[See Part 1 of this article here.]
As described in part 1 of this article, competence is the foundation of an attorney’s obligations to her client. Rule 1.1 of the American Bar Association’s Model Rules of Professional Conduct (MRPC) provides thus: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” What constitutes “competent representation” has evolved with advances in technology. MRPC Rule 1.1 comment 6 (2012 revision) notes that “[t]o 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.”
As with any area of the law, if an attorney does not have the requisite proficiency, she should seek the assistance of someone who is competent, refer the representation to another attorney, or decline the representation. Along these lines, attorneys should consider their proficiency with ESI in any facet of client representation and not blindly use technology with which they have no level of competence.
This article is the second part of a two-part series appearing in the Pretrial Practice and Discovery Subcommittee newsletter. Although it is geared toward litigators, it is also relevant to transactional and in-house attorneys who similarly deal with electronically stored information (ESI) in their practice.