Some lawyers are “early adopters” of new technology, incorporating the latest gadgets into every aspect of their practice. Other lawyers use their smartphones to support their practice but may rely on other staff to help guide them through the nuances of cloud computing or e-discovery. And still other lawyers prefer to practice in a totally analog environment, declaring they have no use for the advancements of technology in their representations of clients.

For those lawyers in that third category, avoiding technology can create significant risk.  Comment 8 to ABA Model Rule of Professional Conduct 1.1 provides: “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.” Many states have adopted or are considering equivalent language.

And the events of the last year have reinforced the relevance of technology to the practice of law. For many lawyers, working remotely during the pandemic tested their technological aptitude. Although technological advancements have been beneficial to the legal community as a whole, lawyers can face risks if they do not update their practices to stay informed about developments in technology. 

The Duty of Competence

Lawyers have a general duty of competence. Rule 1.1(a) of the Model Rules provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”  When adopted, this rule generally requires lawyers to exercise the care or skill commonly employed by other lawyers in similar matters.

To that end, the standard of care owed by lawyers to clients evolves over time. The law changes, technology changes, and what a lawyer is expected to know about those subjects changes. Thus, lawyers who do not undertake the effort to stay abreast of developments in the law do themselves a disservice. As noted above, maintaining competence in the law also involves maintaining competence in emerging technology.

Technology Continues to Evolve

Although lawyers are often at the forefront of many cutting-edge legal and commercial issues, it sometimes takes years for practitioners to catch up on technology advancements. This can create risks for lawyers, as reflected by Comment 8 to Model Rule 1.1.

Sometimes, in conjunction with the duty to supervise, it can be sufficient for a lawyer to work with others who are more competent in or knowledgeable about technological advances. It is routine for lawyers to rely on junior lawyers or even staff to review technological issues and advise the supervising lawyers on recommendations or developments. Nonetheless, the supervising lawyer may still face exposure if the lawyer’s team fails to meet expectations.

The risks of not being competent in evolving technology can be severe. A lawyer can risk harming a client’s interests by making an error in the representation or receiving sanctions for discovery misconduct. As one Delaware court observed, “[p]rofessed technological incompetence is not an excuse for discovery misconduct.” 

Other risks of technological incompetence include the risk of inadvertent disclosure of confidential or privileged information. This can range from simply sending an email to the wrong individual (thanks, perhaps, to an auto-complete feature when filling out email addresses in a lawyer’s email program) to including privileged documents within a large data production.  Courts reviewing claims of waiver arising out of such a disclosure will often consider what steps the lawyer took to prevent against disclosure in determining whether the lawyer’s conduct was excessively risky.

Further, the legal news is rife with stories about cloud computing, data breaches or hacking. Bars sometimes consider this an ethical issue, because lawyers have obligations to safeguard confidences and secrets, and sloppy cyber policies can expose clients’ secrets. Firms anticipating these issues may require their employees to use passwords on all their mobile devices, or develop other security protocols such as two-step verification or remote-erase options.

If a client sues a lawyer after a cyberbreach and the exposure of secrets, the lawyer would be well served to point to all the safeguards the lawyer had in place, showing the reasonableness of the lawyer’s conduct. However, an argument that the lawyer did not really understand the technology and thus did not appreciate or understand the risks is less likely to be successful.

ABA Formal Opinion 498

In March 2021, the ABA issued Formal Opinion 498, which serves as a reminder to lawyers regarding their ethical responsibility as they use technology to practice virtually. Opinion 498 addresses the ethical challenges of the so-called virtual practice, which has become more common in light of enhanced technology and increased need. The ABA Model Rules of Professional Conduct permit lawyers to practice virtually, but those lawyers must fully consider and comply with their applicable ethical responsibilities, including technological competence, diligence, communication, confidentiality, and supervision. 

Specifically, lawyers working remotely may need to pay special attention to their hardware and software systems, virtual meeting platforms, data exchange platforms, “smart” speakers or other technology that may be listening to every word, and their own duty to supervise others. All of these topics may require consideration to ensure that lawyers are meeting their duty of competence and of maintaining client confidences. 

Benefits of Technological Competence

There are certainly benefits to maintaining technological competence. Among other things, lawyers who educate themselves on routine technological advancements may be better able to market their practices to potential clients or to ensure compliance with client security guidelines. Digital technology can also enhance work product or presentations. But most importantly, maintaining a reasonable degree of technological competence can help ensure that lawyers are meeting their ethical obligations to clients.