How the Rise of Big Data and Predictive Analytics are Changing the Attorney's Duty of Competence

April 7, 2015

If the legal profession had been able to foresee in the late 1990s and early 2000s, prior to the meteoric rise and ensuing cultural ubiquity of social media, that every tagged spring break photo, 2:00 a.m. status update, and furious wall post would one day be vulnerable to potential exposure in the cold, unforgiving light of civil and criminal litigation, attorneys would have been well-advised to discuss the ramifications of such actions, statements, and disclosures with their clients. Today, a similar phenomenon is looming in the form of the collection, aggregation, analysis and sale of personal data, and it will be the prudent attorney who competently advises his clients to stay ahead of the curve. From the standpoint of attorney competency, the emergence of the Internet has forced attorneys to confront unique and complex ethical problems in terms of advising clients as to which types of Internet activity may be off limits or ill-advised. The recent ethics opinions of several bar associations demonstrate how technological advances are effectively shaping the duty of competence, concluding that an attorney’s duty of competence may include an obligation to advise clients regarding their posts to social media. Contemporaneously, the data broker industry has rapidly expanded into the digital sphere, daily collecting huge swaths of consumers’ personal information. That information is now legally exchanged between entities for value, and sophisticated analytical tools have been developed that permit data holders to make meaningful, highly accurate and highly personal deductions and predictions from high volume, seemingly chaotic, datasets. This Article argues that the same rationale that supports the notion that attorneys should advise clients against irresponsible social media usage also supports the finding that, given the current lack of regulation on the collection, commoditization, aggregation and analysis of consumer data, there is an emerging ethical obligation to advise clients regarding the responsible, and, ideally, anonymous, use of the Internet.