January 2023 LEMR
FEATURE ARTICLE
Do Lawyers Have a “Duty to Google”?
This article is featured in Volume 4, Number 1 of the Legal Ethics and Malpractice Reporter.
Over the past several years, we have discussed in this column several ethical challenges Google poses for lawyers. Google and its software and devices have become ubiquitous in our society. It is difficult to imagine an American lawyer who does not use Google routinely in her personal and/or professional life. But the many conveniences and economic advantages of Google also come with certain ethical considerations for lawyers.
In an earlier column, we discussed the danger of using Google for confidential searches. Software is now available that permits the user to backtrack search results to discover the search questions. If not phrased properly, a search question might, in fact, reveal client confidential information to someone who gains access to search results and then uses software to reconstruct the search questions. Such a scenario might well expose the searching attorney to a charge of violating Rule 1.6 that requires maintaining client confidences.
Recently, a new issue has arisen: what some courts and commentators have referred to a lawyer’s obligation to use Google as an investigation tool.[1] Law Professor Michael Murphy provides a thorough review of this issue in a brilliant article titled, “The Search for Clarity in an Attorney’s Duty to Google.”[2]
Murphy and others who address this issue begin with the foundational premise that lawyers have some obligation to investigate facts. The courts continue working to define the full extent of this obligation. The obligation arises from several sections of the Rules of Professional Conduct. KRPC Rule 1.1 requires that a lawyer act competently in her practice. KRPC Rule 1.1 states:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Comment 5 states:
Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence.
Comment 8 states:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.[3]
Taken together, the two comments to Rule 1.1 would indicate that lawyers are obligated to thoroughly prepare their cases, including doing whatever factual investigation might be relevant and necessary. When one adds in Comment 8 (Comment 6 in Missouri), that obligation includes the use of new technologies when reasonable. As Murphy points out, this means that lawyers have an ethical obligation to use ubiquitous technologies (like Google) when it is reasonable and assists their factual investigations. Hence, the notion of a lawyer’s ethical “duty to Google” in certain circumstances.
What are some types of factual investigations in which a “duty to Google” may arise? First, of course, are the very basic factual investigations that lawyers must conduct to assure that they are not submitting pleadings to the court containing false statements. KCPR 3.1(a) states:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Comment 3 to KRPC 3.1 reads:
An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b).
MRPC 4-3.1 states:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Comment 2 to MRPC 4-3.1 reads:
[2] The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification, or reversal of existing law.
Considering the requirements of Rule 1.1 and 3.1 together, it is quite easy to see that courts can decide that lawyers have an obligation to use easily available digital tools such as Google or social media to conduct factual investigation to assure that courts are not misled. Murphy’s article provides an excellent survey of cases in which courts have endorsed the “duty to Google” under the right circumstances.
In the past few years, the question of lawyer honesty in litigation has come to the forefront in our national discourse. Lawyers who make factual claims that are easily disproved and who have not made reasonable efforts to investigate those facts run the risk of angering judges and being charged with violating Rule 1.1 and 3.1. Certainly, it is hard to imagine that any court will be satisfied by a plea of reasonable ignorance of the truth or falsity of a fact presented by a lawyer when the lawyer has not undertaken a simple Google search.
Of increasing interest is the obligation that the combination of Rules 1.1 and 1.3 to use other digital tools to conduct investigations. Will there develop a broad obligation to search social media, for instance? This type of search may be less simple because of the large number of social media platforms currently in use. How much searching in the social media context is “reasonable”?
The lesson we should learn from this is that lawyers need to review their investigational protocols and be sure that the tools they use are sufficient to meet the changing ethical requirements being imposed by courts. A good starting place is Murphy’s excellent article and the sources he cites therein.
References:
- The phrase seems to have been coined by Megan Zavieh, “Lawyers’ Duty to Google: Not Changing Anytime Soon,” Att’y at Work (July 7, 2020).
- Michael Thomas Murphy, The Search for Clarity in an Attorney’s Duty to Google, 18 Legal Comm. & Rhetoric: JALWD 133 (2021).
- In Missouri, the relevant comment is Comment 6.
About Joseph, Hollander & Craft LLC
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