Home Ch.1 - Automating the Practice Technology Ethical Considerations Failure to Use Technology in Your Practice
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Chapter 1 - The Necessity for Automating the Practice of Law

Failure to Use Technology in your Practice

Failure to use a computer for certain tasks of legal and nonlegal research may be an act of professional negligence.  The question is whether the failure to use computers is reasonable under the circumstances.  "Legal Malpractice: Does the Lawyer Have a Duty to Use Computerized Research," O'Connell, 35 Federation of Insurance Counsel Quarterly 77 (1984).  In California, an attorney lost a malpractice suit because of failure to conduct thorough research and properly represent his client in a divorce proceeding, Smith v Lewis, 13 Cal.3d 349, 530 P.2d 589 (1975), overruled on other grounds, 126 Cal.Rptr. 633, 641 (1976).  Also see Pritchard, Attorneys in the Electronic Age: Is There a Duty to Make the Transition?, 62 FLA. B.J., 17 (March 1988); Davis v. Damrell, 119 Cal.App.3d 883, 174 Cal.Rptr. 257 (1981) found that where an attorney had engaged " in a through, contemporaneous research effort" including a computerized on-line search the bad advice was not malpractice.  Also see, The T.J. Hooper, 60 F.2d 737(2nd Cir.1932); Helling v. Carey, 83 Wash.2d 514, 519 P.2d 981 (1974); and Warrick v.  Giram, 290 NW 2d 166 (Minn. 1980).

The Seventh Circuit in a recent “duty to browse” decision seems to impose a duty on litigants to ‘browse” the Internet for certain financial information.  Whirlpool Financial Corporation v. GN Holdings, Inc., 67 F3rd 605, 610 (7th Cir. 1995.)  The court stated:

“Moreover, once the significant discrepancies between the projections and actual results placed Whirlpool on notice regarding the possibility of fraud, the information Whirlpool says it needed to "uncover" the alleged fraud was in the public domain.  In today's society, with the advent of the "information superhighway," federal and state legislation and regulations, as well as information regarding industry trends, are easily accessed.  A reasonable investor is presumed to have information available in the public domain, and therefore, Whirlpool is imputed with constructive knowledge of this information.  See Eckstein v. Balcor Film Investors, 58 F.3d 1162, 1169 (7th Cir.1995).”

 


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