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Ethics - Duty of Competency & Technology

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Ethics - Duty of Competency & Technology

  1. 1. Ethical Implications of the Use (or Non-Use) of Technology in Your Practice Michael D. Cole
  2. 2. Who are you? 1. Solo 2. Small firm 3. Medium-sized firm 4. Large firm 5. Government 6. In-house
  3. 3. Who are you? 1. General Practice 2. Civil Litigation 3. Family Law 4. Criminal Litigation 5. Transactional 6. Other
  4. 4. Who are you? 1. Missouri 2. Illinois 3. Missouri & Illinois 4. Other
  5. 5. American Bar Association  Largest voluntary bar in the world  Over 410,000 members from all areas of law  Sets academic standards for law schools  Formulates model ethical codes for legal profession
  6. 6. ABA’s Commission on Ethics 20/20  Created in 2009  Charged with examining the Model Rules “…in the context of advances of technology and global legal development…”  One outcome was Resolution 105A passed by the ABA House of Delegates at August 2012 Annual Meeting
  7. 7. ABA’s Commission on Ethics 20/20  “Begin with the end in mind.” • Stephen Covey, author The 7 Habits of Highly Effective People
  8. 8. ABA’s Commission on Ethics 20/20  “Technology can increase the quality of legal services, reduce the cost of legal services to existing clients, and enable lawyers to represent clients who might not otherwise have been able to afford those services.” • Conclusion to Report that accompanied Resolution 105A
  9. 9. ABA’s Commission on Ethics 20/20  “Lawyers, however, need to understand that technology can pose certain risks to clients’ confidential information and that reasonable safeguards are ethically required.” • Conclusion to Report that accompanied Resolution 105A
  10. 10. Resolution 105A’s changes  Rule 1.0 - Terminology, subsection (n) • Replaced “e-mail” with “electronic communication”  Rule 1.0 - Terminology, comment 9 • Screened was amended to substitute “information, including information in electronic form” for “material”
  11. 11. Resolution 105A’s changes  Rule 1.1 - Competence • Comment 6 (now 8) re-written to state: • 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.
  12. 12. Resolution 105A’s changes  Rule 1.4 - Communication, comment 4 • Sentence regarding client telephone calls was changed to state “[a] lawyer should promptly respond to or acknowledge client communications.”
  13. 13. Resolution 105A’s changes  Rule 1.6 – Confidentiality of Information • New subsection (c) • “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information related to the representation of a client.” • Comment 16 (now 18) • “Acting Competently to Preserve Confidentiality” • Re-written with significant additions – main point is that standard is reasonableness
  14. 14. Resolution 105A’s changes  Rule 1.6, comment 16 (now 18) • Factors to be considered regarding reasonableness • “the sensitivity of the information, • the likelihood of disclosure if additional safeguards are not employed, • the cost of employing additional safeguards, • the difficulty of implementing the safeguards, and • the extent to which the safeguards adversely affect the lawyer’s ability to represent clients…”
  15. 15. Resolution 105A’s changes  Rule 4.4 – Respect for Rights of Third Persons • Section (b) • “…or electronically stored information” was added to the rule • Comment 2 • Additions to comment to explain inadvertent sending • Noted that “metadata” is covered by the rule
  16. 16. Illinois Bar
  17. 17. Missouri Bar  Joint Task Force of the Supreme Court of Missouri and The Missouri Bar on the Future of the Profession  “All of us – judges, court personnel and lawyers – need to utilize the efficiencies technology offers to help us fulfill our constitutional mandate to serve the public. Technology is the key to our survival as a legal system.” -Chief Judge Mary Russell
  18. 18. Technological Competency Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
  19. 19. Technological Competency Rule 1.1 Competence Comment 8 – Maintaining Competence: 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. (was Comment 6 when passed)
  20. 20. Technological Competency “Comment (6) already encompasses an obligation to remain aware of changes in technology that affect law practice…” “The proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers.” Subsection III – Report accompanying Resolution 105A
  21. 21. Technological Competency “Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.” Subsection III – Report accompanying Resolution 105A
  22. 22. Technological Competency So what does “…the benefits and risks associated with relevant legal technology…” mean? • Technological competence • Kia test • Suffolk/Flaherty test • LTC4
