August 2012 Adopted Changes
Rule 1.1 requires that a lawyer provide “competent representation to a client,” which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The Comment to Rule 1.1 was amended to state that a lawyer’s competence must now include knowledge of “the benefits and risks associated with relevant technology.” No longer can a lawyer claim ignorance. The fundamental principle of competence now requires a lawyer to know and keep apprised of how technology impacts her practice and her representation of the client.
“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.”
In Comment 2 to Rule 4.4, the ABA added that “A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted.” “Metadata” is included in the types of electronically stored information that may be inadvertently disclosed. However, metadata in electronic documents “creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”
The ABA also tackled issues relating to Outsourcing and Technology and Client Development. Those issues will be addressed in another article.
While the ABA’s Model Rules are not binding on lawyer until adopted by the states, the influence of changes to the Model Rules cannot be overstated. Most states usually adopt some variety of changes made to the Model Rules of Professional Conduct. Thus, look for each state to address these recommendations over the next year. There will likely be some healthy and interesting debates to come. Stay tuned.
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