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Information Technology And Professional Misconduct

Introduction to Technological Developments

If the world had to single out any profession, in the area of lagging behind in technological advancements, it would have been the legal professional. These practitioners of this profession were known for their love towards documenting the papers and their inclination towards reading books. The process of adaptation of the method of communicating through emails required the industry to consume many years. However, in the recent past, it can be observed that the legal professional have embraced all the possible technological developments, and enabled themselves to explore the potential to a maximum level. This adaptation has been made to an extent that usage of these developments is a necessity in the present era, and non usage of the same may amount to professional misconduct.

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Standards Of Conduct

The paramount duty imposed on all the legal professionals is towards administration of justice and conducting themselves in the best manner in the court. These prevails over each and every obligation which are imposed on the lawyers or solicitors, and can be characterized as extremely broad in nature. However, some of the elements under them require the practitioners to conduct themselves in a manner which provides competent assistance to the courts in undertaking all the processes as well as promote the confidence which shall be placed on the court. All the legal practitioners of the nation shall necessarily be well versed with the Australian Solicitor's Conduct Rules 2015, in order to devoid themselves from involving in professional misconduct. It is specifically required by the rules that the solicitors shall not act in dishonest or disreputable manner, or any such act which indicate towards his/her unsuitability towards for profession (Davenport, 2013). In accordance to Rule 4 every possible effort shall be undertaken by the practitioner which has the potential to avoid compromises in respect to the integrity of the profession as well as the independence. In the case of Halliwell v. Kraft (1990) it was recognized by the court that solicitor's work is often undertaken under extreme pressure situations, which can be result from shorter deadlines, tedious court procedures or appearances and maintaining client relationship. However, it was further held that even after working in such conditions, all the solicitors are subject to the same standards of conduct in their professional capacity. Further, the case of Milera v. Korber (1986) was another judicial comment which upheld the application of the Standard of Conduct, equally on all the legal practitioners of the nation.

In the case of Collie v. Police (2002) it was recognized by the court that maintenance of comprehensive and specific notes in respect to daily dealings is extremely imperative and can be  a component of maintaining standard of conduct. Conducting oneself in an unsatisfactory manner can result into adverse judicial observations, which in turn may leads to a case of professional misconduct. Maintenance of professional integrity occupies to be an imperative place for the practitioners in order to perform in an effective manner. In the case of Hatcher v. Police (2006) the court reiterated that abiding by simple or day to day activities in an efficient manner amounts to adherence by the standard of professional conduct. Some of the mandatory principles which are imposed on the legal practitioners are to preserve the rule of law and administer justice in the most effective manner possible. Every solicitor shall act with utmost integrity and in no circumstance compromise their independence. Further, they are under an obligation to act in the best interest of their respective clients, which in addition require them to provide services which satisfy the quality standards (Orlikowski and et.al., 2016). They shall always conduct themselves in a manner which does hamper trust which the public places on legal services, and in addition, always stay compliant of the legal as well as regulatory obligations. Moreover, the rules also mandate the practitioners to carry on their profession in an effective manner and manage the risks efficiently. This also requires them to apply business prudence which a reasonable practitioner would have in related circumstances.

It can be deducted from the above obligations that one of the primary obligations imposed on the legal practitioners is towards the client. First and foremost, every client has the right to be treated in a fair manner, and receive services which are capable of protecting their interests and administer justice to the maximum extent possible. Moreover, the services shall be competent enough to act in the stipulated manner and make delivery of commitments in a timely manner. In the case of Milera v. Korber (1986), it was held by the court that every act of the legal practitioner which in any way affects the quality of work being delivered or hampers the interest of client shall be be considered as breach of the Standards of Conduct. The insufficiency of efforts from the end of a solicitor, clearly falls within the scope of professional misconduct. This judicial opinion has been reiterated several times, and in context with the advancement of the surrounding circumstances. One of the most important developments has been in connection  with the technological revolution and its relation with the legal profession (Australian Solicitors’ Conduct Rules, 2017). It is important to note that in the modern times, technology plays an extremely instrumental role, to the extent that non-usage of the same, may even amount to professional misconduct. However, before understanding this concept of professional misconduct, it is necessary to understand the importance and varied roles played by information technology in the legal profession.

