Keeping current on rapidly changing and expanding technologies can be a daunting task even for the most tech-savvy and experienced attorney. However, attorneys have an ethical obligation to familiarize themselves and be competent with technology and electronic discovery. While most attorneys now recognize that discovery encompasses electronically stored information (ESI) like emails, new technologies require attorneys to expand their knowledge of ESI. Attorneys must now think beyond emails and consider other types of ESI such as encrypted data, social media, and cloud-based storage. The best way to maintain competence in e-discovery is to know the right questions to ask of your client, your e-discovery vendor, and your opponent.
Ethical Requirements
Both the American Bar Association and the New York State Bar Association have adopted standards requiring an attorney to be competent. Rule 1.1 of the American Bar Association Model Rules of Professional Conduct provides that “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The commentary to Rule 1.1 indicates that in order to maintain competence, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology …” The New York State Bar Association has likewise adopted this rule and published similar commentary stating that attorneys must understand the benefits and risks of technology.
