How technologically competent are you?
An odd question, you might think. However, it’s one that you’re going to have to ask yourself more often as technological competence is becoming an increasingly important factor in deciding whether you as a lawyer can take on a case.
That’s because, four years ago this month, the American Bar Association (ABA) formally approved a change to its Model Rules of Professional Conduct that made it clear that lawyers have a duty to be competent not only in the law and its practice but also in technology.
Specifically, the ABA amended Comment 8 to Model Rule 1.1 to read:
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 technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
21 state bar associations have adopted it so far and, according to legal tech expert Robert Ambrogi in a recent interview with the legal tech podcast “The Digital Edge”, will “fairly soon be adopted by all states”.
What does it mean to be “technologically competent”?
The rule is still new, so there are precious few opinions or pieces of formal guidance to help explain the answer to this question. There is some information out there, though.
The California State Bar issued an ethics opinion in 2015 addressing eDiscovery competence. The opinion reasoned that “not every litigated case involves eDiscovery” but “almost every litigation matter potentially does. The chances are that a party or witness has used email or electronic communications, and/or has other forms of ESI related to the dispute.”
So, you can’t avoid having to handle and review ESI (that’s Electronically Stored Information, by the way). But what does it mean to be “competent” in eDiscovery? A recent analysis on the Above the Law blog of the California opinion noted that lawyers don’t personally need to be eDiscovery experts, but do need to know enough to supervise a case and find out when to outsource:
“You need to know enough about e-discovery to assess your capability to handle the issues that may arise and, if you lack sufficient capability, you can effectively “contract out” your competence to someone else. That someone else could be another attorney in your firm, an outside attorney, a vendor or even your client, the opinion says, provided the person has the necessary expertise. (You cannot, however, contract out your duty to supervise the case and protect your client’s confidentiality.)”
The duty, however, extends beyond the management of particular cases to the entirety of your practice, including to the tools and software you use to operate your law office and manage matters and clients. That means it extends to a reasonable knowledge of secure electronic communications.
The ABA reasoned back in 1999 that it was acceptable for lawyers to communicate with clients via email given that it was no more insecure than regular mail. However, it has subsequently updated its guidance so that lawyers now need to have at least a basic understanding of how electronic communication works. In a 2011 opinion, the ABA wrote:
“Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.”
That means lawyers need to understand the ways in which email is insecure — for example, perhaps the client will only be able to access messages in a public place, such as a library. It also means knowing the circumstances in which encryption is necessary and how it works. Encryption is one of those important but technically-daunting subjects that many lawyers would happily run a mile from. Fortunately, these days, it need not be complex. There’s an excellent introduction to encryption over on the ABA Journal website for those getting started.
Electronic filing and online case management
Now that more courts are adopting electronic filing and requiring electronic service of process, it’s vital that lawyers understand the different rules and procedures that apply to electronically- versus physically-delivered filings and, at the least, associate with a legal assistant or paralegal familiar with the court’s filing system.
Electronic filing need not be complicated. Systems, such as One Legal’s portal, make it as easy as filling in a few important case details and uploading your documents.
However, there are two areas you need to be aware of:
- First, documents must be formatted and prepared in a particular way — saved with optical character recognition applied so that they’re text searchable and with exhibits clearly bookmarked, for instance. You also need to be aware of the size of your file, since a file too large for the court’s system will likely be rejected.
- Second, different deadlines sometimes apply when documents have been electronically delivered as opposed to having been mailed or hand-delivered. It’s important that you’re familiar with the relevant sections of the civil procedure rules and clear about when your documents have been sent electronically.
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Is this really anything new?
If you’re in one of the 29 states that haven’t yet adopted the ABA’s model rule, you might be tempted to sit back and relax.
Aside from that being a highly questionable business decision, given the efficiencies that legal technology can bring, it’s also not likely to fly with the existing ethics rules. Those rules of competence require that a lawyer possess the “skill” reasonably necessary for representation.
Given the increasingly widespread adoption of mandatory electronic filing and service via email and the ubiquity of electronic communications, the days when a lawyer could avoid technology altogether are long gone.
Make sure you understand electronic filing. Download our free ebook — “How to produce a court-friendly PDF”