In 2019, lawyers have a duty to stay on top of changes in technology. This requirement first appeared in 2012 when the ABA amended the comments to Model Rule 1.1 to indicate that technology competence is a requirement for lawyers. Specifically, Comment 8 was amended to include the following:
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.”
Since then the majority of jurisdictions (36) have adopted this requirement.
In 2018 Louisiana joined their ranks in its own unique way when it amended its Code of Professionalism (which is a set of principles separate from its Rules of Professional Conduct) by adding the following two provisions regarding technology competence:
“I will use technology, including social media, responsibly. My words and actions, no matter how conveyed, should reflect the professionalism expected of me as a lawyer.”
“I will stay informed about changes in the law, communication, and technology which affect the practice of law.”
Notably, these two statements regarding technology differ quite a bit from the language that the other jurisdictions have incorporated into their Rules of Professional Conduct. While this choice of wording and the decision to include the statements in the Code of Professionalism rather than amending the Rules of Professional Conduct may at first blush seem insignificant, a recent ethics opinion issued by the Louisiana State Bar Association is indicative of a perspective on technology competence — and on technology itself — that differs substantially from that of other jurisdictions.
Under consideration in PUBLIC Opinion 19-RPCC-021 (online: http://files.lsba.org/documents/Ethics/EthicsOpinionLawyersUseTech02062019.pdf), which was handed down in February, was the ethical obligations of lawyers who use technology. Importantly, in framing the issue, the bar seemed to imply that lawyers do not necessarily need to use technology in order to practice law in 2019, and that if they choose to do so, only then do they have an obligation to understand it.
The focus of the opinion is on the many dangers of using technology, with an emphasis on the many risks lawyers face when doing so. The tenor of the opinion is evident from the very start when the bar characterizes the approach taken any other jurisdictions in the following manner:
“The consensus is that if a lawyer is going to use technology, that lawyer has a duty to comply with Rules 1.1, 1.3, 1.4, 1.6 and 1.15 of the ABA Model Rules of Professional Conduct. Lawyers must use technology competently and diligently. (Emphasis added).”
Then towards the end of the opinion the bar again suggests that using technology is a choice for lawyers:
“(I)f a lawyer chooses to use technology in the lawyer’s practice, basic issues must be addressed. (Emphasis added).”
Compare these statements to the explanatory language quoted above (that most states have adopted into the comments to their Rules of Professional Conduct):
“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.”
In the preceding sentence, knowledge of technology is part of the duty to maintain competence. Technology know-how is not optional, and it is not something that a lawyer can avoid simply by choosing not to use technology.
In other words, the consensus regarding technology competence is not that lawyers must be competent only if they choose to use technology. Instead the consensus is that in 2019, lawyers must understand technology so that they can make educated decisions regarding whether and how to use it in their practices.
This is an important distinction since in 2019 it is impossible for lawyers to practice law without encountering — and thus necessarily gaining an understanding of — technology in one form or another. And the failure of lawyers to understand how a given technology works and how it will affect their clients’ matters is a violation of the duty of competence at best, and malpractice at worst.
For example, litigators need to understand how social media platforms work in order to assess whether social media evidence exists that would benefit or harm their clients’ matters. The failure to do so could arguably result in malpractice in some cases.
Similarly many jurisdictions are now requiring e-filing in some courts. A basic understanding of the concepts related to digital documents and e-filing, including proper redaction techniques, is needed in order to competently represent clients and timely file papers with the court.
For other lawyers, a basic understanding of ediscovery procedures is a prerequisite to competent representation of their clients. Similarly for lawyers handling matters involving potentially sensitive issues secure client communication options other than unencrypted email must be carefully considered in order to properly protect confidential client data.
These are only a few examples of how technology unavoidably overlaps with the practice of law. So, to put it mildly, I was extremely surprised by the tenor of the Louisiana opinion. Not only does it represent a marked shift from the approach taken by other jurisdictions — it seemingly flies in the face of the realities of practicing law in the 21st century. The proper framework for addressing the impact of technology on the practice of law and lawyers’ ethical obligations when doing so is not to ask if a lawyer will use technology, but when.
Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester, New York, and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at [email protected]