COVID-19 has catapulted us into a world in which virtually all legal services are conducted online. Ethics rules require lawyers to maintain competence, and many states require lawyers to stay abreast of relevant technology. Rules of ethics and professional conduct generally do not impose greater or different duties upon practitioners operating online than those attorneys practicing in a traditional office environment, but the rules may have different implications in a virtual environment. How can lawyers maintain these obligations while utilizing technology during the current global health crisis?
Cybersecurity is important for everyone, but especially for attorneys tasked with securely communicating and keeping client information. When sharing a communication that contains confidential and/or privileged information relating to the representation of a client, the lawyer should take reasonable measures and act competently so that the confidential and/or privileged client information will not be revealed to unintended third parties.
Recognizing that technology has created new ways to store and share data and communicate while generating new potential liability for attorneys, the American Bar Association created a Commission on Ethics 20/20 to study the impact of technology on the legal profession and to propose any changes to the Model Rules. The Commission noted that technology has changed the practice of law, and that “[l]awyers must understand technology in order to provide clients with the competent and cost-effective services that they expect and deserve.”[1] The ABA took note and amended the Model Rules of Professional Conduct in 2012[2] to state that lawyers have a duty to be competent in technology. Comment 8 to Model Rule 1.1, which pertains to competence, 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.
ABA Model Rule 1.1. Comment 8 (Emphasis added.)
The Model Rules provide guidance to the states in formulating their own rules of professional conduct, although states must adopt the rules for them to take effect. As of spring 2020, 38 states have adopted the revised comment to require lawyers to be technologically competent.[3] Most have done so verbatim, but a few states have adopted the rule and provided greater specificity.[4]
What does technical competence really mean? By design, the rule is vague.[5] The rule does not specify in what aspects an attorney must demonstrate technological competency. Since the requirement falls under the Duty of Competence, it is generally understood that lawyers must take reasonable steps “to protect their clients from ill-conceived uses of technology.”[6]
While the Model Rules do not require lawyers to be technology experts, all lawyers should have at least a basic understanding of the technologies they and their clients use. For example, a lawyer should know how to use case-management software, billing software, email and Microsoft Office applications. Lawyers should also know how to conduct searches online and use eDiscovery tools. A baseline level of competence in these areas is necessary.
Learning to use your technology tools is necessary for meeting your duty of competence, just as is learning substantive law, and the inability to use these tools could cost clients time and adequate representation. Look to improve in areas where you are wasting time or experiencing frustration. Now is a great time to brush up on your Microsoft Word and Outlook skills! Firms can also consider having attorneys take a legal technology assessment to establish how fluent their legal professionals are with basic technology tools, such as Word, Excel and Acrobat (PDF).[7] Companies can then use results to ensure their employees get the technology training they need and demonstrate to potential clients and others that their legal professionals are proficient with essential legal technology.
Note, too, that a lawyer has a duty to maintain client confidences and confidential information. Lawyers are required to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.”[8] That means attorneys must have access to necessary client files and data, and that access to such information is secure. While an attorney may maintain a virtual practice in the cloud (so that all communications and information is stored solely on the internet using a third party’s secure servers), attorneys may have to take additional steps to make sure they comply with ethical obligations. If an attorney outsources communicating and storing information to an outside vendor, that does not change the attorney’s obligation to take reasonable steps to protect and secure the client’s information. An attorney must also exercise reasonable due diligence in selecting and using such a vendor.[9]
Lawyers should also be aware of the web-based technology they are using. For example, over the past several weeks, many have joined videoconferences on Zoom, which offers a wonderful way to connect with colleagues and clients. But be aware that Zoom collects data from users about their devices, and that certain activities and data can be shared and transferred. While attorneys are not required to become technology experts, they do owe their clients a duty to have a basic understanding of the protections afforded by the technology they use in their practice. Don’t be afraid to reach out to technology professionals with questions.
An attorney also has a duty to effectively communicate with a client. Given that individuals vary in their access to and understanding of technology, make sure that your clients have sufficient access to technology and the ability to communicate through online means. This may be particularly important for attorneys who represent consumers who may not have easy access to technology and may have difficulty understanding material online. Be available and responsive to client needs — and make sure your clients and colleagues know how to reach you.
Also keep in mind that attorneys have a duty to supervise subordinate attorneys, as well as nonattorney employees and agents.[10] Supervision can be a challenge when attorneys — and their subordinates — are all operating out of different physical locations. An attorney must take reasonable measures to ensure that everyone under her supervision is complying with the Rules of Professional Conduct, including the duties of confidentiality and competence.
The ethical and professional rules might not impose greater or different duties upon attorneys operating in this “new normal,” but attorneys may need to take additional steps to make sure they are reasonably addressing ethical and professional issues. Keeping abreast of technological developments and new tools available will not only ensure that you comply with your ethical duties, it will also help you work more effectively and efficiently — which is good for you and your client.
[1] Katy (Yin Yee) Ho, “Defining the Contours of an Ethical Duty of Technological Competence,” 30 Geo. J. Legal Ethics 853, 862–63 (2017).
[2] See Model Rules of Professional Conduct, available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/.
[3] California has not formally adopted the language of the Model Rule, but it has issued an ethics opinion that expressly acknowledges that a lawyer has a duty to be competent in technology. State Bar of California Formal Opinion No. 2015-193 requires attorneys who represent clients in litigation to either be competent in e-discovery or associate with others who are competent. The opinion expressly cites the ABA’s Comment 8. One state, Florida, also requires attorneys to take three hours of technology-related CLE every three years.
[4] New York, Colorado, West Virginia and Florida, for example, have added additional specificity to their adopted rules. Jamie J. Baker, “Beyond the Information Age: The Duty of Technology Competence in the Algorithmic Society,” 69 S.C. L. Rev. 557, 562 (2018).
[5] “The amended language found in Comment 8 is amorphous. This vague language was purposeful, as the Chief Reporter of the ABA Commission on Ethics 20/20 — the Commission that was responsible for the amended language — explained, ‘the specific skills lawyers will need in the decades ahead are difficult to imagine.’” Jamie J. Baker, “Beyond the Information Age: The Duty of Technology Competence in the Algorithmic Society,” 69 S.C. L. Rev. 557, 560 (2018).
[6] Jamie J. Baker, “Beyond the Information Age: The Duty of Technology Competence in the Algorithmic Society,” 69 S.C. L. Rev. 557, 561 (2018).
[7] For example, Procertas (Professional Certifications and Technology Assessments) offers a Legal Technology Assessment, available at www.procertas.com/offerings/legal-technology-assessment.
[8] Model Rule 1.6.
[9] See, e.g., New York City Bar Report, The Cloud and the Small Law Firm: Business, Ethics and Privilege Considerations (Nov. 2013), available at www2.nycbar.org/pdf/report/uploads/20072378-TheCloudandtheSmallLawFirm.pdf; N.Y. State Bar Ass’n Op. 842 (2010) (explaining that it is permissible to use online computer data storage system to store client files, provided attorney takes reasonable care to maintain confidentiality, and lawyer must stay informed of both technological advances that could affect confidentiality and changes in the law that could affect privilege).
[10] See ABA Model Rule 5.1.