Benefits and Risks

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(Pieter Brueghel, The Village Lawyer, 1625) (or, The World Before Spreadsheets)

I’ve been very, very, very, like glacially, slow-blogging a post about lawyers’ ethical duty of competency as it ties in to the ever-expanding capabilities and complexities of tech. Andrew Perlman’s excellent summary of ethical considerations on this issue was recently published in The Professional Lawyer, and it’s a must-read.

Perlman’s expertise and heavy involvement in shaping the future of the highest levels of thought on these professionalism issues shows through in this short article. Even as a digest, the article provides insight into a great many ethics/tech issues, including confidentiality of client information; e-discovery; and advertising/lead generation. Providing the spur for this kind of analysis is the recent (2012) change to Comment 8 to Rule 1.1 of the ABA Model Rules of Professional Conduct, which now emphasizes lawyers’ need to understand “the benefits and risks associated with relevant technology” as part of having the requisite knowledge and skill to handle a matter.

The comments to Rule 1.1 of the Illinois Rules of Professional Conduct (2010) do not contain that language. Our Comment 5, for example, is more general: “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners” (emphasis added). The latter phrase (if a bit circular) can certainly be seen as encompassing the kind of attention to technology that Perlman discusses, and practitioners seeking to limit risk, and disciplinary exposure, absolutely should see it that way.

Similarly, our Comment 6 suggests that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” “Keeping abreast of changes in the law and its practice” can and must include the kind of ongoing acquisition of technological aptitude, and understanding, that the new ABA comment envisions.

Comment 5 also notes that the “attention and preparation” that an attorney must devote to a matter “are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.” This relativist note seems a bit off when we consider it in light of technological competence. What is “major litigation” or a “complex transaction,” and when can we identify them as such? A “matter of lesser complexity” can quickly become much more complex when, for example, one party begins an e-discovery project whose scope the adverse party hadn’t anticipated.

The point of new Model Comment 8 is that lawyers should always be able to anticipate those kinds of problems in a general sense – not to know their adversary’s exact next move or the precise method with which to counter it, but not to be blindsided by a situation, especially one involving ever-more-common technologies. That remains true even in “matters of lesser consequence,” an unfortunate turn of phrase. One thing I learned as a disciplinary prosecutor who needed to proceed with some investigations and close others: everything is important to somebody.

The evolving commentary on professionalism and technology will produce more posts here, but Perlman’s article is an essential primer for the discussion.

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