If you’ve ever hired a lawyer, you already know that it’s a challenge to find the right law practice. This is particularly true when you need help with ediscovery, Intellectual Property, or technology law—areas in which technical issues merge with legal ones.
An overwhelming number of websites, blogs, digital ads, and quasi-legal technology companies tout their expertise relating to any legal issue you can imagine. Here’s something you won’t see on those sites but need to decide before you seal the deal: are they technically competent to handle your business, and will they protect your sensitive company information?
One of the major issues that many law practices grapple with relates to dinosaur thoughts—an “old ways are best” mentality.
Dinosaurs Take Risks With Technology
There are dangerous dinosaur thoughts pervading lawyers’ views regarding the adequacy of their technical knowledge, practices, and firm systems. Dinosaurs say quaint things like:
- “Fax and email are secure ways to communicate with clients.”
- “It’s ok to use public WiFi, as long as it’s the airport, hotel, or Starbucks.”
- “Ediscovery is just like paper discovery, except there’s no boxes or warehouses.”
- “I don’t see a problem with using my firm-issued smart phone to download my favorite free game app and post comments and pictures on social media.”
Dinosaur thoughts can cause trouble if IT personnel or other colleagues at the firm don’t temper them and educate their colleagues regarding the risks.
The Old World is a Dangerous Place to Live
Recent spectacular corporate data losses and publicized hacks (think Sony, Target, and JP Morgan) highlight the frequency and scale of cybersecurity issues. At least one leaked global surveillance effort supported by the NSA focused on electronic information involving U.S. law firms. These realities should sensitize law firm clients to the importance of data protection protocols and secure infrastructure at the firm. All of the above highlights the importance of technical competence in the practice of law.
Additionally, about a decade ago, the groundbreaking Zubulake series of opinions were issued. These opinions firmly established the concept that technical competence is a necessary component of effective legal representation and a lawyer’s ethical obligation to clients. Dinosaur thoughts were not welcome in Judge Scheindlin’s courtroom in the Zubulake cases, nor are they today. Now more judges are talking about the importance of technical competence. As the district court vented in Allstate Ins. Co. v. Linea Latina de Accidentes, Inc.
Every federal district court has now embraced electronic filing. The days of attorneys being able to ignore the computer and shift blame to support staff in the event of an error are gone. The consequences are too serious. To the extent there are attorneys practicing in federal court who are under the impression that someone in the Clerk’s office will comb through their filings for errors and call them with a heads-up, the Court delivers this message: ‘It is the responsibility of counsel to ensure that personal identifiers are properly redacted.’
That district court sanctioned a lawyer who filed a Complaint with attachments containing personal identifiers in unredacted form. He then refiled the documents, but the second filing was not much better; it contained removable redactions that could be deleted to expose the underlying information. Clearly, counsel did not understand how to properly apply redactions to a PDF image file.
In delivering its sanction decision, the Allstate Insurance court concluded that attorneys “who are slow to change run the very real risk of sanctions,” and have no excuse for not complying with the Federal Rule’s requirement of redacting personal information from public electronic filings. This is only one example of a technical competence issue that can lead to devastating consequences for both counsel and client.
Rise of the Technology Lawyer
While lawyers need some technical competence if they are practicing law today, the skills and knowledge required vary depending on their practice areas and client needs. In fact, in 2012, the American Bar Association (ABA) changed the ABA Model Rules of Professional Conduct (Model Rules) and explicitly included technical competency requirements for the first time. This change requires lawyers to keep pace with “relevant technology” to comply with their ethical obligation to competently represent clients.
Model Rule 1.1 addresses the “client-lawyer” relationship and provides that a lawyer owes clients a “duty of competence.” This Rule explains: “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” While the Rule remains the same, Comment 8 now explains that lawyers should become educated regarding the benefits and risks associated with technology relevant to their practice.
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.
Comment 8 to Model Rule 1.1, Maintaining Competence (emphasis added). This illustrates the important role that technology plays in the practice of law today.
This seemingly minor change to an advisory comment is significant because the Model Rules serve as a guide for the ethical rules governing lawyers in most states, including Virginia. So the Model Rules now formally require lawyers in those jurisdictions following them to understand technology, including technology that relates to fulfilling ediscovery obligations and protection of client confidences. Failure to comply with these ethics rules can lead to temporary or permanent disbarment or suspension of their license to practice law.
Technical Competence Matters
Rules aside, in-house counsel should understand the level of technical proficiency required for their internal team and outside counsel to competently represent the company’s interests – and in-house counsel should hire accordingly.
Outside counsel must receive training regarding the technologies that support the practice, clients’ businesses, and the best ways to minimize risks and maximize benefits associated with its use. Additionally, technical competence is important to satisfy counsel’s obligations to the Court, the clients, and the opposing parties in a litigation or regulatory investigation.
In short, we are practicing law in a brave new world, and technology plays a starring role. Whether it’s a predictive coding technology, cell phone tracking technology, or the firm’s or company’s communication software and systems—we must roll up our sleeves and learn how to use it. Clients should demand nothing less.
This blog post relates to a paper prepared for the Journal of Law and Technology (JOLT) Symposium, which will be held on February 27, 2015, at the University of Richmond School of Law. This year, the symposium will focus on mobile technologies and explore the legal, practical, and technical issues relating to the important role they play in our lives.