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 [8] 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
Cybersecurity
Electronic
Discovery
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.
Internet-Based
Investigations
Internet-Based
Marketing
Leveraging
New and Established Legal Technology/Innovation
Conclusion
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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