This Week In Legal Tech: Ethics And Technology Competence
If you're still in the technological dark ages, beware: You face not just obsolescence, but also ethical rebuke.
I had a call last week from two partners at a 25-lawyer firm. Their secretary arranged the call so I had no idea what it was about. At the appointed hour, they got quickly to the point. “When it comes to technology, we are still in the dark ages,” they said. They realized that, to remain competitive, their firm needs to change. But not all their partners are on board. They wanted outside help to better understand the benefits and risks.
They are no anomaly. My sense is that a lot of firms are still in the dark ages about technology. As these two partners correctly perceived, that is a competitive risk. What many lawyers fail to perceive, however, is that it is also an ethical risk. The very goal these two partners described – to better understand the benefits and risks of technology – is in fact an ethical duty in a growing number of U.S. states.
Four years ago next month, the American Bar Association formally approved a change to the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology. More specifically, the ABA’s House of Delegates voted to amend Comment 8 to Model Rule 1.1, which pertains to competence, to read (emphasis added):
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Maintaining Competence
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.
This being a model rule, it must be adopted in a state for it to apply there. I’ve been keeping a tally of the states that have adopted the duty of technology competence. So far, 21 states have done so. No doubt, there will be more to come.
But what exactly does it mean for a lawyer to be competent in technology? Unfortunately, we do not yet have a lot of guidance to help us answer that question. But we do have some.
One of the most detailed discussions of this issue came in the form of an ethics opinion last year from the State Bar of California. Part of the reason that Formal Opinion No. 2015-193 was so striking was that it dealt with technology competence in the context of e-discovery.
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Many attorneys still think of e-discovery as an esoteric specialty – an area of practice better left to others to understand. But this ethics opinion makes clear that, in an age when any case can involve electronic evidence, every attorney who steps foot in a courtroom has a basic duty of competence with regard to e-discovery.
“Not every litigated case involves e-discovery. Yet, in today’s technological world, almost every litigation matter potentially does. The chances are significant that a party or a witness has used email or other electronic communications, stores information digitally, and/or has other forms of ESI related to the dispute.”
Of course, that still begs the question of what it means to be competent in e-discovery. The answer to that question will depend on the case, the opinion says. At a minimum, however, it requires an attorney, at the outset of a case, to assess what e-discovery issues might arise.
If e-discovery will probably be sought, the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide the client with competent representation. If an attorney lacks such skills and/or resources, the attorney must try to acquire sufficient learning and skill, or associate or consult with someone with expertise to assist.
That is the key: You need to know enough about e-discovery to assess your own capability to handle the issues that may arise and, if you lack sufficient capability, you can effectively “contract out” your competence to someone else. That someone else could be another attorney in your firm, an outside attorney, a vendor or even your client, the opinion says, provided the person has the necessary expertise. (You cannot, however, contract out your duty to supervise the case and protect your client’s confidentiality.)
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A few court cases have provided some further definition to the duty of technology competence. For example, in a 2014 case from the Supreme Court of North Dakota involving a jury’s discovery of digital audio on a video DVD, Justice Daniel J. Crothers seized the occasion to write a concurring opinion about the duty to be competent concerning the technology issues that may arise in evidence.
Although the opinion came before North Dakota’s subsequent adoption of Comment 8, Justice Crothers cites the ABA rule to caution that “lawyers and judges increasingly must be vigilant about identifying and knowing precisely what ‘evidence’ is being admitted.”
The ABA rule was also cited by the Delaware Court of Chancery in making short shrift of counsel’s excuse for discovery violations. “I have to confess to this Court,” he said, “I am not computer literate. I have not found presence in the cybernetic revolution.”
Noting that Delaware had adopted Comment 8, the court said: “Professed technological incompetence is not an excuse for discovery misconduct.”
The California ethics opinion and these two court opinions discuss technology competence in the context of litigation. The duty, however, extends to the entirety of a lawyer’s practice, including to the systems and software used to operate a law office and manage its matters and clients.
If you, like that lawyer in Delaware, have yet to find presence in the cybernetic revolution, or if your firm, like the one of those lawyers I spoke with last week, is still in the technological dark ages, you should beware: You face not just obsolescence, but also ethical rebuke.
Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).
