A Construction Lawyer's Duty of Technological Competence Ethical Implications of the Use of Technology and Artificial Intelligence
| Author | By Catherine W. Delorey, James A. Doppke Jr., Sanjay Kurian, and Benjamin T. Johnson |
| Pages | 51-74 |
Published in The Construction Lawyer Volume 43, Number 1, ©2024 by the American Bar Association. Reproduced with
permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any
means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Forum on Construction Law The Construction Lawyer Volume 43, Number 1
51
A Construction Lawyer’s Duty of Technological
Competence—Ethical Implications of the Use of
Technology and Artificial Intelligence
By Catherine W. Delorey of Gordon Rees Scully Mansukhani LLP in San Francisco, California; James
A. Doppke Jr. of Robinson, Stewart, Montgomery & Doppke in Chicago; Sanjay Kurian of Becker &
Poliakoff in Fort Myers, Florida; and Benjamin T. Johnson of Becker & Poliakoff in Fort Myers, Florida
Catherine W. Delorey is senior counsel and a member of the construction practice group at Gordon Rees
Scully Mansukhani, LLP in San Francisco, California. James A. Doppke, Jr., is a partner at Robinson,
Stewart, Montgomery & Doppke in Chicago. Sanjay Kurian is a managing shareholder in the office of
Becker & Poliakoff in Fort Myers, Florida. Benjamin T. Johnson is manager and litigation counsel for
American Express.
Introduction
Attorneys and construction industry professionals are adept at confronting changes: changes to what was
planned, changes to a contract, changes in negotiation posture. Even if one is adept at confronting change,
however, the ever-evolving landscape of technology can be daunting given the rate that new technological
advances become standard. Laptop computers, smartphones, social media, cloud storage, bulk data
transfers, Wi-Fi and Bluetooth connections, and cybersecurity concerns have become commonplace.
The legal profession used to have the reputation of being the last to adopt new technology. No longer.
The longstanding lawyer’s duty of competence has evolved in recent years to include a lawyer’s duty of
technological competence. But even what it means to be technologically competent continues to evolve.
The American Bar Association (ABA) and 40 states have amended their ethical rules to include the duty of
competence in technology.1 In the remaining states, some note that the duty of technological competence
is implied, even if not expressly written into the current rules.2
Lawyer’s Duty of Technological Competence
ABA Model Rules of Professional Conduct Rule 1.1 (“Competence”) provides:
A lawyer shall provide competent representation to a client. Competent representation requires the
legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.3
Rule 1.1 has contained the same language since 1983. In 2012, the ABA modified the comments to Rule
1.1 to expressly state that the lawyer’s duty of competence includes a duty to “keep abreast of changes in
the law and its practice, including the benefits and risks associated with relevant technology” (emphasis
added). Comment 8 to Rule 1.1 provides, in its entirety:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law
and its practice, including the benets and risks associated with relevant technology, engage in con-
tinuing study and education and comply with all continuing legal education requirements to which
Published in The Construction Lawyer Volume 43, Number 1, ©2024 by the American Bar Association. Reproduced with
permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any
means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Forum on Construction Law The Construction Lawyer Volume 43, Number 1
52
the lawyer is subject.4
How We Got Here: The Evolution of Technology and Legal Ethics
In the 1980s, the introduction of personal computers and subsequent advances in technology led to
an increasing integration of newer technology into the law and its practice.5 Also in the 1980s, fax
machines pervaded the law practice and it became clear that there were “benets and risks” associated
with the technology. The efciency of transmitting time-sensitive documents by fax greatly increased. The
likelihood of inadvertent disclosures, however, increased as well.
On November 10, 1992, the ABA Standing Committee on Ethics and Professional Responsibility issued
Formal Opinion 92-368.6 The opinion noted that advances in technology made it “more likely that
through inadvertence, privileged or confidential materials will be produced to opposing counsel by no
more than the push of the wrong speed dial number on a facsimile machine.”7 The opinion concluded that
“[a] lawyer who receives materials that on their face appear to be subject to the attorney-client privilege
or otherwise confidential, under circumstances where it is clear they were not intended for the receiving
lawyer, should refrain from examining the materials, notify the sending lawyer and abide the instruction
of the lawyer who sent them.”8 This opinion was later withdrawn, as discussed below.
Early Ethics Opinions on Email and Metadata
As email became more pervasive in the practice of law, new questions arose about inadvertent disclosure.
In 1999, ABA Formal Opinion 99-413 concluded that because email provided a reasonable expectation
of privacy, lawyers could use it to communicate with their clients. At the same time, the ABA Standing
Committee recognized that some information is so sensitive that an attorney might consider using
particularly strong protective measures depending on the sensitivity of the information: “Those measures
might include the avoidance of email, just as they would warrant the avoidance of the telephone, fax and
mail.”9
The rapidly increasing use of electronic documents and email attachments brought about new issues
concerning metadata—embedded data in an electronic document that may provide information about the
document, such as who authored or modified the document as well as how and when. Ethics opinions
about metadata have gone through an evolution of their own. For example, early opinions involving
metadata concluded that the receiving attorney had a duty to avoid taking advantage of an inadvertent
disclosure. In December 2001, the New York State Bar Committee on Professional Ethics published
Opinion 749, in which it concluded: “A lawyer may not make use of computer software applications to
surreptitiously ‘get behind’ visible documents or to trace e-mail” because it “constitutes an impermissible
intrusion on the attorney-client relationship.”10 This obligation was subsequently narrowed.
Model Rule 4.4 Narrows the Obligation on Receiving Material Inadvertently
In February 2002, the ABA updated Model Rule 4.4 (“Respect for Rights of Third Persons”) to address
email and metadata. In response to criticism of Formal Opinion 92-368,11 the amendments further
“narrowed the obligation of the receiving lawyer.”12
Model Rule 4.4(b), as amended, provides:
A lawyer who receives a document or electronically stored information relating to the representa-
tion 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.13
While Model Rule 4.4(b) requires the receiving lawyer to notify the sender of the inadvertent transmission
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