  23. 23. Technological Competency “A trial lawyer who goes to trial without using any software may well be failing to practice using the requisite standard of care.” “Similarly, an attorney who does not consider whether a document provided by opposing counsel has relevant metadata may have failed to represent his or her client fully.”
  24. 24. Technological Competency “An attorney who does not warn his or her client about social media and the effect it could have on the matter is almost certainly providing inadequate representation.” “If you went to a doctor who refused to order an MRI because MRIs didn’t exist when he went to medical school, you would find another doctor.”
  25. 25. Technological Competency “Why shouldn’t your clients do the same if you refuse to use relevant technology in your practice.”
  26. 26. Technological Competency  According to the most recent report from the Missouri Disciplinary Counsel, billing disputes are the fourth most common complaint.  In Rule 4-1.5 the first listed factor “to be considered in determining the reasonableness of a fee” is “the time and labor required.”
  27. 27. Confidentiality Issues Confidentiality of client information addressed in multiple places  Explicitly addressed in changes to Rule 1.6 Confidentiality of Information  Also addressed by change to comment 6 to Rule 1.1 Competence
  28. 28. Resolution 105’s changes  Rule 1.6 – Confidentiality of Information • New subsection (c) • “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information related to the representation of a client.” • Comment 16 (now 18) • “Acting Competently to Preserve Confidentiality” • Re-written with significant additions – main point is that standard is reasonableness
  29. 29. Resolution 105’s changes  Rule 1.6, comment 16 (now 18) • Factors to be considered regarding reasonableness • “the sensitivity of the information, • the likelihood of disclosure if additional safeguards are not employed, • the cost of employing additional safeguards, • the difficulty of implementing the safeguards, and • the extent to which the safeguards adversely affect the lawyer’s ability to represent clients…”
  30. 30. Confidentiality Issues So what does “…benefits and risks associated with relevant legal technology…” mean? • Confidentiality – Data protection • How to safeguard data • How do you receive data/information from the client? • How do you distribute data/information to others?
  31. 31. Confidentiality Issues So what does “…benefits and risks associated with relevant legal technology…” mean? • Confidentiality – Data protection • Use of passwords • Are you using a weak password? • Are you sharing passwords? • Use of encryption • Are your devices encrypted?
  32. 32. E-discovery Competency  All litigation has e-discovery now  Everyone uses email or other electronic medium to communicate  Even simple car crashes/personal injury cases now have ESI
  33. 33. E-discovery Competency I have clients that only use documents hand written or typed on a typewriter? 1. Yes 2. Maybe 3. No
  34. 34. E-discovery Competency I have clients that never use email, faxes, scanners, computers, or smart/cell phones? 1. Yes 2. Maybe 3. No
  35. 35. E-discovery Competency - Resources Sedona Working Group  Issues commentaries or primers that discuss specific topics  Glossary on E-discovery & Digital Information Management The Electronic Discovery Institute  Studies litigation processes for state & federal judiciary
  36. 36. Judges are being educated
  37. 37. Judges are being educated “…LeClairRyan attorneys did not, and still do not, comprehend that it is their duty to become actively engaged in the discovery process, to be knowledgeable about the source and extent of ESI, and to ensure that all gathered data is accounted for…” HM Electronics, Inc. v. R.F. Technologies, US District Court – S.D. of California, 2015 WL 4714908 (August 7, 2015)
  38. 38. Judges are being educated “The attorneys’ total abdication of their obligation to communicate the duty to preserve evidence to their client in an effective manner warrants severe sanctions.” HM Electronics, Inc. v. R.F. Technologies, US District Court – S.D. of California, 2015 WL 4714908 (August 7, 2015)
  39. 39. Judges are being educated  Sanctions levied against client, law firm, and lead partner in charge of litigation.  Sanctions included compensatory sanctions in the form of all attorneys’ fees and costs incurred by plaintiff & adverse instruction to be read to jury. HM Electronics, Inc. v. R.F. Technologies, US District Court – S.D. of California, 2015 WL 4714908 (August 7, 2015)
  40. 40. Resources for more information Technology Competence: www.google.com Microsoft Support http://www.cetc.umsl.edu/
  41. 41. Resources for more information Technology: ABA Law Practice Division International Legal Technology Association Legaltech News
  42. 42. Resources for more information The Sedona Conference – Working Group 1 BAMSL – E-Discovery Committee Women in eDiscovery E-discovery blogs like ediscoverylaw.com

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