The Lawyer’s Duty of Technology Competence

Episode Notes

Transcript

Digital Edge: ABA TECHSHOW 2016: The Lawyer’s Duty of Technology Competence – 3/16/2016

Advertiser: Welcome to The Digital Edge with Sharon Nelson and Jim Calloway. Your hosts, both legal technologists, authors and lecturers, invite industry professionals to discuss a new topic related to lawyers and technology. You’re listening to Legal Talk Network.

Jim Calloway: Welcome to the 98th edition of the Digital Edge, lawyers and technology. We’re glad to have you with us. I’m Jim Calloway, director of the Oklahoma Bar Association’s Management Assistance Program. My co host, Sharon Nelson, president of Sensei Enterprises, is unable to be with us today. Our topic today is going to be the emerging duty of technology competence for lawyers. But before we get started, we’d like to thank our sponsors. CloudMask offers cost-effective and efficient data encryption for law firms, whether large or small, in Google Apps, Office 365 and other Cloud solutions. Sign up now for your 60 day free account at CloudMask.com. We also thank Serve-Now, a nationwide network of trusted, prescreened process servers. Work with the most professional process servers who have experience with high volume serves, embrace technology, and understand the litigation process. Visit ServeNow.com to learn more. We also want to thank our sponsor, Scorpion, who delivers award winning law firm web design and online marketing programs to get you more cases. Scorpion helps thousands of law firms just like yours attract new cases and grow their practice. I am happy to welcome as our guest today, Bob Ambrogi. Bob is a well known legal technology writer, blogger, and podcaster – in fact he has several podcasts with the Legal Talk Network which we’ll talk about in a minute. But Bob, why don’t you finish introducing yourself before I fall apart giving you all the accolades that I know you deserve.

Bob Ambrogi: Jim, thanks for having me on the show and I think you about covered it. Yeah, I write a blog called LawSites where I cover technology and the web and I do the Lawyer 2 Lawyer podcast on the Legal Talk Network. We just launched a new podcast with Monica Bay – well, it’s sort of a revival of an old podcast that was sitting dormant for a couple of years. But it’s called Law Technology Now in which Monica and I are going to be interviewing some of the most interesting people in the legal technology field and that just launched on the Legal Talk Network, so look for us there.

Jim Calloway: Well great, that’s good news. In case you here any ambient noise in the background, we’re broadcasting live from the ABA Midyear Meeting in sunny San Diego, California. We’re having attendees walk by us as we do our podcast and it’s a great venue. So let’s get started in talking about this so-called duty of technology competence. Bob, why don’t you start off by explaining to our listeners what is this duty of technology competence.

Bob Ambrogi: Well what we’re talking about traces it back to probably 2009 when the American Bar Association convened something called the Commission on Ethics 20/20 which was appointed to really take an in depth look at how advances in technology affected the ABA model rules of professional conduct. Changes in the way lawyers practice and how technology affected practice mandated any need for changes. As I’m sure listeners know, the 20/20 Commission made any number of recommendations. But the one we’re most talking about here really was a recommendation to modify rule 1.1, the model rule on competence. And the ABA House of Delegates adopted that in August 2012. It seems like just yesterday to me. The competence rule itself basically just says that a lawyer has a duty to provide competent representation to a client and that competent representation requires the legal knowledge skill thoroughness and preparation reasonably necessary for the representation. The change amended comment 8 to the model rule, and it basically just stuck in one phrase. So now the comment based on this change says 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.” So that last little phrase, including the benefits and risks associated with relevant technology was what was new out of that report.

Jim Calloway: There’s two ways to look at this. You could say that the states that adopted this new change are implementing some new regulatory burden on lawyers, or you could just say that we’re recognizing the realities of what it’s like to practice law in today’s environment. Do you have any comment or reaction on that?

Bob Ambrogi: It’s funny because the 20/20 Commission itself said that this is not a new duty, that lawyers have always had a duty to be competent in the tools and the technologies they use both as they relate to their own law practice and as they affect their clients. And so you can make the argument that there’s nothing new here. I don’t see it that way. To me, I really saw it at the time, 2012, as a real change only because for the first time we have it in writing; it’s sort of official and lawyers have to do it. Jim, as you and I well know – and Sharon would agree if she were here – that there are a lot of lawyers who are a long way from having that competence.

