Legal Competency: Let’s Get Technical

The first substantive rule in the ABA Model Rules of Professional Conduct addresses competence, and the rules as a whole place considerable weight on competency. Knowledge and understanding of what this rule means (and a desire to succeed as a lawyer) are required to practice law successfully. But technology has created a paradigm shift in what competence means under the rules.

Examples, such as those discussed below, “show how technology can tempt us to procrastinate and be careless,” says Jeanne Huey, chair of the Website and Written Content Subcommittee of the ABA Litigation Section’s Ethics and Professionalism Committee. “This is a real risk for young lawyers who may be under the false impression that it is ‘not their job’ to know about the inner workings of all the technology in their practice—because it is.”

Technology Makes Everything Easier—Including Mistakes

Rule 1.1 Competence states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Lawyers strive to acquire “the legal knowledge, skill, thoroughness and preparation” necessary to pass the bar and begin representing clients. The definition of “legal knowledge [and] skill” now includes skills and knowledge related to familiarity with, and proficiency in, technology such as e-filing, emails, and electronically stored information (ESI).

A steady stream of court rulings has held attorneys accountable for knowledge (or lack thereof) of e-filing systems, spam filters, and unintended disclosures of materials containing attorney-client communications. Here are three cautionary tales.

Burning the Midnight Oil May Burn You

At midnight on April 22, 2019, South Bank of Southern Utah had to electronically file its complaint objecting to the discharge of a customer’s debts under the Bankruptcy Code. The bank’s attorney, Steven Call, signed into the Electronic Case Files (ECF) system at 11:40 p.m. to file the bank’s complaint. At this point in time, Call’s “legal knowledge” as to discharge under 11 U.S.C. §§ 701 et seq. had little, if any, relevance; instead, Call’s legal knowledge had to include a proficiency in filing under the ECF system. Due to his unfamiliarity with the system, Call did not file the complaint until 12:16 a.m. on April 23, merely minutes after the midnight deadline and 36 minutes after Call first signed into the ECF.

To avoid dismissal, the bank argued that it should be entitled to additional time because the ECF system is “complicated” and delayed Call. After an evidentiary hearing, the bankruptcy court in State Bank of Southern Utah v. Beal, 19-2043 (Utah Bnkr.) rejected the arguments, finding that “the system was working properly, the complaint was untimely, and Call himself caused the delays.” Consequently, the bankruptcy court dismissed the complaint.

Appealing to the district court, the bank felt assured that a failure in technical proficiency should not be an impediment to justice to its legitimate claim. The district court disagreed and affirmed the bankruptcy court.

In its opinion, the Tenth Circuit Court of Appeals (21-4124) disposed of the bank’s arguments “with little discussion.” The Tenth Circuit found no error in the district court’s finding that “Call’s problems with the filing of the complaint were caused by his errors rather than by any defects in the court’s ECF system.”

Call’s hours digesting the evidence, researching the Bankruptcy Code, and drafting the complaint were all for naught. The evidentiary hearing disclosed that Call had a login and password for the ECF system, so he must have possessed rudimentary knowledge of the system. Unfortunately, he did not have sufficient “competency” to timely file the complaint on behalf of the bank, resulting in the loss of a legitimate claim by the bank and exposing Call to malpractice and ethics complaints.

Attorneys often rely upon support staff for e-filings and fail to become proficient or maintain proficiency on the ECF system. If faced with a “midnight” deadline, a young attorney should first be trained and experience filing before the “eleventh hour.” Even then, the young attorney should leave more than adequate time for filing. Rule 1.1 requires it.

Rummage Through the Junk Pile

Kevin Rollins brought a personal injury suit against his employer, Home Depot USA, Inc., in the US District Court for the Western District of Texas, 19 CV 259 (W.D. Tex.). As usual, for most cases in federal and state court, the parties had agreed to a case management order in which they agreed upon a deadline for dispositive motions. On the eve of the deadline, Home Depot filed a motion for summary judgment. Rollins’s counsel never saw the electronic notification of the motion filing and accompanying documents because it apparently had been redirected to a folder he did not regularly monitor (e.g., a junk or spam folder). The attorney also did not check the court’s electronic docket system.

Rollins did not file a responsive filing by the response deadlines, so the district court entered summary judgment against him. Rollins, through his attorney, immediately sought relief under Federal Rule of Civil Procedure 59(e) by filing a motion for a new trial. The district court denied the relief sought.

The district court found that counsel for Rollins had agreed to accept filings through the ECF system via the email address he provided. It also found that the parties had agreed to the deadline for dispositive motions. Counsel for Rollins attempted to argue that because the email had been “inadvertently filtered” by the firm’s email system, Rollins was entitled to relief.

In Kevin Rollins v. Home Depot USA, the Fifth Circuit squarely rejected the argument and appeal. Relying on Trevino v. City of Fort Worth, 944 F.3d 567, 570 (5th Cir. 2019), the Fifth Circuit had previously rejected a similar argument where “defective antivirus software diverted court emails to a spam folder.” According to the court, it was not a matter of counsel’s good faith; instead, the court focused on whether the failure to file was “within counsel’s ‘reasonable control.’” The Fifth Circuit also cites Fox v. Am. Airlines, Inc., 389 F.3d 1291 (D.C. Cir. 2004), which describes the counsel’s argument as “an updated version of the classic ‘my dog ate my homework’ line.” No new (or seasoned) attorney wants that penned to an opinion attached to their name.

Here, the lesson is simple: rummage through your junk and spam folders on a day/time every week, whether it’s Monday at 10:00 a.m. or Thursday at 12:42 p.m. What may pass into your inbox one day may be diverted the next. Do not let the dog eat your homework. Be legally competent regarding your email to comply with Rule 1.1.

“It’s Complicated”: Never the Status of a Competent Lawyer

Any “boomer” lawyer can tell a young associate that Facebook initially had a relationship status called “it’s complicated” in lieu of “single,” “married,” or “divorced.” While the discovery of ESI may be complicated, it must be within the competency and proficiency of any attorney under Rule 1.1.

Andino Reynal, attorney for Alex Jones in the suit in the District Court of Travis County, Texas, stemming from the Sandy Hook Elementary School shooting, found himself in hot water over his inadvertent release of his client’s mobile phone data and records. The release and unexpected use of those records in the courtroom made hay for the plaintiff’s counsel and fodder for countless memes.

In response to an email inquiry from Bloomberg Law, Reynal stated, “E-discovery is complicated, and the stakes are very high when your team makes an inadvertent mistake.” Reynal attempted to correct the mistake through an emergency motion to claw back the disclosure, but the trial court denied that motion and the motion for mistrial. Reynal blamed a paralegal for the inadvertent disclosure. Again, courts hold attorneys who are not competent accountable for how they review and disseminate documents produced in discovery that may include confidential information.

On February 26, 2019, Texas became the 36th state to formally adopt an expanded definition of a lawyer’s competence to include an “ethical duty of technology competence” when the Texas Supreme Court entered its order, amending Comment 8 to Rule 1.01 of the Texas Professional Rules of Disciplinary Conduct.

Indeed, the stakes are high, so hedge your bets by fully understanding document review in the ESI context and how it works. Such knowledge is “legal knowledge” under Rule 1.1.

Moral of the Story—Competence Includes Being Competent with Technology

“The duties under Rule 1.1 make it imperative that all lawyers take the time to become proficient in all the technology they use,” warns Huey. “This includes knowing the settings and profiles and security measures in place—something most lawyers leave to their tech people at their peril.” She further elaborates that while “technology is often the final step in the work we do,” the failure to treat it as anything less than the most important step can lead to disaster. Proficiency is key.