April 30, 2014
As a practicing attorney, you're probably thinking: "Of course I'm compliant!" But are you keeping up with all the new technology in your area of law? The American Bar Association's model Rule 1.1 states that you, as an attorney, must provide competent representation to your clients. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
While the rule isn't controversial on its face, questions regarding its relevance to technology have surfaced in recent years. These questions have been so critical to your practice of law that the ABA and many states are specifically addressing the connection between competency and technology.
Expansion of Rule 1.1
In 2009, the ABA created the Commission on Ethics 20/20 to look at the current rules, policies and changes within the legal field that applied to technology. After its analysis, the commission expanded the comment regarding your maintaining competence to directly reference technology. The ABA then in 2012 adopted the commission's comment to the rule. Competence is no longer merely legal knowledge but now encompasses your knowledge of and skills with technology. Comment eight of Rule 1.1 now states:
"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."
You have an ethical duty to be proficient in technology but what this means isn't always clear. Some practical implications of this duty are:
- You need to have a professional email address.
- You aren't required to use them but you need to be aware of social media sites, the ethical risks associated with using them and how they affect your cases.
- You need to understand the growing use of the cloud and how it affects law office management and your clients.
- You have to know the risks associated with using mobile devices and how to mitigate those risks.
- You must understand the basic issues of data security and implementing any necessary security measures for your law office, such as using strong passwords and encrypting the information on your devices.
- You need to keep up with e-discovery and e-filing practices.
While the ABA model rule is not a regulation you're required to follow, you are required to know and adhere to your state's ethical rules. Technology's influence in your practice and the legal field will continue to expand and you should make sure you satisfy your jurisdiction's competency rules.