The Search for Clarity in an Attorney's Duty to Google
51 Pages Posted: 28 Aug 2020 Last revised: 31 Aug 2020
Date Written: August 23, 2020
Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.
So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much attorneys should be searching. This Article examines the following questions: is the “Duty to Google” merely yet another example of how attorneys must become proficient in technology to meet their professional ethical obligations? Or is it something more? Where should this duty be codified, if anywhere? At what point does technology like a search engine become so “mainstream” that attorneys have a duty to use it or face allegations of malpractice? How will attorneys know how much Googling is enough?
This article explores an attorney’s duty of investigation and notes that this duty has been, like the rest of legal practice, forever changed (and ever changing) by technology. It examines the potential sources of a Duty to Google and argues that this responsibility is poorly defined. Accordingly, this article argues for a better-defined duty of investigation, codified in a rule of professional conduct. The article concludes by looking to the future and suggesting industry-wide changes to better prepare attorneys to meet their (better defined) obligations of technological competency.
Keywords: Professional responsibility, Model Rules of Professional Conduct, Rules of Civil Procedure, ABA Standards & Guidelines, duty of competence, ineffective assistance of counsel, duty of investigation, technological proficiency, ethical requirements, legal training, continuing legal education
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