Outdated Tech Can Trigger Discovery Violations and Other Ethical Issues
Lawyers are a savvy bunch. They tend to stay hyper-focused on the most recent changes in law and policy to better advocate for their clients and also because it is necessary to do so from an ethical perspective as part of the requirements for keeping up-to-date on continuing education credits.
What many lawyers don’t realize, though, is that a lack of competence and awareness of how technology integrates with the law can not only put them at a severe disadvantage in a highly competitive legal marketplace, it can actually put them on the hook for ethical sanctions and malpractice claims.
Four Years Ago, the ABA Changed the MRPC to Include a Duty of Competence in Technology
The Model Rules of Professional Conduct now include a revision to Comment 8 in Model Rule 1.1, which must be adopted by the state to apply to lawyers licensed in that jurisdiction. The new model rule makes clear that lawyers have a duty of competence in the practice of law — as well as in the application of technology to that practice. The new rule states (emphasis added):
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.
Again, since this is a model rule, it means that states have to adopt it for it to apply to lawyers in that particular state. But with 21 states on board and counting, the rule is quickly making its rounds, and lawyers should start assessing where their law firm stands with respect to technology sooner rather than later to avoid being non-compliant once the rule does take effect in their state.
How Can a Lawyer Become Competent in Legal Technology?
E-discovery is probably the most relevant and critical topic when it comes to legal ethics and compliance to date. In a recent ethics opinion from the State Bar of California, the discussion maintains that since nearly every case these days is potentially subject to electronic evidence, the attorneys who are involved in those cases have a duty of competence in their use of e-discovery tools.
So, what does it mean to be competent?
At the outset of a case, an attorney should set out to fully comprehend any e-discovery issues that might arise and outline guidelines for those issues as a road map in the event that e-discovery is sought. During that time, the attorney should assess whether his or her e-discovery technology skills and resources are sufficient to provide the client with competent representation. If the attorney feels that his or her particular technology skills are lacking, he or she must try to obtain sufficient education and skills to provide competence — or consult with someone who has the knowledge of current e-discovery rules and best practices to assist in moving forward.
Basically, an attorney should have enough knowledge about the rules and requirements of e-discovery to assess whether he or she has the competence to handle a case effectively. Should attorneys find that their firm is not capable of handling a case in which technology and e-discovery will be paramount to the process, the attorney can contract that competency requirement out to someone who does. This can include another attorney with the relevant competence or an IT vendor that specializes in legal technology.
It should be noted that incompetence in technology is not, according to the court, an excuse for discovery misconduct. Lawyers should also recognize that the duty of competence in technology extends well past the courtroom, into the entire law firm and practice — including any document management software and case management systems that the law firm uses to manage its cases and clients.
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