Inter- Connection Of Technology And Legal Profession

Information Technology or IT has grown significantly over the period  of time. It has made a remarkable impact on the functioning of each and every organization. All the personnel or professionals are devised to the use the IT in making transactions. IT is an system through which people or professionals exchange relevant data at the appropriate time and place. It is a web based system which transmit the message from the sender to the receiver (Aykin, 2016). It has played a crucial role in the success of organization, education, banking industry and rest other field. Its major function is to communicate the information to diverse users. Along with that data management is also done so as to access the information in the later course of action.

The impact of use of IT has also been witnessed on the functioning of legal practitioners. There is a love hate kinship between technology and legal professionals. It has been analysed that numerous of business entities suffered a loss due to the significant growth of online providers. The lawyers are the only ones that has still not been affected by the radical and drastic online revolution. However, it has been assessed that the Australian legal practitioners are at the flap of massive commotion. With the advancement of technology, lawyers are also deemed to make the use of online websites and provide services to the customers via the means of online system.

Nonetheless, there is one greater advantage of IT to the lawyer practitioner. These includes, quick access to all the information and knowledge bases. It can be in any form whether the data is regarding case laws, internal organizational knowledge of legislation.

Information management system and websites integrated micro organization as well as hyperlinking of knowledge. It has a significant impact in the manner the lawyer ascertains and interacts with the key elements or variables of its work (Technology and the law firm of the future, 2015). These technologies has established in such a manner that the Australian lawyers are unaware about its benefits. Moreover, with the high usage of wireless  devices, the information or knowledge is also available through mobile phones. This will forefront the true skills of lawyers.

No matter whatever may be the benefits of IT on the legal practitioners of Australia but it seems to be quite disruptive as well. The current profits or revenue of the prevailing incumbents will be affected negatively. Whilst the agile or fresh start-ups is more likely to seize the market share. The money or revenue made by the legal practitioners using  simple legal activities is more likely to be commoditized (McGinnis and Pearce, 2014). These firms will be stuck between selecting either low volume or high bespoken services. It is a major trouble for the professionals that are stuck in between.

Laws is mainly concerned with collecting information and applying the same. If the activities are commoditized then legal professionals are more at the clemency of factors. These may either be in the form of scarcity, price and sensed value. With the advancement in the technology, these professionals are at the urge to loose a major of their business due the public exposure of information. While on the other hand, there are some legal practitioners that has argue of being immune and safe from the practices may face trouble convincing their clients as well (Lloyd, 2014). Therefore, information technology has a disruptive role or impact on the legal practitioners of Australia.

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After the above discussion on the role of IT and the current need to protect the information, emphasize is being laid to introduce technological standards in the legal field as well. It has been assessed that in the current era technology practices and standards will be made mandatory for all the professionals which will assist in prevent the leakage of information. These standards and regulations will not allow any individual top escape out from any situation. Moreover, implication of such rules and regulations in law practices will effect the operations of lawyers. They will be not allowed to share any information regarding the past acts and personal information of the client to other parties. This will helps in promoting appropriate practices and standards in the nation thereby preventing fraud and other activities prevailing in Australia.

A major example of the same is American Bar Association wherein the Leader has modified its rules related to professional conduct so as to display the real impact of technology in law field (Sheikh, Sood and Bates, 2015). The rule restricts the lawyers of the association to make the use of IT in practices and will imply all the benefits and risk associated with same. However, they are required to ensure that no information shall be leaked in an unauthorized manner.

However, till now on there is no guidance that has been incorporated in Australia regarding technology evolution. Michael William a senior partner at Tobin + Gilbert, has given the warning that legal practitioners will be forced to use technology in regards to practise law. He has also depicted another statement that it is possible that the professional bodies can install certain technologies in future so as to assure that these practices are properly implemented (Peltier, 2016).

From the above discussion, it can be predicted that no matter whatever may be the advantages of IT on different industry but it is more likely to affect the legal practitioners in a negative manner. There will be a time in Australia wherein proper technologies will be installed so as to assure that unauthorized used of information is not made in any field.