Jim Calloway: I would agree with that. I just left the law practice division meeting where some of our most technologically lawyers were in attendance-

Bob Ambrogi: And where carbon paper came up.

Jim Calloway: Where carbon paper came up during the meeting, that’s correct. But I do think that a lot of lawyers have lagged behind on technology and partly it’s because they are often so busy. But I think there’s something about the people that became lawyers, they didn’t become engineers perhaps for a reason. But certainly technology is changing and this is a model rule that only goes into effect when the states actually adopt their binding version of the rule. Do you know how many states have adopted this new change at this point?

Bob Ambrogi: It’s funny you should ask, I have been trying to track it. On my blog I’ve had a post I’ve been updating on a regular basis. I’m up to 20 right now. According to my count, there have been 20 states that have officially adopted it. And that number’s a little loose because for example, I include he state of New York which the model rule is sort of an advisory thing there, but we’re basically saying 20. I know there are other states considering it where it’s been discussed and recommendations have been made. So I suspect that pretty soon we’re going to see a number of other states and I wouldn’t be surprised eventually if they all do. I should also add to that, some of the states that haven’t adopted this change in the model rule have in ethics opinions recognized the fact that lawyers have a duty to be competent in technology.

Jim Calloway: Well, if you want to keep track of the states as they continue to adopt this rule or consider this rule, I would recommend Bob’s blog, Lawsites.com. And every time there’s a new state that adopts it, I see Bob increase the total there. Now let’s pause for a commercial break and we’ll be right back.

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Jim Calloway: Welcome back to the Digital Edge on the Legal Talk Network. Today our subject is the emerging duty of technology competence, and our guest is Bob Ambrogi who is a long time blogger and legal technologist – journalist, I would say – on all these topics. You said you didn’t think we were really giving something new to lawyers. Can you expand a little bit? You said lawyers always had this duty, I’m not sure the legal profession would agree with you about that.

Bob Ambrogi: No, and what I said was I’m not sure I agree with that. I understand why the 20/20 Commission said that but I think lawyers certainly themselves did not understand that. To me, one of the most telling signs of what this might mean was a California ethics opinion that came down this year dealing particularly with ediscovery. But it was probably the most explicit opinion that I’ve seen so far that simply talked about the implications of this duty of technology competence for a particular area of law. And basically what the California opinion said is that if you are a lawyer who does litigation of any kind – whether it’s the small, tiny family case or whatever, if you’re going into court and representing clients in course – that you need to be competent in ediscovery technology. To me, that’s surprising because I think a lot of lawyers think of ediscovery as a sort of esoteric field for specialists. But this opinion is saying as one example of this application of the duty of technology competence, you need to be able to do that yourself. To me, that’s a pretty far reaching example of just what this duty can become to me.

Jim Calloway: I think that’s one reason that the rule talks about relevant technology. If you’re doing a case in litigation where it’s a DUI defense, there may be no electronic discovery associated with it. I had a lawyer who was arguing against this rule who said, “So you’re telling me I have to learn about Twitter and I don’t ever want to learn about Twitter.” My response to him was unless you have a client who has a Twitter problem, you probably won’t have to learn about Twitter. Wouldn’t you agree with that?

Bob Ambrogi: Yeah, right, it’s relevant technology. You need to know what you don’t know. So not only is it within context but you don’t have to have the knowledge yourself. It’s not that every lawyer suddenly has to go out and become a computer programmer or an expert in social media or anything else. It’s that you need to have enough awareness about what the issues are that you know when you’re in over your head and you know when you need to get help. Several of the ethics opinions have talked about the idea that it’s ok to go out and get outside help when you don’t have the competence yourself. So that’s the other aspect of it.

Jim Calloway: One thing I liked about the California ethics opinion is they actually had a little scenario that explained how a lawyer could get into trouble in an innocent way. Are you familiar with – there was a Texas opinion about encryption that gave some examples about when a lawyer should consider encrypting communications – are you familiar with it?

Bob Ambrogi: I had heard of it, you’re going to have to refresh my recollection on that one.

Jim Calloway: They just talked about the duty to encrypt would be more evident when, for example, a client shared an email address with somebody else or when you had some belief that they were opening it up in an insecure environment. I think encryption is another one of those relevant technologies we’re going to have to take a look at as we see more and more identity theft. For example, I just had a Bar association that will go nameless send me a W9 and said please fill this out with your social security number and electronically sign it and email it back to us. And I had to tell them that my duty of competence to myself involves that I’m not going to send my social security number and my address and my full name by unencrypted email.

