Illustrator: Daniel Hertzberg
Without much fanfare, the American Bar Association's Commission on Ethics 20/20 has proposed significant, far-reaching rule and comment changes to its Model Rules of Professional Conduct focusing on the digital practice of law. These much-needed proposed changes finally recognize that the practice of law has undergone a digital transition and that technology affects attorneys and clients in litigation, business, and personal endeavors on a daily basis.
For example, Apple's iPads and iPhones and other mobile devices are now commonplace, and used to transmit telephone calls, email, and instant and text messages. They are also used to access audio and video files, and the internet including Facebook and other social media sites.
Today, attorneys commonly use laptop computers and other mobile devices to set up virtual offices, connect wirelessly to their clients, and conduct business remotely. (See "Unleashed," Law Technology News, June, 2012.) However, the benefits of these technologies bring associated significant risks, including security, privacy, and confidentiality, among others.
In 2009, then-ABA President Carolyn Lamm created the Commission on Ethics 20/20 to conduct a thorough review of the MRPC as well as the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments. The commission undertook a three-year study of how globalization and technology are transforming the practice of law and how the regulation of lawyers should be updated in light of those developments.
It reports: "Technology affects nearly every aspect of legal work, including how we store confidential information, communicate with clients, conduct discovery, engage in research and market legal services. Even more fundamentally, technology has transformed the delivery of legal services by changing where and how those services are delivered (e.g., in an office, over the internet or through virtual law offices), and it is having a related impact on the cost of, and the public's access to, these services."
As a result of the study, the commission has submitted six resolutions to the ABA House of Delegates for consideration this month; a second set of resolutions will be submitted for consideration in 2013. The first six resolutions are titled: "Technology & Confidentiality," "Technology & Client Development," "Outsourcing," "Practice Pending Admission," "Admission by Motion," and "Model Rule 1.6 (Detection of Conflicts of Interest)."
The commission's resolutions and reports can be found at http://bit.ly/OGxwny. Of special interest are not the proposed changes to the model rules (though those are obviously important), but the changes to the comments to the rules which affect and, in effect, demand, lawyers' consideration and use of technology. In particular, the commission strikes at the heart of the practice of law: competence.
The commission proposes that the ABA amend its model rules "to provide guidance regarding lawyers' use of technology and confidentiality." Specifically, the commission proposes to revise the "Comment to Model Rule 1.1." The rule states: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
Currently, "Comment 6" explains: "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject." The commission has proposed that "Comment 6" be revised to read: "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." (Changes noted with italics.) These additional words are a game changer.
In a surprising statement, the commission stated that "this obligation is not new. Rather, the proposed amendment emphasizes that a lawyer should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer's general ethical duty to remain competent in a digital age." So what does the phrase "including the benefits and risks associated with relevant technology" mean? The commission explained that this phrase pertains also to "how lawyers conduct investigations, engage in legal research, advise their clients, and conduct discovery. These tasks now require lawyers to have a firm grasp on how electronic information is created, stored, and retrieved."
The commission identifies other "notable developments" in technology that have impacted the practice of law to include electronic communication; mobile electronic storage; third-party servers; how clients find lawyers; virtual offices; and online practice management.
So, lawyers are now on notice, regardless if the proposals are passed by the ABA the commission itself noted that these technology obligations are not new, but the comment merely serves as a reminder that you must be technologically competent.
For example, let's focus a minute on how this fundamentally affects your practice in one specific practice area litigation. The commission explained that lawyers are now required to have a firm grasp on "how electronic information is created, stored, and retrieved." Thus, a "competent" lawyer must understand deleted information, unallocated space, active files, fragmentation, document retention policies, inaccessible storage media, metadata (application and system), audit trails, directories, predictive coding virtual systems, encryption, and social networking sites to name a few. All of these technological concepts pertain, and are important, as to "how electronic information is created, stored, and retrieved," which is relevant to litigation competence.
Let's face it lawyers historically have ignored (and still do) the technological issues affecting client communications, discovery and production of electronically stored information, and other digital issues in their practice. We see it daily in sanctions handed down by the court in e-discovery cases for confidentiality breaches of clients' electronic information, or chastizing lawyers who fail to use litigation search technologies that reduce costs and provide greater access to justice.
Though the commission used the phrase, "[b]ecause of the sometimes bewildering pace of technological change," the transition to widespread use of digital technology has been in effect since 1985, more than 25 years ago. This is hardly a "bewildering" pace of change, unless you have stayed in a cave and remained a Luddite. Now more than ever is the time to commit to understanding digital change and ensure that you can competently handle your client's needs. The revised comment to Model Rule 1.1 requires that lawyers keep pace with technology and assess the benefits and risks associated with each new relevant development, or risk being deemed incompetent.
BENEFITS & RISKS
There are a wide range of "benefits and risks associated with relevant technology" that clearly run well beyond email and document creation:
Law practice tools, such as practice management software, digital dictation software, templates and forms of legal documents.
Legal and factual research tools, such as Westlaw, Lexis, PACER, Google, and others.
Communication, the means of communication, its security, and access to lawyers.
Discovery, access to electronically stored information,preservation of digital evidence, and predictive coding.
Video technology, the implications of video tools for use in depositions, conferences and trials.
Courtroom technology, such as trial presentation software and "smart" courtrooms and the implications of evidence display technology.
Michael Arkfeld is the principal of Arkfeld & Associates, based in Phoenix. Email: Michael@Arkfeld.com. Stephanie Loquvam is an attorney at Aiken Schenk Hawkins & Ricciardi, also based in Phoenix. Email: SML@ashrlaw.com.