In 2012 Rule 1.1 of the ABA’s Model Rules—the duty of competence—was modified in Comment 8 to require that lawyers know and understand “the benefits and risks and associated with relevant technology.” Consistent with that change, Comment 8 to New York Rules of Professional Conduct (RPC) 1.1 states: “To maintain the requisite knowledge and skill, a lawyer should … (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.” As early as 2004, N.Y. State Bar Association Ethics Opinion 782 opined that a lawyer who uses technology to communicate with clients must use reasonable care with respect to such communication, and therefore must assess the risks attendant to the use of that technology.
In our Jan. 8, 2016 column “The Ethical Obligation to Be Technologically Competent,” we explored the meaning of this duty in connection with using technology in a manner consistent with lawyers’ duty to preserve clients’ confidences and secrets in the light of the growing threats to data security. In this article we will consider the much broader implications of this duty in the era of Artificial Intelligence and other critical developments in the high tech world in which lawyers now operate (willingly or not).
