Much has been written regarding a lawyer’s duty of competence in the digital age since the release of revised comment 8 to ABA Model Rule 1.1 nearly two years ago. That comment requires a lawyer to understand “the benefits and risks associated with relevant technology” as part of its overall duty to “keep abreast of changes in the law and its practice.” The relevant technological topics have largely focused on e-discovery and have been primarily directed to outside counsel.
Of particular interest is the draft ethics opinion that the California State Bar recently published regarding the impact of e-discovery on a lawyer’s duty of competence. That opinion generally focuses on the steps that outside counsel should take to competently deal with e-discovery. An overlooked though equally important question raised in connection with the opinion is the nature of in-house counsel’s ethical duties on these very same technological issues.