 Performing
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. |
