from those staff members, and they are basically impossible to erect in a virtual practice environment in a manner where they can be adequately seen to have been erected.
Virtual and paperless practices should consider a much darker shade of grey the question of whether they ought act against a former client whose records are still within the practice.
4. Duties to Clients and Other Parties
Some clients and other parties will be quite happy for you to communicate with them solely electronically, but some may not be. This remains an issue that should be agreed upon at the earliest possible time so there can be no miscommunications or assertions of breach of duty.
Contracts also should be scrutinised to ensure that your electronic communications comply with the protocols, if any, dictated by those contracts.
It is worth remembering that although the state and federal Electronic Transactions Acts do provide that something done electronically is not rendered invalid simply because it was not done on paper, those Acts do not have the effect of validating something a contract says is not valid. In many cases the Acts may clarify that electronic communications are okay because they constitute “writing”, but only if the contract under consideration can be so interpreted – the Acts do not change the terms of contracts.
These sorts of issues are issues you owe a duty to your clients and third parties to know.
Also, as stated in earlier posts, the quick and/or informal nature of some of the available methods of electronic communications make it all the more necessary that with each such communication you take a breath and re-read at least twice more (and properly consider) what you propose to send so that you do not unduly risk failing to meet the recipient’s expectations (or indeed their entitlements) in relation to communications protocol and standard of care.
5. Duty to Courts / Authorities
Courts, and some other authorities with which you may from time to time have to communicate, fall into a special category here because they will often have specific rules not only about communications protocols generally, but also specific rules about electronic communications.
It is necessary to be aware of the existence and currency of such rules and to keep up to date with them so as to ensure the effectiveness of your electronic communications with these parties / authorities.
6. Special Privileges
Some professions, such as the legal profession, enjoy certain special privileges in most jurisdictions, such as the ability to witness certain documents or to present certain types of evidence.
Paperless and virtual environments by their very nature enable swift and effective manipulation of electronic information, and many a request has been and will in future be made to shortcut some physical requirement by doing the same thing electronically in circumstances where this would present an ethical problem (or simply be illegal).
A simple (and common) example is the need physically to have witnessed a signature on a document before being able to certify that you have so witnessed the signature. A faxed signature has not been witnessed, but an electronically imposed signature arguably has been if you actually saw it applied.
Some of these questions are difficult to answer and the results are often difficult to reconcile, and there will undoubtedly be development in this area in the very near future particularly with the vast increase in prevalence of electronic media and equipment with which to conduct business.
In the meantime, where exercise of special privileges are concerned, it is best not to flirt with uncertainty.