January 01, 2014

The Duty of Competence in the 21st Century

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

A conversation by legal ethics experts during an ABA program highlighted technology changes the legal profession has seen in the past 15 years, how those changes affect lawyers’ ethical duties, and how competence can be fulfilled in the digital age.

The changes have been so dramatic that in 2009, the ABA created the Commission on Ethics 20/20 to study the rules and policies surrounding lawyer conduct concerning the advances in technology and globalization.

Andrew Perlman, director of the Institute on Law Practice Technology and Innovation, gave an overview of the commission’s findings and said the amendment to Model Rule 1.1 (Competence) in the Model Rules of Professional Conduct has made lawyers around the country “pay attention.”

“When the commission was thinking about the ways in which technology has changed the profession, one surprising feature of the model rules that we came upon was that the word technology appeared nowhere,” Perlman said. “And we thought it was important that there should be some reference of the role technology is playing in the delivery of legal services.”

The result was the commission added a line to Comment 6 of Model Rule 1.1: “… including the benefits and risks associated with relevant technology.”

Perlman said the new line “emphasizes that in the course of a lawyer’s career, it’s not enough to just keep abreast of changes in the law, but when you keep abreast of changes in its practice, that necessarily includes keeping up to date on the benefits and risks associated with relevant technology.”

The prevailing issue on lawyers’ minds is the ethical duty involved in protecting information stored on smartphones, electronic devices, or the cloud. Since the adoption of Ethics 20/20 in 2012, more guidance is available to assist lawyers, Perlman added.

He said Model Rule 1.6 (Duty of Confidentiality) clarifies that “lawyers should take reasonable precautions to protect client confidences from inadvertent or unauthorized access or disclosure.” Some considerations include the sensitivity of the information and cost of additional safeguards.

“Nobody is expecting lawyers to have the security that you’d find at the Pentagon, but if the costs are relatively small and they would provide a lot of extra protection, then that is something that would be considered reasonable and important,” Perlman said.

He said developing a “strong” password of at least 12 characters with a mix of numbers, letters and special characters is a helpful precaution, as is encryption, which scrambles data and makes it unreadable in the event your mobile device is lost or stolen.

One big threat to the security of data is the loss of the device. Although strong passwords and encryption are essential, the owner or a network administrator should have a way to remotely wipe the device, so data can be deleted before a stranger views it. There are apps and software available to perform this function.

The conversation spanned to cloud computing, which most ethics opinions support, but lawyers still must take “reasonable precautions” to protect information.

“You should be aware of where the information is being stored and who owns it,” Perlman said. “How sensitive is the information? There is an interesting ethics opinion out of Massachusetts that says that if it is particularly sensitive information, you need to get your client’s consent before you use a cloud computing provider. It’s the only ethics opinion I know of that has reached that conclusion.”

An ethics opinion out of New Hampshire lists 10 factors to consider before using cloud computing. The list includes questions about a provider’s security measures and disaster recovery plan.

 

The program “Am I Competent? The Ethical Use of Evolving Technologies” was sponsored by the ABA Center for Professional Responsibility and Center for Professional Development. Article adapted from an article in the December 2013 Your ABA, © 2013 American Bar Association