Professional Misconduct

As discussed in the earlier section, a highly instrumental and indispensable role is played by information technology in the manner the legal profession of the current time is functioning. It has been imbibed in their practice in such a manner that non-usage of the same may lead to inefficiencies. Hence, these results in turn shall make a compromise on the interests of the clients, which in essence shall be breach of the 'duty of care' towards the clients. It can be implied from the mentioned circumstances that these acts clearly amount to professional misconduct (Vaishnavi and Kuechler, 2015). Certain aspects of the legal profession are so much dependent on technology, that non-usage of the same may result into results which are unacceptable or cannot be relied upon. There are circumstances wherein the concerned aspect of the profession cannot be carried out at all. It is interesting to know that information technology has revolutionized the legal profession both in terms of the cases which are being encountered and the manner in which litigation is being undertaken. The varied aspects of legal profession such as drafting, researching, investigation, documentation, communication and so on, are to a major extent dependent on the    technology. It tends to accomplish the mentioned acts in a speedy as well as efficient manner, and this accounts for one of the biggest gains of information technology. However, it is also attached with certain demerits which are in the form of increasing number of digital crimes (Legal Professional Ethics, 2017). This further imposes an obligation on the solicitors to stay aware of these crimes and be prepared with the concerned defences.

Technology plays an extremely instrumental role, to the extent that non-usage of the same, may even amount to professional misconduct. For instance if a solicitor undertakes investigation and research for a particular case and does not make use of technology in the form of online research, then there exists high probability that the resulting outcome is not adequate and is devoid of some recent incidents/cases which are not available offline. In such a case, the the solicitor has failed to conduct himself in a manner which is in the best interest of the client, and has rather caused harm. This is a clear case of breach of duty of care towards the client, which is imposed by the Standard of conduct, and hence, amounts to a professional misconduct. Therefore, it can be implied from the stated hypothetical example that information technology has been ingrained in the legal processes, and non-usage of the same accounts for insufficient efforts from the end of legal practitioners (De Haes, Van Grembergen and Debreceny, 2013). Moreover, this can also be termed as provision of inadequate services to fulfil the rationale of the case. The rules embodied in the standards of conduct also requires the solicitors to possess all the relevant resources, skills and procedures required in order to carry out the instructions of client in an efficient manner. This further implies that non-application of technology in relevant situations is also a breach of the above mentioned rule. The rationale behind the same is that the legal practitioner by not using technology is not applying adequate resources and skills which he should have to administer justice and act in the interest of client (Shapiro and Varian, 2013). This implies a clear situation of compromising the needs and demands of a client from the lawyer-client relationship, and hence, amounts to professional misconduct.

CONCLUSION

The legal profession and the law firms have ingrained the technological advancements in their processes and procedures. This adaptation has been made to an extent that technology has become indispensable for the legal practitioners to carry out their obligations and duties in an effective manner. Forensic Audits, Data Analysis, Research and administration are some of the specific areas of intersection of the two fields. Non-usage of technology for some of these processes shall not deliver results which match up with the standard quality of work, and would amount to a professional misconduct on part of the legal practitioners. Hence, a highly imperative role is played by information technology in the legal profession.

REFERENCES

  • Aykin, N. ed., 2016. Usability and internationalization of information technology. CRC Press.
  • Davenport, T. H., 2013. Process innovation: reengineering work through information technology. Harvard Business Press.
  • De Haes, S., Van Grembergen, W. and Debreceny, R. S., 2013. COBIT 5 and enterprise governance of information technology: Building blocks and research opportunities. Journal of Information Systems. 27(1). pp.307-324.
  • Lloyd, I., 2014. Information technology law. Oxford University Press, USA.
  • McGinnis, J. O. and Pearce, R. G., 2014. The great disruption: How machine intelligence will transform the role of lawyers in the delivery of legal services.
  • Orlikowski, W. J. and et.al., 2016.Information technology and changes in organizational work. Springer.
  • Peltier, T. R., 2016. Information Security Policies, Procedures, and Standards: guidelines for effective information security management. CRC Press.
  • Shapiro, C. and Varian, H. R., 2013. Information rules: a strategic guide to the network economy. Harvard Business Press.
  • Sheikh, A., Sood, H. S. and Bates, D. W., 2015. Leveraging health information technology to achieve the “triple aim” of healthcare reform. Journal of the American Medical Informatics Association. 22(4). pp.849-856.
  • Vaishnavi, V. K. and Kuechler, W., 2015. Design science research methods and patterns: innovating information and communication technology. Crc Press.
 
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