Bob Ambrogi: Right. As you well know, I write endlessly a number of times that lawyers have to get up to speed on encryption and be using encryption more and be thinking about it. And it’s easy to use these days so there’s really no excuse not to be doing it.

Jim Calloway: Well, lawyers of course appreciate the ethics opinions, but most of those are nonbinding and advisory in nature. Are there any cases that have offered guidance on this particular duty that you’re aware of?

Bob Ambrogi: I have not seen any cases and you may correct me if I’m wrong, that it’s explicitly talk about this rule 1.1 comment. However, again, there are any number of court cases that do recognize that lawyers have a duty to be competent in the technologies that they’re using. And actually, ediscovery again is another area where you’ve seen a fair number of cases that have come up where lawyers have gotten in trouble in ediscovery context for not knowing what they’re doing, not knowing how to collect data or not knowing how to preserve data or not knowing how to search data. And there have been cases where that gets the client in trouble or gets the lawyer in trouble with sanctions. Again, you need to know what you don’t know. One of the interesting things about the California ethics opinions is a very detailed discussion of the scenario that they make very clear that again, it’s okay if you bring in others. And others can even be an associate in your own firm. If an associate in your firm has got this stuff, that’s fine. Or if you need to associate with another lawyer from an outside firm, maybe you need to do that; or if it’s a paid consultant from outside, that’s okay. You can effectively contract out your competence. The building is collapsing around us here. Is this a California earthquake? So you can effectively contract out your competence. But one thing you cannot do if you do that is contract out your supervision of the case. If you’re the lead attorney on the case, your obligation to supervise that case doesn’t go away even if you bring in other contracts and all of that. So that’s a really important point to remember.

Jim Calloway: I really believe that’s one of the most important observations on this topic to understand what you don’t know and that’s not much different from what lawyers have done in the past; knowing when to spot issues rather than always having the answer to the issue in their pocket. You mentioned about a lawyer contracting out tech competence and it could be an associate in the firm or an outside contractor. That brings up another one of these ethical duties, of course, that we have to pay attention to who we contract out things with, who we employ and whatever. Any thoughts about how a lawyer who’s not prepared to do that can make determination on when they need to contract and who? Do they always need to hire an associate?

Bob Ambrogi: They don’t always need to hire an associate. They could associate with a lawyer at another firm. They could bring in an outside vendor or tech consultant or ediscovery consultant or whatever the particular matter is like social media consultant. I do want to empathize that the ethics opinions say that the lawyer needs to make the assessment up front as to whether he or she – even today they don’t even have the specific technology competence, but they have to have the ability to maintain and control the case. If they’re going to be getting in over their heads even by bringing in outside vendors or whatever, then they need to turn down that representation or pass it off to somebody else. And that duty to supervise, the California ethics opinion is one of the ones that is most explicit about this, but to read a quote from that decision, they say that the attorney who is the principle lawyer on the case must maintain overall responsibility for the work of the expert he or she chooses, even if that expert is the client or someone employed by the client. That was an interesting point that the opinion made. If your client has the expertise, maybe you’re representing a tech company or something, that’s okay. As long as it’s there somewhere. But they go on to say that the attorney must remain regularly engaged in the expert’s work and educate everyone in the case involved about the legal issues in the case, the factual matters impacting the case, witnesses, evidentiary issues, all of that stuff the lawyer has to stay on top of that. In other words, the lawyer has to do what the lawyer’s supposed to do in a case.

Jim Calloway: I read an interesting blogpost recently from a lawyer who said that as a young associate, he became the ediscovery expert in the firm after hearing a partner scream that he just lost a document and running in there and hitting CTRL + Z a couple of times to recover from the document. And the partner was so impressed he put him in charge of ediscovery.

Bob Ambrogi: That’s a scary thought.

Jim Calloway: That is a scary thought! Any more thoughts on the teachings from that California opinion because I like you thought that was an opinion that really had implications beyond the specifics of ediscovery but more into our general topic today.

