The document discusses the ethical implications of using or not using technology in legal practice. It summarizes changes made by the ABA's Commission on Ethics 20/20 regarding competency in technology, confidentiality of electronic data, and e-discovery. The changes emphasize the duty of attorneys to maintain technological competence, safeguard confidential electronic information through reasonable means, and demonstrate competency regarding e-discovery obligations and processes. Failure to do so could result in disciplinary action or malpractice. Resources for further information on these topics are also provided.

1. Ethical Implications of the
Use (or Non-Use) of
Technology in Your Practice
Michael D. Cole

2. Who are you?
1. Solo
2. Small firm
3. Medium-sized firm
4. Large firm
5. Government
6. In-house

3. Who are you?
1. General Practice
2. Civil Litigation
3. Family Law
4. Criminal Litigation
5. Transactional
6. Other

4. Who are you?
1. Missouri
2. Illinois
3. Missouri & Illinois
4. Other

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. 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. ABA’s Commission on Ethics 20/20
 “Begin with the end in mind.”
• Stephen Covey, author The 7 Habits of Highly
Effective People

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. 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. 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. 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. 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. 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. 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. 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. Illinois Bar

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. 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. 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. 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. 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. Technological Competency
So what does “…the benefits and risks
associated with relevant legal technology…”
mean?
• Technological competence
• Kia test
• Suffolk/Flaherty test
• LTC4

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. 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. Technological Competency
“Why shouldn’t your clients do the same if you refuse
to use relevant technology in your practice.”

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. 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. 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. 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. 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. 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. 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. E-discovery Competency
I have clients that only use documents hand
written or typed on a typewriter?
1. Yes
2. Maybe
3. No

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. 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. Judges are being educated

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. 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. 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. Resources for more information
Technology Competence:
www.google.com
Microsoft Support
http://www.cetc.umsl.edu/

41. Resources for more information
Technology:
ABA Law Practice Division
International Legal Technology Association
Legaltech News

42. Resources for more information
The Sedona Conference – Working Group 1
BAMSL – E-Discovery Committee
Women in eDiscovery
E-discovery blogs like ediscoverylaw.com