Login | May 08, 2024
Is there a “duty to Google?”
RICHARD WEINER
Technology for Lawyers
Published: April 15, 2022
Hopefully by now you all know that you have a duty to keep up on technology as an integral part of your ethical duties to your clients.
Under ABA ethics rules, competence with technology is part and parcel of legal competency to serve your clients. That competency includes the obvious proper use of technology––the duty to secure client electronic data and other personal information, for instance––and to use technology best practices in representing clients.
But when that technology is merely an access point to other information, i.e. a search engine, do you have a duty to use that access point to find information relevant to your case?
Is using Google to look up public information the same as using technology to secure client data or to conduct legal research?
Public online research can be used in a number of ways—from finding witnesses, to social media posts, to public records searches, to oppo research, to researching your own clients, and much more.
Interestingly, the ABA has never spoken on this issue.
A duty to use the internet to obtain public information is not specifically a part of the ABA’s definition of competence under Model Rule 1.1 and its comments, or in FRCP Rule 11’s duty to investigate. And the many cases dealing with the issue are all over the map, although courts have long recognized “duty to Google” as a concept.
There is, in fact, no guidance on what specific technology one must use to do ascertain all of the facts of a case.
One legal scholar has some suggestions to codify this process. Michael Thomas Murphy, writing in the Journal of the Association of Legal Writing Directors webpage, suggests a codified duty to Google—using the phrase “Duty of Technological Use in Investigations” as a general term for the duty to electronically access public information on the internet.
His proposed language would read “something like:”
“Competent handling of a particular matter includes a reasonable investigation of the factual circumstances surrounding that matter, including the competent use of common electronic search technology.”
The comment section would then go on to define those terms.
Seems reasonable to me.
Guess the next move is the ABA’s, or state bar associations’.