Editor’s Note: The author of this post is a partner at a law firm in Chicago.
By Steven M. Puiszis, Partner, Hinshaw & Culbertson
One of the trends in legal ethics over the past decade is the recognition of a duty of technological competence. Historically, the concept of a “competent” attorney primarily focused on a lawyer’s knowledge of a substantive area of the law coupled with his or her experience and ability to represent a client in a particular engagement. Technology’s impact on the legal profession has rendered this historical view of competence outdated.
The 2012 amendments to the ABA’s Model Rules confirmed that a lawyer’s duty of competence requires keeping “abreast of changes in the law and its practice,” including the risks and benefits of relevant technology. Andrew Perlman, the Chief Reporter of the ABA Commission on Ethics 20/20 observed that the 2012 amendments“reflect[ed] technology’s growing importance to the delivery of legal and law-related services.” While the obligation to be aware of the “benefits and risks” of relevant technology is a nebulous one, Perlman explained the standard had to be because“a competent lawyer’s skill set needs to evolve along with technology itself,” and“the specific skills lawyers will need in the decades ahead are difficult to imagine.”
To date, 20 states have adopted the ABA’s 2012 amendments to Model Rule 1.1. While California does not follow the Model Rules’ approach, a 2015 State Bar ethics opinion addressing an attorney’s ethical duties involving the discovery of electronically stored information relied on Comment 8 to Model Rule 1.1 in its discussion of ediscovery competence.
The concept of “technology competence” is often associated with protecting client information from being inadvertently disclosed, accessed or acquired by third parties. The duty of technological competence, however, is far broader than simply protecting client information or cyber security. Rule 1.1’s competence requirement“appl[ies] not only to a lawyer’s legal skills, but also generally to ‘those matters reasonably necessary for the representation.’”
Broadly speaking, there are five realms of technology competence reasonably necessary for many engagements:
- safeguarding client information
- ediscovery, including the preservation, review and production of ESI (This includes social media discovery, which opens a Pandora’s box of ethical issues for lawyers)
- the technology that lawyers use to run their practices (This can include communication and file share technologies, software for document generation, electronic calendaring, and docketing tools. Many of these applications store information in the “cloud” so this realm includes competence with cloud-based issues)
- a traditional realm — understanding the technology used by our clients to design or manufacture products or to offer particular services
- the technology used to present information in the courtroom.
This article explores what the duty of technology competence requires of today’s lawyers.
Technology’s Impact on the Practice of Law
Technology allows lawyers to practice anywhere in the world with an available internet or WiFi connection. It has changed how we communicate with clients and one another and has impacted — if not altered — virtually every aspect of the practice of law over the past decade.
Email and text messages have replaced letter writing and phone calls. Computer research via our laptop computers, tablets or smart phones has made law libraries and text books obsolete. Software can generate a wide variety of basic legal documents and machine intelligence has the ability to automate simple briefs and memos. Blow ups and white boards used for years in courtrooms are being replaced by LCD projectors or Elmos connected to video monitors. Annotation monitors allow witnesses to mark electronic exhibits, and evidence cameras that convert documents into electronic exhibits are working their way into technology enabled courtrooms.
Fitness trackers, “wearables” and social media provide information for injury claims. Google Glass is being used to create day-in-the-life videos. GPS tracking and electronic control modules ("black boxes") in motor vehicles can provide detailed critical information about location, velocity, speed, and acceleration and deceleration rates. Video cameras mounted on vehicle dash boards or carried by individuals and the proliferation of surveillance cameras are providing evidence that in the past had been limited to the witness’ testimony. Drones are being used to monitor and track movements of vehicles and persons. Electronic record keeping systems, such as electronic health records, are triggering new and challenging discovery and trial issues for lawyers and their clients.
Entire areas of science, such as serology, critical in many trials held as recently as twenty years ago have been rendered obsolete by scientific advances such as DNA. Technology is advancing so rapidly that the issues trial lawyers will be asked to resolve in the near future involving nascent technologies such as 3D printing and autonomous vehicles may be radically different than those we address today. Auto accidents may turn into product liability trials. As one ethics opinion noted"[l]egal rules and procedure, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent.”
What Does “Technological Competence” Entail?
A lawyer’s duty to provide competent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for an engagement. In other words, lawyers are required to take reasonable steps to protect their clients from being harmed by an ill-conceived use of technology.
The 2012 amendment to Model Rule 1.1 precludes a lawyer from pleading ignorance when it comes to technology or the risks associated with its use. Lawyers are expected to have at least a basic understanding of the technologies they use and the risks associated with those technologies. While attorneys need not become technology experts or “develop a mastery of the security features and deficiencies” of available technology:
[T]he duties of confidentiality and competence … do require a basic understanding of the electronic protections afforded by the technology they use in their practice. If the attorney lacks the necessary competence to assess the security of the technology, he or she must seek additional information or consult with someone who possesses the necessary knowledge, such as an information technology consultant.
An attorney who lacks a basic understanding of how to use a technology, or the risks inherent in a technology used to provide legal services, cannot take “reasonable steps” to competently guard against those risks. As with any area of the law, a lawyer’s duty of technology competence can be achieved through continuing study and education or through association with others who are competent in the area. The duty of competence requires lawyers to also be aware of the risks and benefits of emerging technologies that can be used to deliver legal services. A lawyer’s duty of competence must evolve as the technologies used to provide legal services evolve (noting that as technologies change attorneys“should keep abreast of the most current standards so that [they] can evaluate whether the measures taken … to protect client confidentiality have not become outdated").