California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - AUGUST 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - August 2001
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News / News Briefs
MCLE deadline for Group 3 (last names N-Z) is Feb. 1
Judicial Council launches online self-help center
California lawyers honored for work for homeless, minorities and children
Coy about her future, Reno focuses on women's issues
No bias found against solos
Governor signs two-year fee bill
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Ethics update...
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Trials Digest
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Opinion
From the President - Bar targets unauthorized practice
Microsoft ruling: Foundation to settle
MJP is more than alphabet soup
Letters to the Editor
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Legal Tech - A look back at six years of technology news
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You Need to Know
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MCLE Self-Study
A word from our sponsors
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - Let's go surfin' now, everybody's learnin' how
Recovering alcoholic may get to recover his license
Attorney Discipline
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Public Comment
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ETHICS BYTE

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Let's go surfin' now, everybody's learnin' how

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By DIANE KARPMAN
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Diane KarpmanPerforming legal services below the standard of care can result in liability for professional negligence. We are not responsible for every little mistake, but we must perform with the same degree of knowledge, skill and ability as other lawyers similarly situated. We need to keep abreast of information and laws that are available through standard research. Smith v. Lewis (1975) 13 Cal. 3d 349.

"Standard research" now includes familiarity with the Gramm-Leach-Bliley Act ("the Act"). Effective July 1, 2001, it requires "financial institutions" to provide notice to their customers (clients) regarding their policies for the dissemination of financial information. For some bizarre reason, certain lawyers are deemed to be "financial institutions." (OK, so your kids thought you were a financial institution, but we parents know it isn't true.) Nevertheless, if you are involved in real estate closings, tax and estate planning, securities, insurance, debt collection services, personal bankruptcy, employee compensation planning and domestic relations, you need to review the Act to see if it applies to your clients or you!

Go to LACBA.org for almost everything involving the Act, including form "notices" and hypertext links explaining the law's ironic application to lawyers. Obviously, requiring lawyers, the gatekeepers of privacy, to notify clients regarding disclosures, in light of the duty of confidentiality, is slightly nuts. Future compliance can be in your fee agreements (yes, another clause).  The ABA is seeking a waiver for the legal profession. Note that each violation can cost $10,000, a mere pittance for a true "financial institution."

Lots of information about the Act can be found in the Federal Register, a document that in the near future may only be published online. Some-time in the distant future, it is possible that most of our research will be conducted online. "As technology and resources develop, the minimum knowledge and preparation required of lawyers develops as well." McNa-mara v. United States, (E.D.Va.1994) 867 F. Supp. 369, 374, fn.3, revd. and remd.

Judges are surfing the internet, many class actions have homepages, and class notices are being sent on-line. Our clients are far more sophisticated as a result of the information superhighway. They seem to know everything. Online research, once thought to be exorbitantly expensive, is now often free. Many regulations, laws and documents are online and in the public domain. Someday, it may be necessary to obtain client consent to use hard copy, or "books," to engage in research, since a traditional law library is becoming a luxury.

Sorry, but the internet isn't just about finding Moby or Debussy, or ego surfing (looking yourself up) on "Google." It is possible that the availability of information, from researching opposing counsel in membership records at calbar.org or dailyjournal.com, to pending legislation, to current case law, to patents, etc., may someday have an impact on the definition of "reasonable research," maybe even the standard of care (way down the road). But, that can wait until tomorrow. Today, I need to find a new peer-to-peer platform to compensate for the demise of Napster, unless those feisty entertainment lawyers get there first.