Page 1 Copyright (c) 2012 American Bar Association Criminal Justice Summer, 2012 27 Crim. Just. 57 DEPARTMENT ETHICS THE ETHICAL RISKS OF TECHNOLOGY By Peter A. Joy and Kevin C. McMunigal PETER A. JOY is the Henry Hitchcock Professor of Law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri; he can be reached at joy@wulaw.wustl.edu. KEVIN C. McMUNIGAL is the Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio; he can be reached at kcm4@case.edu. Both authors are contributing editors to Criminal Justice magazine. TEXT: [*57] Law practice today increasingly depends on technology. The ABA 2010 Legal Tech- nology Survey Report, for example, found that 76 percent of responding lawyers used smart phones, up from 64 percent in 2009. Both prosecutors and defense counsel use e-mail, circulate electronic drafts of legal pleadings, briefs, and other case materials, and rely on smart phones and other mobile devices. Many law offices use remote data backup and cloud computing. Such use of technology raises a number of ethical issues. What if a lawyer sends an e-mail intending it to be delivered to one recipient only to find that it was accidentally sent to one or more unintended recipients? What if a lawyer loses a smart phone containing client e-mails and documents? Such errors can seriously compromise client confidential- ity and attorney-client privilege as well as do serious practical and strategic damage to a client's case. In this column we explore the ethical issues some of today's technology creates for lawyers and what ethics rules and opinions say about precautions lawyers should take to protect client infor- mation. Relevant Model Rules Confidentiality and competence are twin touchstones for assessing ethical obligations regarding technology. In sum, lawyers must act competently to protect confidentiality. Comment [16] to