Competence: Acquire it or Hire it!
Lawyer competence, spelled out in the ethics rules in ABA Model Rule 1.1 as “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” and in the civil context as a standard when evaluating legal malpractice of “ordinary” skill and capacity, or that of the average qualified practitioner, or that which is “normally” exercised by lawyers in similar circumstances. Restatement (Third) of the Law Governing Lawyers §52 (2000). Language linking the competence standard to expertise in technology was addressed in the context of technological advances when the ABA amended the comments to two of the Model Rules following the Ethics 20/20 Commission’s final reports.
This language can be found in the Comments to two of the ABA Model Rules, Rule 1.1 Competence and Rule 1.6 Confidentiality.
Paragraph  of the Comment states:
 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, (emphasis added) engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
Paragraph  of the Comment states:
 Competent Representation can also be provided through the association of a lawyer of established competence in the filed in question
Paragraph  of the Comment to Rule 1.6 states:
Acting Competently to Preserve Confidentiality
 Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the epresentation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules
A number of states have adopted these changes. A chart prepared by the ABA Center for Professional Responsibility’s Policy Implementation Committee showing the status of the Ethics 20/20 amendments state by state is located here:
In the technological realm, competence is seen as having a basic understanding of the implications that new and emerging technologies can have for a lawyer’s day to day practice.
In November of 2013 the ABA/BNA Lawyers’ Manual on Professional Conduct ran a story that asked if the use of electronic research, both legal research and general was becoming an element of basic competence. (See, Avoiding Malpractice, 29 Law. Man. Prof. Conduct 758 (2013). The consensus was that ability to use this type of research will soon be an essential aspect of the ethical standard for competent lawyering.
Recent state and local bar ethics opinions on the subject of cloud computing illustrate how lawyers should approach competence and confidentiality issues. (See, New York City Bar Report Offers Guidance on Ethical Risks of ‘Leaping Into the Cloud, 29 Law. Man. Prof. Conduct 815 (2013). The decision of whether to use cloud computing is made by lawyers and law firms based on the specifics of their practice. But in order to follow the mandates of Rules 1.1 and 1.6 when using cloud computing or other new technologies, lawyers need to have a basic understanding of how cloud computing works and the attendant risks and benefits it presents in order to be able to demonstrate that the decision to use it was made after consideration of relevant circumstances, such as the sensitivity of the information stored and the safeguards in place to protect that information. New York State Ethics 842 (2010) set a reasonable care standard that explained the steps that a lawyer should take to understand the storage provider’s security obligations towards the files. It also offered guidelines for evaluating the service agreement with the storage provider:
…We conclude that a lawyer may use an online “cloud” computer data backup system to store client files provided that the lawyer takes reasonable care to ensure that the system is secure and that client confidentiality will be maintained. “Reasonable care” to protect a client’s confidential information against unauthorized disclosure may include consideration of the following steps:
(1) Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;
(2) Investigating the online data storage provider's security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances;
(3) Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored; and/or
(4) Investigating the storage provider’s ability to purge and wipe any copies of the data, and to move the data to a different host, if the lawyer becomes dissatisfied with the storage provider or for other reasons changes storage providers.
Now California Proposed Opinion NO. 11-0004 (2014) puts forward one more technical competence that lawyers must either acquire or hire. E- Discovery is a means to cull through a large volume of electronic documents to find those relevant to the matter. This California opinion is proposed, and comments are being sought, but if finalized it would help to set a standard of competence that would require a lawyer to be familiar with the technical aspects of E discovery before he agrees to use it. That seems to be one more step towards finding some abilities an essential aspect of competent lawyering. The opinion also states that to the extent that a lawyer is not familiar with technical issues as they relate to e-discovery, he should consult with someone who is.
The proposed opinion states:
…If it is likely that e-discovery will be sought, the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide the client with competent representation. If an attorney lacks such skills and/or resources, the attorney must take steps to acquire sufficient learning and skill, or associate or consult with someone with appropriate expertise to assist. Rule 3-110(C). Taken together generally, and under current technological standards, attorneys handling e-discovery should have the requisite level of familiarity and skill to, among other things, be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:
- initially assess e-discovery needs and issues, if any;
- implement appropriate ESI preservation procedures, including the obligation to advise a client of the legal requirement to take actions to preserve evidence, like electronic information, potentially relevant to the issues raised in the litigation;
- analyze and understand a client’s ESI systems and storage;
- identify custodians of relevant ESI;
- perform appropriate searches;
- collect responsive ESI in a manner that preserves the integrity of that ESI;
- advise the client as to available options for collection and preservation of ESI;
- engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan; and
- produce responsive ESI in a recognized and appropriate manner.
Experts at a recent panel on risk management suggested that E-Discovery is likely to be one of the next big sources of lawyer liability. (See, Experts Explore What Lawyers Need to Know For Use of ‘Predictive Coding' in E Discovery, 28 Law. Man. Prof. Conduct 518 (2012).
E-Discovery is used in cases with more than 100,000 documents. Predictive coding is the process used to identify relevant documents from the voluminous database. It employs algorithms to rank documents according to potential relevance. Where new hires at a law firm were once assigned to the discovery process, this type of document sorting requires experts, specialists and supervisory level lawyers to engage in the negotiations and frequent re-testing of the terms and algorithms.
In keeping with the basic ethical requirement of competence, keep current with developments in the technology that you use to facilitate your practice so that you understand how they may affect your ethical obligations to your clients, and develop a basic understanding of the “benefits and risks associated with these technologies. If you don’t have such an understanding, consult with someone who does.