It is well understood that changes in technology present challenges to legal practice that go beyond intellectual property litigation. For example, the growth in electronic discovery over the past decade has given rise to a new practice specialty, jurisprudence and supporting service industry. The parallel explosion in the use of social media and the cloud has created a wealth of electronic discovery issues, but also more complex and evolving problems involving data privacy and security. Lawyers need to find help with these issues, because although they are required to maintain some degree of competence in “staying abreast of technology” via the ABA Model Rules of Professional Conduct, they rarely have the level of technical expertise necessary to deal with the onslaught of complex computer technology problems their practice presents.
Social media involves the unfettered spread of thoughtlessly generated discoverable information, including new kinds of communications that may create problems where the parties should not be communicating under certain views of professional ethics. The line between what is public and private is blurred, with one perspective holding that the very notion of social media is antithetical to privacy. This blurring can create problems when a lawyer has an obligation to find certain facts but may be sanctioned if he looks in the wrong place, invading privacy.