Briefly: Ethical implications of technology on appellate practice.

Byline: Eric J. Magnuson and Chelsea A. Walcker

Technological innovations have had a profound influence on the practice of law and the delivery of legal services. Today, virtual legal services, legal analytics, e-discovery, electronic legal research databases and case management databases, among other advanced technologies, make it easier than ever to work more efficiently and deliver better value for clients.

While the opportunities created by technological innovation in the legal profession present clear benefits, lawyers have been forced to grapple with difficult ethical issues surrounding ever-changing technology. Examining emerging ethical issues and developing an awareness of these ethical considerations will allow you to integrate the use of technology in your practice in a way that is strategic, productive, and ethical.

The duty of competence in a technological age

Minnesota Rule of Professional Conduct 1.1 outlines several core duties of all lawyers, including appellate lawyers, to be competent: having the "legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." These duties are particularly necessary for representation on appeal because appellate practice is highly technical and specialized and the stakes can be significant if errors are made. See, e.g., Swenson v. City of Fifty Lakes, 439 N.W.2d 758, 758 (Minn. Ct. App. 1989) (dismissing an appeal that was improperly taken from an order for judgment rather than from the judgment itself). Lawyers who are unfamiliar with the precise rules of appellate practice may not meet the standard of competence as defined in Rule 1.1.

Comment8 to Rule 1.1, which was a direct response to technological advances, extends the duties outlined in Rule 1.1: "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject."

This duty means that every attorney who handles matters in court must have at least a baseline level of competence in and understanding of relevant technology they use in their practice to satisfy their obligation to act competently. However, if you feel like you lack the required competence to handle certain technological issues, you can seek assistance from those with the technological...