Bob Ambrogi: The other point I took away from that that was really critical was the ethics panels emphasis on the lawyer’s duty to maintain confidentiality. So again, the lead attorney in the case, part of being ethical here means maintaining the confidentiality of the client’s competences. And so again, even if you were contracting out part of this or turning over part of the responsibility to someone else, that does not free you of your duty to maintain all of your competences. Just to read a quote from the opinion, it says the attorney has a duty to assert  the attorney-client privilege to protect confidential communications between the attorney and the client. In civil discovery, the attorney-client privilege will protect confidential communications between the attorney and client in cases of inadvertent disclosure, only if the attorney and the client act reasonably to protect the privilege. A lack of reasonable care to protect against disclosing privilege of protected information when producing electronically stored information can be deemed a waiver of the attorney-client privilege. So it’s a lack of reasonable care in electronic discovery context is the standard they apply there. So we’re trying to figure out the contours of this. We’ve got this idea that lawyers have this duty of technology competence that we’ve got very little guidance yet as to exactly what that means. But I think a lot of things that you and I have talked about in the past, Jim, a lot of it comes down to common sense. So much of being an ethical lawyer is having common sense about what you should be doing yourself and what you’re not able to be doing and knowing when to draw that line.

Jim Calloway: I completely agree and I think sometimes we focus a little bit too much on the word risk and forget the word benefits. As you and I know, we work in a much different way than we did a couple of years ago or five years ago or ten years ago as we take advantage of technology advances. And I think some of those can really be a great benefit to your client as well. Right now I’m talking to the solo and small firm lawyers about the need to automate their document process and document assembly, because I think that’s a big topic. Any other potential things moving away for the duty to your view as a commentator on the legal technology scene? Any other big advances you see on the horizon that are going to impact our profession?

Bob Ambrogi: I don’t know. I’m interested in a lot of things going on from a technology point of view. The application of advanced analytics to any number of areas of legal research and legal knowledge development are interesting. The whole Lex Machina acquisition by Lexisnexis, a lot of people have heard about that by now. I think that’s a signal of what we’re likely to see. I keep coming back to a lot of the more practical stuff, though. This is probably something you and I have talked about before – I’m sure we’ve talked about it before – but I think the continuing rise over the last couple of years of law practice management technology and the continuing recognition by lawyers of the importance of having a law practice management platform of some kind in their practices. We can’t call that cutting edge technology or the next new thing, it’s here already. But again, it goes hand in hand with this duty of technology competence. It goes hand in hand in understanding how to use technology to be both a better lawyer and a better lawyer for your clients and keep you better on top of the cases and the matters and the dates and the calendars. All of that stuff you need to be on top of. I’ve actually written about some of the top trends over the last couple of years and I keep thinking practice management’s going to fall off there, but I keep keeping that one on there. Maybe it’s old school.

Jim Calloway: I would completely agree with that. As you know I work for a state Bar association that is a unified Bar and also a regulatory and disciplinary. And I don’t directly do that work but I sometimes talk to lawyers who are concerned about the disciplinary process or are sometimes involved in it. One of the things I see is that many times lawyers had a good explanation as to things but they didn’t document their files well enough. Yes, the client agreed, but they don’t have in the file the moment the client agreed, the conversation that happened, was it email, was it whatever. Maybe it was an important decision they needed something from the client affirmatively that’s in the file. And to me that’s one of the great things practice management software can do is help you quickly document every time you’re touching the client. Well, we’re getting close to the end of this. I appreciate all of these thoughts. I think a lot of lawyers are overly concerned with this but I will say that I had a lawyer say he didn’t know how to use technology that came into my office. He said he just couldn’t get it and I called him on it. I said I know what you do, you’re a medical malpractice lawyer. You learn surgical procedures and drug interactions and all of these complicated things and you’re saying you can’t learn the technology that many people with high school educations now use in offices today. His response was, “I guess you’re right, it’s probably that I really don’t want to.” So hopefully, this will direct lawyers to want to.

Bob Ambrogi: Yeah, I think that’s the real key here. This is going to get lawyers off their butts a little bit. They all have the capability to do it if they want to do it, it just takes some work and some effort.

Jim Calloway: Bob Ambrogi, thanks for being our guest today.

Bob Ambrogi: Thank you very much Jim for having me. And Sharon, I wish you were here also.

Jim Calloway: That does it for this edition of The Digital Edge, lawyers and technology; and remember, you can subscribe to all the editions of this podcast at LegalTalkNetwork.com, or on iTunes. And if you enjoyed our podcast, please rate us on iTunes. Thanks for joining us today. You’re going to have to wait until next month to hear Sharon say, “Happy trails, cowboy.”

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