Is your lawyer tech competent?

Increasingly, it is becoming professionally necessary for lawyers to demonstrate competence in the use of technology.

At least in the United States, it has become a requirement that lawyers understand “the benefits and risks associated with relevant technology.”

Rule 1.1 of the ABA Model Rules of Professional Conduct (titled “Competence”) states that a “lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

The equivalent of the Northern Territory Professional Conduct Rules, Conduct Rule 1.1, provides something similar –  a “practitioner must act honestly, fairly, and with competence and  diligence in the service of a client, and should accept instructions, and a retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work  required with reasonable promptness.”

The ABA comments to Model Rules, under the heading “maintaining competence”, explain that 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.”

This has led the New York Law Journal to recently comment that the “standards for professional competency requiring attorneys to comprehend technology are rapidly rising … attorneys will be bound professionally to understand technology as it intersects with their ethical obligations when handling e-discovery….a lawyer’s duty to understand technology is no longer optional. The amendments … make it clear that a professional standard of technological competence is synonymous with legal ethics and that an attorney must be conversant about issues such as information technology, data retention and preservation, data processing, searching and production, review technology software, privacy (in the United States and abroad) and privilege.

The NY Law Journal goes on to say it “should be apparent that a large percentage of litigation today will include some aspect of electronically stored information (ESI). Lacking technical knowledge, or the inability to employ others who possess it, is no longer an excuse for discovery lapses.”

Some of the know how that is expected includes:

  • using e-discovery software to examine hard drives.
  • understanding how to manage information in the hands of third parties (when tasks are outsourced) to protect the confidentiality and inadvertent (or unauthorised) disclosure of a client’s information.