Recently, the Supreme Court of Illinois adopted an amendment to Comment 8 of Rule 1.1, including a duty of technological competence.1 The comment to the rule, which models the corresponding American Bar Association (“ABA”) rule, now reads as follows:
Rule 1.1, 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.
Rather than creating an additional duty of competence, the ABA has clarified that the comment “is [only] 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.”2
The rule is intentionally broad and encompasses a variety of aspects of legal practice, including the loss of privilege when sending emails, transferring documents, or responding to discovery requests,3 awareness of social media sites as a source of discoverable information,4 the growing use of cloud-based mechanisms for data storage,5 the risks associated with using mobile devices and basic data security issues,6 the use of technology to enforce document retention policies,7 the use of basic legal research tools and services,8 and recurrent issues like metadata within documents.9Additionally, there may be circumstances where a lawyer’s duty of competence requires her to seek (or advise a client to seek) additional assistance.10 Although the contours of the rule in Illinois are largely undefined, examples from other states with similar rules can help to guide lawyers.
Examples from Other States With Similar Provisions
For instance, in New Hampshire, the state’s bar association advised with respect to cloud computing that “[c]ompetent lawyers must have a basic understanding of the technologies they use” and that “as technology, the regulatory framework, and privacy laws [change], lawyers should keep abreast of these changes.”11 Similarly, in California, a proposed ethics opinion of the State Bar of California (Proposed Formal Opinion Interim No. 11-0004) would require attorneys, who are otherwise experienced, but lack a basic understanding of e-discovery, to either: (1) acquire sufficient knowledge and skill before taking on the representation; (2) associate with or consult technical consultants or competent counsel; or (3) decline the representation.12 The opinion expressly cites the ABA’s Comment 8 and states:
Maintaining learning and skill consistent with an attorney’s duty of competence includes “keeping abreast of changes in the law and its practice, including the benefits and risks associated with technology.”13
Likewise, in State v. Ratcliff, 849 N.W.2d 183 (N.D. 2014), Justice Daniel Crothers of the North Dakota Supreme Court, in his concurrence, warned that judges must know whether submitted evidence includes only the information visible on the face of the document or metadata in addition to such information.14 He observed that the distinction “is critical, both on an ethical and adjudicative basis,” and noted the “uncertainty, and hence concern, about where [the] holding will take [North Dakota jurisprudence] when electronically stored information becomes a greater source of evidence.”15 Importantly, these cases and examples illustrate that lawyers are not required to be technicians in addition to lawyers, but rather need to stay reasonable competent of technological changes and are required to seek assistance, where appropriate.16
Although the change does not become effective until January 1, 2016, lawyers should continue to remain apprised of developments and growing resources within their field that may benefit their clients and fulfill the requirements of Rule 1.1.
Read the entire article in Inside our WBAI here.
- Of note, Pennsylvania, where Segal McCambridge maintains a Philadelphia office, has also amended its Rules of Professional Conduct in a similar fashion. See PA ST RPC Rule 1.1, Comment 8.
- See American Bar Association Resolution, adopted August 6-7, 2012;see also, Debra Cassens Weiss, Lawyers Have Duty to Stay Current on Technology’s Risks and Benefits, New Model Ethics Comment Says, ABA Journal Law News (August 6, 2012).
- Ronald D. Rotunda, Applying the Revised ABA Model Rules in the Age of the Internet: The Problem of Metadata, Hofstra Law Review, Vol. 42:175, 176 (2013).
- See e.g. State v. Ratcliff, 849 N.W.2d 183 (N.D. 2014).
- See e.g. “The Use of Cloud Computing in the Practice of Law,” New Hampshire Bar Association, Ethics Committee Advisory Opinion #2012-13/4.
- See John Browning, Legal Ethics and Social Media: It’s Complicated, Dallas Bar Association (December 2013); see also, Judd Kessler, Are You in Compliance with ABA Rule 1.1? AbacusLaw (April 30, 2014).
- James Podgers, You Don’t Need Perfect Tech Knowhow for Ethics’ Sake—But a Reasonable Grasp Is Essential, ABA Journal – Annual Meeting (August 9, 2014).
- Darla Jackson, Can Lawyers Be Luddites? Adjusting to the Modification of the ABA Model Rules of Professional Conduct Regarding Technology, Oklahoma Bar Journal Vol. 84 (December 2013).
- See Rotunda, supra, note 3.
- Nelson, supra. note 8; see also, Andrew M. Vogel, Should California Lawyers Have a Duty of “Compu-tence”? Los Angeles County Bar Association – County Bar Update (October 2013) (discussing the ethical ramifications associated with making a single lawyer or staff member the sole point person for all things “technological”).
- See “The Use of Cloud Computing in the Practice of Law,” supra, note 5.
- See “State Bar of California Revises Proposed E-Discovery Ethics Opinion,” Gibbons E-Discovery Law Alert, (posted April 1, 2015).
- See The State Bar of California, Standing Committee on Professional Responsibility and Conduct, Formal Opinion Interim No. 11-0004.
- 849 N.W.2d at 193.
- See Podgers, supra, note 7.