FEATURE ARTICLE: The Ethics of Change
Author: Professor Michael H. Hoeflich, PhD, Editor-in-Chief
Legal Editor: Carrie E. Parker
This article is featured in Volume 6, Number 12 of the Legal Ethics and Malpractice Reporter, published December 31, 2025.
As the year 2026 begins, it is interesting to look back a century to 1926 and to compare how the practice of law has changed and how the ethics of practice have changed as well. In 1926, one of the great debates at the Bar was whether law was a business with all that implies. Many lawyers believed that law was a gentlemanly profession rather than a business, and that was one of the most important underlying ethical bases for the law. Today, 100 years later, few lawyers would attempt to argue that the practice of law is not a business. Most would say the business must be ethically conducted, and many would acknowledge having aspirations that go beyond making a profit, but nevertheless it would be hard to find any who would not admit that the modern practice of law requires businesses practices to remain economically viable.
The law office of 1926 was a relatively simple organization. There were lawyers and secretary-typists. In many offices, there might be one or two law clerks. Often these were unpaid lawyers hoping to build a practice and earn a living from it. There was a law library either at the firm or at a law school or bar association that the lawyers could use for research. Technology consisted of typewriters, electric lighting, telephones, and fountain pens, which had by that time replaced dip pens. There were bookshelves and filing cabinets, most often made of oak so at risk of fire and water. The ethical rules that regulated practice were based on the American Bar Association Code of 1908, which itself was based upon the rules first set out by David Hoffman in 1836-46 and Judge George Sharswood in the 1850s. There were a few large firms that serviced the growing number of large corporations, especially in New York, but the average practice was small.
If a lawyer of 1926 were to visit a law office of 2026, it is quite likely that he would be reduced to a combination of shock and wonder. Use of the male pronoun is assumed because most lawyers in 1926 were still men (although that was changing slowly).
The law office of 2026 may vary from a solo practice to an international megafirm of thousands, but all are highly dependent upon technology of every type. Lawyers now depend upon human paralegals and sophisticated computer programs to do complex tasks that a hundred years ago would have been performed by members of the Bar, if performed at all. Today, a lawyer could not practice without a cell phone, a computer, subscriptions to legal databases, and computer tools. Today, many lawyers rely on the many variations of AI algorithms, including those that do research, generate documents, analyze conflicts, follow complex financial reports, and even greet clients on the phone (and front office robots are not far behind). But technology not only changes the way tasks are done, it also changes the culture and the entire ecosystem of law practices. As we have learned over the past fifty years, basic ethical principles can be challenged and even defeated by new technology–and its misuse. Cell phones, email, and now AI all present special challenges to Rule 1.6 on confidentiality, for instance. The use of generative AI presents a significant challenge currently both to confidentiality required by Rule 1.6, competence required by Rule 1.1, and supervisory obligations under Rules 5.1 and 4.4, among others.
The modern version of Rule 1.6 in Kansas, for instance, reads:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) To prevent the client from committing a crime;
(2) to secure legal advice about the lawyer’s compliance with these Rules;
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(4) to comply with other law or a court order; or
(5) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
When looking at the modern Kansas version of Rule 1.6, it becomes clear that Rule 1.6(c) on the need to make “reasonable efforts” to preserve client confidentiality sets the need to develop what actions will satisfy this; which will require learning in detail about any new technology; how using it may threaten confidentiality; and how to lessen, mitigate, and, if possible, eliminate such threats caused by the new technology. Indeed, modern versions of the Rules of Professional Conduct in Kansas and other states make explicit that acquiring this knowledge of new technologies, their benefits, and the threats they present is non-negotiable:
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.
Rule 1.1, Comment 8 (emphasis added).
If we look at the Code of Professional Responsibility published by the American Bar Association in 1908, the rule on lawyer maintenance of client confidences is contained in Canon 6:
The obligation to represent the client with undivided loyalty and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.
The obligation under the 1908 Code was more absolute than the current rule (“forbids”), with no stated exceptions. It did not mention reasonable efforts to maintain client confidences. The fact is, the threats to client confidentiality in the law office of a century ago were far less and far easier to solve. Papers had to be preserved and not casually discarded in a manner that allowed them to be seen by others. Lawyers and staff had to understand that, as was said in a war soon thereafter “loose lips sink ships” . . . and law cases and lawyer careers.
The technology that would have been most concerning other than maintaining control of papers and copies produced by typewriters was the use of telephones to communicate confidential information. This required understanding that people could overhear confidential calls, but there was simple answer to that: use the telephone in a specially constructed booth or only when others were neither in the room or listening at the door.
The thought that went into protecting client confidences in an early twentieth law office was far less than what is needed in the early twenty-first century. Progress in the practice law brings with it more complex ethical issues.
Indeed, we are now undergoing an onslaught of new technologies being developed, some of which are designed directly for the law office and some of which are not. But all of them have potential ethical ramifications. Another example of this is the global proliferation of law directed searchable databases. Lawyers realized that American trained lawyers (and other non-lawyers) based in foreign countries in which living costs and research fees could be dramatically less costly. This very quickly led to a stampede of American lawyers seeking out off-shore English speaking researchers who could perform sophisticated research at lower cost, thereby saving costs not only for the lawyers but for their clients. It also brought with it serious questions about legal ethics, such as the protection of client confidences and avoidance of inadvertent client conflicts when the work was being done thousands of miles away by personnel whom the lawyers had not even met. Not surprisingly, the ABA Committee issued Formal Opinion 08-451 setting out substantial and potentially costly requirements for U.S. lawyers who wanted to outsource non-legal services while avoiding confidentiality and conflicts problems.
There are many more instances where the introduction of new technologies have created ethical issues for lawyers that either had not existed before or were not realized at the time of adoption. Many of these unexpected problems—like confidentiality in the use of email or cell phones—persist decades after the introduction of the new technology.
Technology often is a blessing improving law practice and the lives of lawyers. But there are few new technologies that come without serious risks as well. This has been true for more than fifty years and as law practice becomes more dependent on technology, the need to thoroughly explore and use these technologies in the light of ethical responsibilities becomes more pressing than ever.
READ THE FULL ISSUE OF LEMR, Vol. 6, No. 12
About Joseph, Hollander & Craft LLC
Joseph, Hollander & Craft is a mid-size law firm representing criminal defense, civil defense, personal injury, and family law clients throughout Kansas and Missouri. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 25 attorneys covers a lot of ground, both geographically and professionally.
We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for clients who have suffered catastrophic injuries or the death of a loved one due to the negligence of others. We fight allegations of professional misconduct against medical and legal practitioners, accountants, real estate agents, and others.
When your business, freedom, property, or career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless — Ready for Anything, come what may. At JHC, we pride ourselves on offering outstanding legal counsel and representation with the personal attention and professionalism our clients deserve. Learn more about our attorneys and their areas of practice, and locate a JHC office near you.
