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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2699" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2016/07/Pokemon-Go-300x200.jpg" alt="Pokemon Go App Icon on iPhone" width="300" height="200">Since it debuted in the U.S. a couple weeks ago, Pok&eacute;mon Go has become a nationwide phenomenon. If you&rsquo;re like I was, you may need a primer in order to understand what the hoopla is about.&nbsp; The smartphone&nbsp;game was launched by Nintendo and The Pok&eacute;mon Company.&nbsp; It involves capturing and &ldquo;training&rdquo; phantasmagorical creatures called Pok&eacute;mon, who feature in a&nbsp;longtime videogame franchise.&nbsp; And yes, there&rsquo;s an ethics issue for you to think about.
Here&rsquo;s what <a href="http://www.usatoday.com/story/tech/gaming/2016/07/10/five-things-we-learned-pokmon-go/86928122/">USA Today says</a>&nbsp;about our latest digital obsession:
&ldquo;What makes the game special is its use of augmented reality, where Pok&eacute;mon will appear [on your phone] as if they&rsquo;ve been spotted in the real world.&nbsp; The game presents a map powered by GPS, using real-world locations to spot Pok&eacute;mon and collect items.&nbsp; When you find one, the game opens up your smartphone&rsquo;s camera, giving you a view of Pok&eacute;mon in the real world.&nbsp; Once you spot them, you flick a Poke Ball toward the creature to capture it.&rdquo;
So, when you see people &mdash; and they&rsquo;re all ages &mdash; walking around gazing down at their phone these days, they may well be engrossed in playing the game.
Pok&eacute;mon can be found all over the place &mdash; homes, stores, parks, cemeteries, your law office, <a href="http://www.usatoday.com/story/tech/gaming/2016/07/10/five-things-we-learned-pokmon-go/86928122/">behind police departments</a> and even the U.S. Holocaust Museum, before administrators <a href="https://www.washingtonpost.com/news/the-switch/wp/2016/07/12/holocaust-museum-to-visitors-please-stop-catching-pokemon-here/">said people couldn&rsquo;t play there</a>.
What does it mean for lawyers?
First of all, be careful!&nbsp; People have <a href="https://www.washingtonpost.com/news/the-switch/wp/2016/07/08/pokemon-gos-unexpected-side-effect-injuries/">reportedly been injured </a>because they weren&rsquo;t paying attention to their surroundings in their quest for getting to the next level of the game.&nbsp; <a href="http://www.latimes.com/local/lanow/la-me-ln-pokemon-go-players-stabbed-fall-off-cliff-20160714-snap-story.html">Two players fell off a cliff</a> near San Diego, for instance,&nbsp;and had to be rescued.
The obvious ethics issue is your duty of competence under your jurisdiction&rsquo;s version of <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence.html">Model Rule 1.1</a>.&nbsp; Comment 8 says that &ldquo;a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology...&rdquo;
<a href="http://www.lawsitesblog.com/2015/03/11-states-have-adopted-ethical-duty-of-technology-competence.html">Twenty-one jurisdictions have already adopted </a>the comment, which came into the Model Rules in 2013.&nbsp; But even if your jurisdiction is not one of them, your general duty to have &ldquo;the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation&rdquo; still means you need to understand technological developments sufficiently to be able to advise your clients.
We had occasion to <a href="https://www.thelawforlawyerstoday.com/2015/07/watch-out-here-comes-the-internet-of-things/">make the same observation </a>about the many legal issues connected with the internet of things &mdash; you need to know this stuff because your clients are looking to you&nbsp;for advice and counsel on it.&nbsp; As legal tech guru Bob Ambrogi <a href="http://www.lawsitesblog.com/2015/03/11-states-have-adopted-ethical-duty-of-technology-competence.html">has said</a>, &ldquo;You cannot assess the benefits and risks associated with various kinds of technology if you know nothing about the technology.&rdquo;
Potential hot issues
The <a href="http://www.abajournal.com/news/article/pokemon_go_spurs_lawyers_to_stop_and_consider_legal_issues">ABA Journal </a>has collected some of the developing legal issues with Pok&eacute;mon Go:
<ul>
<li>&ldquo;Does placing a Pok&eacute;mon character on a private property, without permission, affect the owner&rsquo;s interest in exclusive possession?&rdquo;</li>
<li>What about putting the creatures in potentially dangerous places &mdash; has that created an attractive nuisance?</li>
<li>&ldquo;Does owning real property extend property rights to intellectual property elements that are placed on it?&rdquo;</li>
<li>An augmented reality game like Pok&eacute;mon Go can lead to competition for the use of the same physical space.&nbsp; What if that disrupts the ability of players or non-players to enjoy the same space?&nbsp; What if it leads to violence?&nbsp;&nbsp;Who&rsquo;s liable?</li>
<li>What First Amendment rights might be involved if government limits the players in a public space?</li>
<li>What about the&nbsp;game&rsquo;s terms of service?&nbsp; They &ldquo;disclaim liability for property damage, personal injury or death while playing&rdquo; Pok&eacute;mon Go, &ldquo;as well as claims based on violation of any other applicable law.&rdquo;&nbsp; How well will that disclaimer hold up?&nbsp; There&rsquo;s also a notice &ldquo;that generally requires arbitration of disputes,&rdquo; a contested provision in many contracts.</li>
</ul>
Clients may come to you with these and&nbsp;other novel questions related to Pok&eacute;mon Go or other augmented reality games, as they become a bigger part of our modern lives.&nbsp; You&rsquo;ll need to research and analyze the issues if you have clients that might be affected &mdash; and many clients will be.
The take-away is to be aware of how these issues may affect your clients, because competent representation involves&nbsp;giving informed advice &mdash; not&nbsp;&ldquo;off the cuff&rdquo; answers.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Pokémon Go — another reminder about the duty of competence for lawyers