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Michael Thomas Murphy
ABSTRACT: Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found to violate what commentators call a “Duty to Google” when they have failed to discover relevant information about a matter, when that information was available through the investigative use of an Internet search.
Using the Internet to locate a fact is a commonplace, if not common activity for people with easy access to the Internet. It is also a fast and inexpensive way for an attorney undertaking a factual inquiry to obtain an immense amount of information in a short time. But electronic searches provide so much information to attorneys so easily that it can be difficult to determine where, when, and to what extent attorneys should be searching to fulfill their duty of fact investigation.
This article explores an attorney’s duty of investigation and notes that this duty has been, like the rest of legal practice, forever changed by technology. It examines the following questions: Is the Duty to Google merely another example of how attorneys must become proficient in technology to meet their professional ethical obligations? Or is it something more? At what point does technology like a search engine become so “mainstream” that attorneys have a duty to use it or face allegations of malpractice? How will attorneys know how much searching is enough?
The article proposes and describes a codified Duty to Google as a specific addition to the rules of professional conduct with respect to attorney competency. It concludes by looking to the future and suggesting industry-wide changes to better prepare attorneys to meet their evolving obligations of technological competency.