Online Intake Forms: An Ethical Concern or Duty?
Attorneys need to know as much about a prospective client’s legal issues – and the client – as possible in order to determine whether or not to accept the client.
Ethical rules prohibit representations where potential conflicts arise, and firms should also be aware of the financial and past legal background of new clients to properly ascertain the risks.
Agreeing to represent the wrong client can lead to a host of head-aches, including unpaid bills and ethical dilemmas.
Traditionally, firms used clunky paper intake forms and time-consuming client interviews to gather the information necessary to make the assessment. Firms relied upon paralegals and administrative staff to transfer the information into various platforms — a data entry practice that is error prone and labor intensive.
For smaller firms without the resources to retain staff dedicated to data entry, the burden falls upon the attorneys. In fact, a recent study revealed that even small firms that handle only 30 matters a month, at a billing rate of $250/hour, spend up to 180 hours annually on intake data entry which adds up to a loss of up to $45,000 of billable hours a year.
Online Intake Forms
Instead of playing a game of telephone with a potential client, why not have them provide their information in a secure manner that automatically syncs with your law firm's practice management software?
Online intake forms provide that option.
With online intake software, firms can tailor their intake forms any way they like. They can choose the questions, use multiple choice options or allow for free-form responses, and seamlessly integrate the client input with existing practice management software.
Eliminating time-consuming and unbillable data entry is only one of the ways online intake forms are cost-effective. It also reduces the costs of paper and toner as well as lower the firm’s carbon footprint for the eco-conscious.
For example, a recent survey by the Purdue University Department of Horticulture found that a single lawyer generates up to 100,000 sheets of paper a year. 10 reams of 500 sheets of all-purpose copy paper costs around $54.99. That comes out to just under $1,100 for each attorney.
In a competitive field, the firms that can both reduce their overhead and advertise to potential customers its eco-friendly practices may have the edge needed to succeed.
Of course, client satisfaction is also a paramount concern.
Granted, the personal touch of sitting down with a prospective client and hashing out the particulars of a matter has not entirely gone out of fashion. There’s also the contention that a $50 million client isn’t going to want to sit in the lobby filling out a form on an iPad.
However, a recent Usabilla report found that 54% of people polled said they would always choose an automated customer service option over human interaction if it saved them 10 minutes.
Automation isn’t just convenient for law firms. It allows clients to explain their situations on their own time, at their own pace, and without having to set appointments with their lawyers.
As noted above, the time savings captured from online intake forms will provide attorneys with the additional time to really focus on providing personal and meaningful advice and attention towards properly vetted clients.
Another consideration is that online intake forms offer features unavailable in the old paper forms or even PDF and word processing programs.
For example, online intake forms can be tailored to a potential client's initial responses, with different forms being automatically provided based on the initial responses. In addition, online intake forms’ web-based format allows for a more user-friendly experience by allowing potential clients to login, start filling out the intake forms, and then logout to complete the forms at a later time.
Ethical Concerns
When selecting an online intake form app, law firms should make sure they comply with the ethical requirements for avoiding client conflicts, and safekeeping sensitive client data.
For example, several of the Model Rules of Professional Conduct prevent or at least limit lawyers from being able to represent one client in a manner that is adverse to another client or former client.
Apps that allow lawyers to accept confidential intake information from potential clients present a significant risk here.
Lawyers should make sure to conduct conflicts checks before receiving intake information from a potential new client. Otherwise, the lawyer may have to not only decline the representation of the new client, but also terminate the representation of the existing client. Failing to do so could present significant ethical dilemmas and possibly also disciplinary action.
Rule 1.6 addresses the confidentiality of information. The chief concern in terms of online intake forms comes from the need to keep the client’s information safe from cyber-attacks. Intake forms by their very nature can contain sensitive information like confidential information about the client's legal matter, social security numbers, financial data, and personal details.
In the past, this information would be kept under lock and key in file rooms with access restricted to attorneys and their staff.
One thing that paper records will always have over digital data is that paper can’t be remotely hacked. Law firms are one of the biggest targets for hackers due to the sensitive information that is their stock and trade, and switching intake forms to an online format may raise alarm bells with a firm’s ethics counsel or IT personnel.
However, these concerns falter with the realization that most (if not all) paper records are eventually scanned into practice management software anyway. The inherent risks of maintaining digital records have become a given in a society that conducts most of its business online.
Still, this does not relieve firms of their responsibility to vigilantly protect their client’s confidence.
The American Bar Association advises that law firms take “affirmative steps to prevent the unauthorized access of client information.”
For example, according to cybersecurity authority Symantec, “80% of breaches can be prevented by using multifactor authentication.” Multifactor authentication offers an additional level of verification beyond the standard password. It can be anything from a special additional code sent to a user's cell phone or email account, to a security USB token, to a retinal scan.
Additionally, the American Bar Association offers this checklist from Arlan McMillan, the chief security officer at Chicago firm Kirkland & Ellis, of best practices for defending a firm from cyber-assault:
- Aggressively patch your computer systems (laptops, servers, etc.). Microsoft releases patches every month, and program patches are released regularly. “If you’re patching, it makes it much harder for hackers to take advantage of your computer systems.” On average, an unpatched computer exposed to the internet will be hacked within 90 minutes.
- Be a regular user, not an administrator. “Administrator” and “user” are designations that define how much authority you have to make changes on a computer system. Logging in as an “admin” exposes the computer to hacking; it’s more secure to log in as a “user.”
- Use strong passwords. McMillan recommends using passphrases instead of passwords.
- Invest in email message and attachment scanning tools. This will help protect from phishing attacks.
- Invest in web-filtering tools. This will help you guard against malicious websites.
Rule 1.1 presents a different challenge. It states:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Encompassed within the competency requirements of Rule 1.1 is the use of technology in a manner that benefits the interests of the client. This means not only considering the use of technology like online intake forms, but also implementing standardized cybersecurity best practices and staying abreast of updates, breakthroughs, benefits, and risks associated with the use of technology.
As legal apps proliferate, this duty of competence has grown to encompass maintaining a working knowledge of advances that can be used to provide improved or more complete representation. The implications of this are important. It means that remaining uninformed out of personal convenience constitutes a failure to maintain a duty of competency, potentially allowing for disciplinary action or other negative consequences.
Whether a firm uses online intake forms or maintains outdated paper forms, the ethical rules require that a firm implement cybersecurity procedures to safeguard its client’s sensitive and confidential data.
Conclusion
Technological benefits show no signs of going away any time soon.
In the face of a tool that makes client intake easier for both clients and law firms, automatically organizes client data for future use, and frees up time for different – i.e. billable – tasks, law firms would be well served to take advantage of it?
This article was first published in Law Technology Today on 7/8/2019.
