The American Bar Association (ABA) approved an important new resolution in August that requires lawyers to keep pace with “relevant technology” in order to comply with their obligation to competently represent clients. Although the resolution has largely flown under the radar, the change is significant because the ABA Model Rules of Professional Conduct (Model Rules) serve as a guide for the ethical rules governing lawyers in most states. Failure to comply with state ethics rules can lead to various penalties for lawyers, including temporary or permanent disbarment. That means in-house counsel need to understand the level of technological proficiency required to competently represent clients today and in the future.
Amended Model Rule 1.1 and the duty of competence
Model Rule 1.1 addresses the “client-lawyer” relationship and provides that a lawyer owes clients what is commonly referred to as a “duty of competence.” Model Rule 1.1 explains that duty as follows:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Newly amended Comment 8 to Model Rule 1.1 provides additional guidance by explaining that:
“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.” (emphasis added)
The amendment to Comment 8 illustrates the ABA’s desire to nudge lawyers into the 21st century when it comes to technology. However, page six of the report accompanying the resolution suggests only a gentle nudge:
“The proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.”
Does the amendment change the game for in-house lawyers?
The amendment to Model Rule 1.1 may not immediately change the game for lawyers, but it reinforces what most already know, yet some ignore. Lawyers owe clients an ethical duty to obtain technical proficiency sufficient to ensure competent representation of clients. The challenge is that the level of technical proficiency required is not always clear, may vary depending on the lawyer’s area of practice and is likely to evolve in today’s rapidly changing technological environment.
Although Comments 1 and 2 to the rule allow lawyers to consult or associate with other lawyers to establish competence, mere association or consultation with others may not be enough. For example, many lawyers would be hard-pressed to provide competent legal representation in today’s era of electronic information without understanding how to use email, create electronic documents or otherwise use a computer. We live in an era where relying exclusively on secretaries or staff to overcome a lack of basic computer proficiency is typically not in line with the reasonable expectations of clients, other lawyers or the bench. The rapid evolution of technology in today’s society is likely to make compliance with the mandate of Rule 1.1 even more difficult in the future for some lawyers.
For example, the line between technological proficiency and a lawyer’s duty of competence blurs when exploring more complicated technological issues. Do corporate lawyers have a duty to understand the legal ramifications of moving all company email to the cloud? Is the company using outdated data loss prevention or encryption software that places its intellectual property in jeopardy? Could counsel potentially save the company millions in discovery costs by bringing e-discovery software in-house? Is technology being used to help enforce document retention policies? In-house lawyers commonly face these and other questions that can dramatically affect the company’s risk profile and even the bottom line.
Amended ABA Model Rule 1.1 is a good reminder that failing to obtain basic technological proficiency runs contrary to a lawyer’s duty of competence. Unfortunately, many attorneys tend to avoid technology-related issues that fall outside their comfort zone and relinquish important decisions to other departments without proper legal analysis. Recognizing whether to obtain the requisite degree of technological competence directly or by associating with others will likely continue to be a challenge for some lawyers today and in the future. Smart lawyers will realize that obtaining technological proficiency directly will not only help them satisfy the mandate of Model Rule 1.1, but also will empower them to serve as stronger advocates on behalf of their clients and result in competitive advantages.