Technological Competence Becomes Part of Lawyer’s Duty of Competence

Simple ABA Model Rule amendment may have major ramifications on the practice of law.

Since I’ve been writing recently about the use (and misuse) of technology, I also wanted to provide some insight into an ABA Model Rule of Professional Conduct amendment approved last year. Not too much has been written about Rule 1.1 Comment 8, but it could impact your practice at some point now or in the future. Here is the actual text:

ABA Rules of Professional Conduct, Rule 1.1 Competence – Comment 8

“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. “ Click here to read the full set of Rule 1.1 comments.

This seemingly simple and aspirational update raises the bar (pun intended) on the level of technological knowledge required for legal competency. As attorneys, we should understand both the benefits and risks of utilizing technology in our practices as a basis for our duty to provide competent representation.

As the use of the word “should” clarifies, this is a wake-up call rather than a new obligation. Although the Georgia Bar has not adopted this comment yet, it’s time for us to:

• Adopt technology that will improve our practice of law and quality of client service.
• Be more knowledgeable of, and accountable for, the technology we do use.

Are you technologically challenged?

With a nod to comedian Jeff Foxworthy, if client conflict checks still involve yelling down the hall, or you get confused between the “reply” and “forward” functions of email, you might be a technology late adopter. If you send unencrypted client files through an open office computer network, you might be a late adopter. If you don’t understand what I just wrote, you might be a late adopter.

If your client data ends up in the wrong hands, you could be in serious trouble for violation of GA Bar Rule 1.6 – Confidentiality of Information.

Adopt, administer, and adjust

I won’t pretend to be your IT vendor, but here are five things you can do to help improve your technological competence while minimizing your risks and liability.

 Focus on building your technological proficiency. Add technology to your must-read topic list, keeping abreast of industry trends and best practices. Add technology courses to your CLE program. Adopt technology that will benefit your firm and clients, and just make life easier all around.

• Understand the technology you implement. You don’t need to know how to operate a cloud server or reprogram an iPhone, but make sure you understand and document the specific function, use, and risks of each adopted technology.
• Develop a comprehensive data security plan. This sounds scary, but at least cover the fundamentals of accessing, transmitting, and destroying client data. Your IT vendor can help with the systems aspect of the plan.
• Identify technology risks and liability. For example, if you use network services such as cloud computing, have the vendor specifically identify the potential security issues that may arise. All networks are perfect until the first data breach.
• Monitor the news for relevant data security issues. Train your staff based on the lessons others have learned. A couple of years ago a Texas law firm’s computers showed up at a local pawn shop with unencrypted client files. In another incident, a flash drive was found with hundreds of client records. Don’t make the same mistakes.

Finally, check your professional liability insurance policy to ensure that you are covered for all types of data and technology issues. If not, check out separate coverage available specifically for data breach and cyber liability. These endorsements are now more readily available in the marketplace.

In my opinion, the greatest threat to our industry today is breach of client confidentiality resulting from breach of technology. Let’s use the ABA Rule update as our wake-up call and establish a basic technological proficiency as part of our core duty of competence.

Douglas Chandler