The Attorney – Client Digital Relationship
It is important for the attorney and client in a family law matter to establish the means of communication between lawyer and client. Are e-mails permitted at all hours? When will they be reviewed and responded to? With e-mail communication, it is imperative not to “send” too quickly. One must not only watch for auto-correct which changes words but also incorrect e-mail addresses, e-mails being sent to unintended parties, or a string of e-mails being erroneously sent because it is attached to a line of e-mail communication. Group e-mails can be particularly problematic in mediated or family cases. Pressing “reply all” may include the other spouse in the case, or all professionals that the original e-mail included. It is unethical and can have dangerous repercussions in a divorce case for one spouse to send his or her lawyer, the digital communication and attachments that were exchanged between the spouse and that other spouse’s attorney. Such information is confidential. The lawyer receiving such information may have a duty to notify the other spouse’s counsel and/or the court. The lawyer may seek to recuse him or herself from representing a client who obtained and sent such communications. If a family law attorney utilizes such attorney-client information, he/she may be sued, and face disciplinary action. Although face-to-face consultations and a personal referral may be best to find a lawyer, obtaining information concerning the legal process of divorce has changed. The internet has a vast amount of lawyer and legal websites, attorney reviews, blogs, e-books, apps, and videos. An office of court administration, bar associations and non-profit organizations also provide online information. There are apps that calculate child support and maintenance amounts, interactive worksheets and instant lawyers/matrimonial professionals that appear on a screen or respond digitally within minutes to your immediate questions. There are online support groups and chat rooms concerning divorce. Software has been developed and is available that assists parents and children post-divorce concerning communication, calendars, scheduling, coordination between two households, and the paying of children’s expenses. Of course, internet dating sites and apps for divorcees presents its own subculture of advantages and dangers.
Family cases involving divorce and custody contain sensitive and personal information. Whereas e-filing is permitted in most cases, New York State and other jurisdictions do not permit e-filing in matrimonial and family cases. The exchange of documents between lawyers and obtaining documents from clients is being done by flash-drives, dropbox, and attachments to e-mail. Hopefully the days of carting box loads of paper and killing trees are dwindling in matrimonial matters. Many judges are accepting parenting plans, briefs, and other submissions by e-mail even when there is no e-filing through the court system. It is also important to ascertain if a matrimonial law firm will be storing private client files in the cloud, and the level of security.
The Forensic Computer Expert
The divorce process has become most effective as a team approach. The original members of the team included the spouses and the attorneys. Thereafter, mediators, mental health professionals, accountants/financial planners, and vocational experts were added to address conflict resolution, psychological, tax, retirement and employment issues. The forensic computer expert is the newest member of the team. Computer forensics is a branch of digital forensic science concerning legal evidence found in computers or other digital storage media. The discipline involves similar techniques and principles to data recovery, but with additional guidelines and practices designed to create a legal audit trail. A computer forensic expert preserves, identifies, extracts, documents, and interprets computer data so that it can be used in a legal case.
Preservation of computer files concerning finances is usually required in a divorce case. During preservation, data identified as potentially relevant is placed in a legal hold. This ensures that data cannot be destroyed. Once documents have been preserved, collection is the transfer of data from a person or business to legal counsel and possibly a judge or mediator who will determine what computer files are relevant and not protected as attorney-client privileged material or attorney work product. The data will be provided to a spouse’s attorney if it is relevant and not protected. If a computer is considered a “family” computer, it is not considered private. One’s spouse will be permitted to obtain access to the files stored in that computer. The rational is that a home computer is similar to a file cabinet. In matrimonial cases there usually is full disclosure provided concerning finances. If financial information was inappropriately obtained by computer hacking the court might still permit the financial information to be a part of the case if such information was supposed to be exchanged.
The Futuristic Divorce
Custody disputes over pets has emerged, will pet robots be next? Will information from the family robot or computer chips appear in forensic psychological reports? How about space travel terms in parenting plans? Will mediators, judges, collaborative attorneys, and financial accountants be able to obtain financial records, research and legal documents with a “ blink of an eye” due to the internet and computer files appearing on contact lenses? We already have Google glasses, and Oculus glasses for virtual vacations. Hardware may become a dinosaur. With chips implanted in our walls, roads, and medicine cabinets, voice-activated information and images could appear anywhere. Gadgets are on the market, which provide access to the internet, digital information, and monitor health in watches, jewelry, clothes, and wristbands. Driverless cars and electromagnetic transportation may change the way we spend time with our children.
I remember twenty years ago fierce conflicts between spouses over who gets the family photos. With digital photography, such disputes are relics of the past. With 3D printers, programmable matter, and nanotechnology, exact replicas and new customized consumer items may be produced easily. Will the nature of marriage and relationships change personal bonding and the development of intimacy by an increasingly virtual connection?
Legal contracts concerning assisted reproductive technology and frozen embryos already exist. Will mental illness and special needs children lessen due to advanced genetic screening, neuroscience and use of stem cells and gene therapy? Will parents have to make decisions whether to utilize genetic and robotic enhancements to their children, which will increase intelligence, talent or physical ability? Currently, one is sometimes permitted to appear for a mediation conference, court appearance, collaborative session or deposition in a matrimonial matter by video conferencing. Perhaps in the future, holographic images of ourselves will be present. One thing is certain, science and technological advances will continue to impact family life and law.