This article discusses some of the most critical risks facing lawyers from the use of technology, how to avoid them, and what duties arise when the worst happens. As a starting point, New York Rules of Professional Conduct (RPCs) require lawyers to “provide competent representation to a client” (RPC 1.1) and Comment 8 to that rule provides that “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.”
Numerous ethics opinions have reinforced this directive, explaining that lawyers are required to take reasonable steps to protect their clients from injury resulting from ill-considered uses of technology. Lawyers risk violating these basic requirements when they expose client data to theft, which necessarily involves the RPC 1.6 duty to preserve client confidences, and when they fall prey to malicious scammers.
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