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Technology and the Changing of the Rules of Professional Conduct

TechnologyLuddites and technophobes have no place in the modern practice of law, as least not according to recent changes in the rules of professional conduct.   Technology has found embedded itself into the practice of law.

Technology advances are constantly changing the way we practice just as technology is changing our lives in so many other ways.   One law firm recently brought a new associate into the firm and its name is ROSS, the artificial intelligence that does research to help with its research issues.  E-filing is being adopted in every court system.  E-discovery is changing the litigation paradigm.  Cybersecurity has become a concern of every law firm.  And Legal Zoom is dominating the legal services marketplace.

In looking to the future, we must think exponentially.  The law of accelerating returns is bringing more advanced changes and technologies sooner than we can anticipate.   Lawyers can no longer afford to be sluggish in learning and using these new technologies.

The rules of professional conduct have been changing in recognition of the advancing technologies and are requiring lawyers to adapt to the changes.  Lawyers are now required to adapt and utilize technology to better serve our clients.

A lawyer now has an articulated duty to maintain technological competency.  The Illinois Code of Professional Responsibility was amended in September, 2015, and lawyers are now required to keep up with technology to best represent their clients and the number of states adopting these changes is increasing.  The ABA Model Rules were changed in 2014 require lawyers to keep abreast of technology.

Clients hire lawyers for their competency, and a lawyer’s proficiency in technology is presumed.  It’s no longer a question of using email or a smartphone or an iPad, but rather a question of using email while protecting your client’s secure data and understanding the metadata in emails you are reviewing.  You can no longer litigate at any level – civil and criminal – without an understanding of how technology works and how to secure data.  Law students are now studying these issues in law school, and the gulf between the old and new is widening every day.  And the CLE courses do nothing to really educate practitioners in information technology let alone how to manage and use digital evidence.

Last year the California State Bar adopted an opinion outlining the skill and competency that lawyers should have in handling a case the involves e-discovery.  Formal Opinion No. 2015-193 states that lawyers handling e-discovery must be competent in these basic tasks:

  • Assess e-discovery needs and issues, if any.Technology 2
  • Implement appropriate ESI preservation procedures.
  • Analyze and understand a client’s ESI systems and storage;
  • Advise the client on available options for collection and preservation of ESI;
  • Identify custodians of potentially relevant ESI;
  • Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
  • Perform data searches;
  • Collect responsive ESI in a manner that preserves the integrity of that ESI; and
  • Produce responsive non-privileged ESI in a recognized and appropriate manner.

Each of these tasks assumes a certain level of competence and if you as a lawyer don’t understand this, you are in trouble.  If the lawyer is not familiar with the issues, he must associate with lawyers or experts who are familiar with the technology.

Where do you fit into this technology competence scale?

One of the biggest issues practicing lawyers have is to just try to catch up to the technological changes and advances.  This should be the role of the bar associations.

And it remains difficult for consumers to find competent lawyers with experience or expertise in certain practice areas.    Many lawyers are taking on complex litigation cases that they have no experience with and that only results in client dissatisfaction, negative ratings, malpractice claims and ARDC complaints.  So, if you want to practice law in this rapidly changing technology revolution, get with it and start learning what it takes to be a competent lawyer.