Last year, the ABA adopted an amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” See ABA, Commission on Ethics 20/20 Resolution 105A (August 2012). This was the first effort by the ABA to address in the Model Rules the importance of technological competence in providing legal services.
Andrew Perlman, a law professor at Suffolk University Law School and a member of the new ABA Commission on the Future of Legal Services, has written a brief piece in the ABA’s Professional Lawyer in which he summarizes the skills and knowledge that modern lawyers need to remain competent in the digital age. In his article, entitled The Twenty-First Century Lawyer’s Evolving Ethical Duty of Competence, The Professional Lawyer, Vol. 22, No. 4 (2014), Prof. Perlman discusses the following five essential technological competencies.
Lawyers must understand the risks to confidentiality associated with storing information in the cloud and with using the internet for communication. Among other things, lawyers should know the benefits of using strong passwords; they should understand and consider using encryption; they should understand and consider using multi-factor authentication; they should know how to avoid phishing and other Internet scams; and, they should understand the nature of information stored in file metadata.
Lawyers must understand the that they need to investigate and preserve electronically stored information (ESI) for purposes of discovery. They should understand that ESI includes not only email communication, electronic document files and data, but also information posted by parties on social media sites like Facebook, LinkedIn and others. Finally, lawyers should educate themselves sufficiently to know what they don’t know so that they can engage assistance in such areas from ESI professionals.
3. Internet Fact Investigations
Lawyers must understand that using traditional means to investigate and discover information relating to their matters is no longer sufficient. Now, lawyers should investigate jurors, opponents, and clients through using Google and other search engines, and through searching popular social media sites. What lawyers don’t know about what’s on the Internet can hurt their clients and help their opponents. Of course, lawyers need to be mindful about their ethical obligations in this regard, including the obligation to avoid spoliation of evidence, and to avoid communicating with represented persons.
4. Internet Marketing
Lawyers must understand the disciplinary rules governing firm websites, the use of social media, posting on blogs, and more sophisticated marketing techniques such as key-word advertising, pay-per-lead and pay-per-click advertising. They also need to appreciate the risk of engaging in the unauthorized practice of law through using Internet advertising, and the risk of inadvertently forming a lawyer-client relationship.
5. Leveraging Technology
Lawyers must leverage “New Law,” that is, “technology and other innovations that facilitate the delivery of legal services in entirely new ways.” For example, lawyers should understand automated document assembly, legal analytics, virtual legal services, and cloud-based law practice management using services such as Clio and Rocket Matter.
Prof. Perlman concludes with this cogent thought:
The seemingly minor change to a Comment to Rule 1.1 captures an important shift in thinking about competent twenty-first century lawyering. Technology is playing an ever more important role, and lawyers who fail to keep abreast of new developments face a heightened risk of discipline or malpractice as well as formidable new challenges in an increasingly crowded and competitive legal marketplace.