In this digital age, dreams of retirement often include the idyllic concept of never, ever having to root through another email in-box, or respond in the middle of the night to an electronic missive from several times zones away. But in like manner to the way in which a character in a cartoon has his dream ended by the gauzy picture vanishing in a puff of smoke as he falls out of bed, the Supreme Court of South Carolina, sitting in its capacity as Disciplinary Board, has issued sanctions to a retired lawyer for failing to maintain an active email address. The somewhat Pyrrhic sanction was suspension of an attorney who had argued that she hadn’t seen a client in over thirty years, but the Court made its position clear: the duty to maintain an open line of communication for clients, courts and adversaries, even if they exist only in the past tense, continues indefinitely in this digital age.
In its October 17, 2013 Resolution the Court noted that the emails from the Clerk’s Office to the attorney regarding a pending disciplinary matter generated an automatic response indicating that the attorney was retired, and directing the sender to “the current directory for contact information.” The Court held that the attorney was in violation of the South Carolina Rule 410(g) requiring that all attorneys maintain an active email address. The Court went on to state that even if the attorney had formally elected retired attorney status, which she had not done, she would still be required to maintain an active email address. The Court did not discuss whether retired attorneys must check email and, if so, with what frequency, or whether retirement to an island or mountaintop without Internet access would excuse compliance (doubtful, even as the number of such places shrinks daily).
The intersection between law and technology is often as perplexing as a crossroads with four-way Stop signs and, like cars at such a junction, ethics opinions related to technology proceed in fits and starts, without much consistency. It’s clear, though, that enforcement of old rules of attorney responsiveness may harden in an age in which one is reachable anywhere, at any time, and expected to respond promptly. Attorneys are required to keep abreast of those communications technologies and their obligations, as per Comment 8 to ABA Model Rule 1.1, which states that, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject (emphasis supplied).
Rules on responsiveness to practice-related electronic communications are evolving, and will vary by state. So, retire when you are ready, by all means, but keep the smartphone nearby – just not to close to the edge of the dock. Salt water and communications devices don’t mix well.