By Andrew Perlman
(Andrew Perlman is a professor at Suffolk University Law School, where he is the Director of the Institute on Law Practice Technology and Innovation. He was the Chief Reporter of the ABA Commission on Ethics 20/20 and is the Vice Chair of the newly created ABA Commission on the Future of Legal Services. )
The Duty of Competence in a Digital Age
The ABA Commission on Ethics 20/20 was created in 2009 to study how the Model Rules of Professional Conduct should be updated in light of globalization and changes in technology. The resulting amendments addressed (among other subjects) a lawyer’s duty of confidentiality in a digital age, numerous issues related to the use of Internet-based client development tools, the ethics of outsourcing, the facilitation of jurisdictional mobility for both US and foreign lawyers, and the scope of the duty of confidentiality when changing firms.
One overarching theme of the Commission’s work was that twenty-first century lawyers have a heightened duty to keep up with technology. An amendment to Model Rule 1.1 (Duty of Competence), Comment  captured the new reality (italicized language is new):
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.
The Model Rules had not previously mentioned technology, and the Commission concluded that the Rules should reflect technology’s growing importance to the delivery of legal and law-related services.
New Competencies for the Twenty-First Century Lawyer
In New York, e-discovery competence is now mandated in section 202.12(b) of the Uniform Rules for the Supreme and County Courts:
Where a case is reasonably likely to include electronic discovery, counsel shall, prior to the preliminary conference, confer with regard to any anticipated electronic discovery issues. Further, counsel for all parties who appear at the preliminary conference must be sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery: counsel may bring a client representative or outside expert to assist in such e-discovery discussions.6
In California, a recently released draft of an ethics opinion covers similar ground and once again emphasizes the importance of e-discovery competence:
Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI.7
Competence is not the only ethical duty at stake. The California draft opinion (like the Massachusetts disciplinary case) observes that the improper handling of e-discovery “can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.”8 The opinion concludes that, if lawyers want to handle matters involving e-discovery and do not have the requisite competence to do so, they can either “(1) acquire sufficient learning and skill before performance is required; [or] (2) associate with or consult technical consultants or competent counsel. . . .”
Related issues arise when lawyers advise their clients about social media content that might be discoverable. Recent opinions suggest that lawyers must competently advise clients about this content, such as whether they can change their privacy settings or remove posts, while avoiding any advice that might result in the spoliation of evidence.10 The bottom line is that e-discovery is a new and increasingly essential competency, and unless litigators understand it or associate with those who do, they risk court sanctions and discipline.
Leveraging New and Established Legal Technology/Innovation
The seemingly minor change to a Comment to Rule 1.1 captures an important shift in thinking about competent twenty-first century lawyering. Technology is playing an ever more important role, and lawyers who fail to keep abreast of new developments face a heightened risk of discipline or malpractice as well as formidable new challenges in an increasingly crowded and competitive legal marketplace.
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