Are You A Lawyer In Seattle? You Need To Read This!
Lawyers in Washington Have a Duty to Be Technologically Competent
Lawyers in Washington today not only have a duty to be competent in the law and its practice but also in technology, a requirement under Washington’s ethics rules. The ethics rules do not ask lawyers to become experts in technology, but for lawyers to acknowledge that the convenience technology offers comes with risks. The ethics rules require lawyers become familiar with those risks and take reasonable measures to guard against them.
2012 ABA Amendment to the Model Rules
In 2012, the American Bar Association (ABA) formally approved a comment to Model Rule 1.1 of the Model Rules of Professional Conduct in regards to technology. Model Rule 1.1 was modified to add that a lawyer’s duty of competence requires keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”.
This Model Rule amendment reflected the growing importance of technology in the delivery of legal and law-related services. The technology rule’s wording is broad for a reason – technology is constantly changing. A competent lawyer’s skill set needs to evolve with technology and the relevant tech skills needed could be very different for lawyers in a decade.
However, the Model Rules are not hard and fast. They act as a guide to states in formulating their own rules of professional conduct, with each state being free to adopt, ignore, or modify the Model Rules. In order for technology competence to be a duty, states must first adopt it.
Washington is one of the 28 states that have formally adopted the revised comment to Rule 1.1. It was approved on June 2, 2016, and went into effect September 1, 2016.
What is technological competence?
The concept of technological competence means that lawyers are expected to have a basic understanding of the technologies they use and be familiar with technologies that may affect their practice. This includes the risks associated with those technologies and adopting the available means to mitigate those risks. Pleading ignorance to new technologies or their risks is no excuse. Lawyers need to be aware of the benefits and risks of emerging technologies related to legal services and how it can impact the security of information in their possession.
The duty of technological competence can be far broader than just protecting client information and cybersecurity. The main areas of technological competence include:
- Data Security: Lawyers are obligated to take reasonable measures in safeguarding the integrity and security of their electronic files. Only authorized users should have access to electronic files, which should be secure from outside intrusion.
Reasonable measures to protect against inadvertent or unauthorized breaches of client information include assessing the sensitivity of the information and the likelihood of disclosure if additional safeguards aren’t taken. The cost and difficulty of implementing the safeguards should also be taken into account. The greater the sensitivity of the information, the less risk an attorney should take with technology.
Reasonable precautions can include firewalls, encryption, antivirus and strong password practices, but state ethics committees avoid specific recommendations as technology evolves so rapidly. They consider it the duty of the attorney to determine what kind of security measures need to be taken.
- Electronic Discovery: This can include the preservation, review, and production of electronic information for use in litigation.
While not every litigated case involves e-discovery, almost every litigation matter potentially does. Competent handling of e-discovery has many dimensions, so at the beginning of every case, a lawyer should assess what electronic discovery issues might arise during litigation. If the attorney lacks those skills or resources, they should either try to acquire sufficient knowledge on the subject or seek someone with the necessary expertise.
Consulting with an expert will not even fully get you off the hook as it is the attorney’s duty to supervise the work of anyone assisting them. Unsupervised reliance on a consultant does not meet the duty of competence.
- Law Practice Management Technology: This involves the technology lawyers use to run their practices such as electronic calendaring and docketing as well as communicating with clients and third parties. It also includes electronic research and software applications.
Misuse or overreliance on these technologies can lead to pretty disastrous consequences. Electronic calendaring and docketing applications, in particular, can be a huge boon to law firms; they can cut down on human error and free up paralegals’ time. However, missing filing deadlines due to an error or because the user didn’t fully understand the software are not considered excusable. Before relying completely on docketing and calendaring software, ensure you fully grasp how it works.
This area also includes competence in cloud-based technologies and storage as many applications automatically store information in the cloud. The use of cloud computing and storage is permitted in Washington. Washington recommends conducting a due diligence investigation of any potential cloud provider and reviewing the cloud providers’ security procedures periodically.
- Other Areas: Familiarity with technology used to present information in the courtroom as well as technology used by clients in the cases you defend can also fall under the duty of technological competence.
Law, more than other industries, can lag behind technologically. With Washington adopting the ABA’s technological Model Rule revision, pleading ignorance to new technologies and the risks they pose is not an option.
Lawyers need not become masters in technology. Yet, they do have a duty to familiarize themselves with it and take reasonable security measures. If you feel your law firm is struggling with implementing secure data practices, CyberStreams can help. We have years of experience helping law firms like yours.