Illinois Supreme Court Creates Access to Justice Commission

On June 13th, the Illinois Supreme Court announced the creation of the Illinois Supreme Court Access to Justice Commission. This is wonderful news for the ATJ community; as one of the most populous states, increased attention to access to justice issues in Illinois stands to benefit a great many people.

The new commission will, among other things, consider: the adoption of standardized forms to ease the burden of comprehension on pro se litigants; means to increase access to effective and affordable legal aid; increasing access to persons of limited English proficiency; and solutions to the problem of physical access to justice for those in rural or otherwise inaccessible areas.

The commission has been established, and its mission codified, by a new Illinois Supreme Court Rule: Article X. By joining the 26 other states that have established similar ATJ commissions, Illinois has brought us all that much closer to ensuring equal access to justice for all.

WSBA Issues Advisory Opinions on Cloud Computing and Metadata

The Washington State Bar Association recently released two advisory opinions relating to the ethical use of technology in the practice of law. Issued by the Rules of Professional Conduct Committee, these advisory opinions address the use of cloud computing and “metadata” in electronic documents. The complete text of the cloud computing opinion (opinion 2215) can be found here, and that of the metadata opinion (opinion 2216) here.

Cloud computing, as embodied by such applications as Google Documents or Dropbox, is an increasingly important and constantly evolving technology. As such, WSBA notes the impossibility of imposing specific guidelines for the use of cloud computing services. Instead, the opinion invokes the duty of competence, as well as the duties to protect client confidentiality and property, to formulate a general rule: “A lawyer may use online data storage systems to store and back up client confidential information as long as the lawyer takes reasonable care to ensure that the information will remain confidential and that the information is secure against risk of loss.”

Metadata in electronic documents poses a slightly more convoluted problem, as it must address the behavior of at least two interacting attorneys. The advisory opinion posits three hypothetical situations to help illustrate the ethical duties invoked. Distilled, the opinion finds that lawyers, under their general requirement of competence, have a duty to make reasonably sure that confidential metadata is removed from documents sent to opposing counsel, with an exception for electronic material sent or received during discovery.

Lawyers receiving documents have various ethical duties, depending on the conduct of the sending attorney – if a received document contains “readily accessible metadata,” the receiving lawyer has a duty to “promptly notify” the sender of this fact. However, if the sending attorney notifies the receiver that such metadata is present, and requests that the receiver refrain from reading, and return the document, the receiver has no duty to comply, barring any separate duties that may arise from the nature of the document. The receiver may voluntarily comply with the sender’s request as a matter of consultation with his client and his professional discretion.

Where electronic documents have been properly “scrubbed” of metadata, WSBA finds that it is a violation of ethical rules to use software designed to restore such metadata. Although there is no direct prohibition against the use of such software, the opinion notes that efforts to restore erased metadata would violate a number of ethical rules regarding the proper gathering of information.

These two rulings represent a solid step forward in ensuring that legal ethics in Washington State evolve in sync with the technology underpinning modern legal practice.

ATJ/WSBA Annual Conference

This year’s conference, happening June 8-10, will address the challenges posed by the current economic climate. It is entitled “Our New Economic Reality: The Legal Profession’s Role,” and participants will be exposed to a wide range of workshops and presentations showcasing the new challenges and new opportunities in our continuing mission to bring about a more just society.

The agenda for the conference is available here. There will also be a number of workshops where practitioners will be able to learn about – and contribute to – new initiatives and brainstorming sessions aimed at increasing access to justice.

We look forward to seeing what happens at the conference!