The Legal Profession Found the Twenty-First Century: Ignorance is bliss no longer

As a profession, lawyers and bar associations are notoriously slow to change.  Last week, the American Bar Association considered and adopted updates to the Model Rules of Professional Conduct that govern lawyers.    The legal profession has found its way into the Twenty-First Century and clients will benefit.

The American Bar Association’s Commission on Ethics 20/20 filed its first six recommendations with the ABA House of Delegates on May 7, 2012.  These recommendations are the result of a three-year study of how “globalization and technology are transforming the practice of law and how the regulation of lawyers should be updated in light of those developments.”  The Commission’s recommendations have been split into two sets of proposals with the first considered by the ABA House of Delegates at its August 2012 meeting.  The other recommendations will be considered in February 2013.
The ABA stated that “technology and globalization have transformed the practice of law in ways the profession could not anticipate in 2002. Since then, communications and commerce have become increasingly globalized and technology-based.  In August 2009, then-ABA President Carolyn B. Lamm created the Commission on Ethics 20/20 to tackle the ethical and regulatory challenges and opportunities arising from these 21st century realities. She charged the Commission with conducting a plenary assessment of the ABA Model Rules of Professional Conduct and related ABA policies, and directed it to follow these principles: protecting the public; preserving the core professional values of the American legal profession; and maintaining a strong, independent, and self-regulated profession.”

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 ABA added the following language to Rule 1.6 which governs a lawyer’s duty to keep information confidential:  “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”  In Comment 16, the ABA clarified that this new language in the rule means:

“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 its amendments to Rule 4.4(b), the ABA concluded that electronically stored information should be treated like other documents.  Now, “[a] lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”

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.

Conclusion

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.

About Charles Skamser
Charles Skamser is an internationally recognized technology sales, marketing and product management leader with over 25 years of experience in Information Governance, eDiscovery, Machine Learning, Computer Assisted Analytics, Cloud Computing, Big Data Analytics, IT Automation and ITOA. Charles is the founder and Senior Analyst for eDiscovery Solutions Group, a global provider of information management consulting, market intelligence and advisory services specializing in information governance, eDiscovery, Big Data analytics and cloud computing solutions. Previously, Charles served in various executive roles with disruptive technology start ups and well known industry technology providers. Charles is a prolific author and a regular speaker on the technology that the Global 2000 require to manage the accelerating increase in Electronically Stored Information (ESI). Charles holds a BA in Political Science and Economics from Macalester College.