New Technologies and Lawyer Competence, 0816 KSBJ, 85 J. Kan. Bar Assn 7, 39 (2016)
| Author | M. H. Hoeflich & Frank Siler, J. |
July, 2016
M. H. Hoeflich & Frank Siler, J.
Virtually every lawyer takes for granted that one of the more basic duties inherent in the lawyer-client relationship is that the lawyer be competent to undertake the representation. Competence is the first ethical requirement listed in the Model Rules of Professional Conduct and, consequently in the Kansas Rules of Professional Conduct1:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
The first comment to Rule 1.1 expands upon this requirement: In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.2
While competence is a fundamental requirement for practicing law, as evidenced by Rule 1.1 and by the fact that the competence requirement comes first in the Rules, it appears that the duty of competence is often taken for granted. Even more significantly, we suggest that the meaning of lawyer competence should be considered a critical standard that evolves over time.
If one reads Rule 1.1 and the associated comments closely, it becomes clear that the focus of the Rule is upon a lawyer's knowledge of and experience in the law. Comment [1] to Rule 1.1 is, in fact, titled "Legal Knowledge and Skill." Other comments speak of the need for an "analysis of the factual and legal elements of the problem"3 and the need to "keep abreast of changes in the law and practice."4 Today, however, we want to focus not on a lawyer's required competence in substantive and procedural law, but, rather, upon what level of competence in the use of technology is required by Rule 1.1.
It is not particularly strange that Rule 1.1 focuses upon competence in substantive and procedural law and not upon the technologies that make modern law practice more efficient at times and far more difficult at other times. The Competence requirement was first adopted into formal ethics rules with the adoption by states of ABA Model Code of Professional Responsibility
DR 6-101 (A) after 1970.5 Prior to this, the requirement of competence was more limited and generally thought to be subsumed under DR 6-101 (A) (3) [prohibition against client neglect] and DR 6-101 (A)(2) [lawyers must make adequate preparation].6 Rule 1.1 has not changed significantly from its first adoption. Thus, the Rule is now forty-five years old.
The age of the competence required by Rule 1.1 is quite significant. When the Rule was promulgated in 1970, the practice of law had not changed substantially for 50 years.[7] The digital age was not yet begun. Personal computing, the Internet, cell phones, even fax machines were not yet in general use.8 Electronic database search engines also were not in general use.9 When one author began working for a large Wall Street law firm in 1978, lawyers did not have computers or cell phones. The firm did not use fax machines for everyday tasks. Legal research was done primarily in the library using books, although the firm did have a Lexis terminal used by librarians when approved by the partner in charge.
Today, a newly graduated lawyer will have access to all of these technologies and many, many more. Indeed, we would argue that a lawyer today cannot practice law effectively without the use of modern technologies.
To codify the technology aspect of maintaining competence, in March of 2014 the Kansas Supreme Court adopted a modification to the Competence rule's Comments. Comment [8] now states "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." [emphasis added] Some law schools do not teach legal technology and its evolving applications to law students. Nevertheless, a number of court cases and opinions issued by advisory committees around the United States have made technical knowledge an issue of competence for lawyers, and it is more than likely that this trend will continue. The real question is how much technical knowledge is and will be required of lawyers sufficient to satisfy the ethical requirement of competence. Further, we must ask whether law schools have an obligation to revise their curricula if they have not already done so to teach legal technology to law students just as they now teach substantive and procedural law.
The Scope of Legal Technology
There is hardly any area of law practice today that has not been affected by the introduction of new technologies during the past several de- c ades. Anyone who reads legal periodicals such as the ABA Journal or the Journal of the Kansas Bar Association can testify that an issue rarely goes to press without at least one article concerning legal technology An increasing number of continuing legal education programs also now focus on the impact of various new technological advances. This article explores several areas of legal practice in which new technologies have had a major impact and which, we suggest, influence the requirements of Rule 1.1 on competence.
Lawyer Communications and Rule 1.6 Today lawyers face a multitude of communications media unknown to previous generations. At the simplest, lawyers now can communicate with clients using cell phones, fax machines and the Internet. On the Internet, lawyers have numerous choices, including email, Facebook, Twitter and a host of other social media, increasing almost daily. But, while these various new methods of electronic communication make lawyer-client communications much easier and untether lawyers from their offices to an unparalleled extent, they also pose immense difficulties for lawyers trying to maintain the confidentiality required by Rule 1.6. The first words of Rule 1.6 make the absolute duty of confidentiality quite clear: "A lawyer shall not reveal information relating to a client unless..."10
The Rule then goes on to enumerate the exceptions to the general requirement of confidentiality. Nowhere in the "black letter rule" exceptions is there one for a lawyer's lack of knowledge about electronic and digital security; however, Comments [26] and [27] provide some analysis.
The annotation to Rule 1.6 in the ABA Annotated Rules makes this concern explicit: Electronic communications-such as those made by phone...by fax, or over the Internet-pose unique problems related to maintaining client confidences because of the ease with which they may be intercepted by unauthorized and unknown persons...The lawyer's duty of confidentiality requires that when communicating through electronic means...the lawyer should be cognizant of the risks, and, if necessary, take protective measures.[11 [emphasis added] This is clearly a requirement that a lawyer have, at the very least, enough knowledge about a communications device to be able to assess the risk of interception and not only warn the client of this risk, but, if necessary, recommend and take measures to lessen this risk. A number of states now require that all lawyer-client email communications carry a warning to this effect. Both the ABA committee on Ethics and Professionalism and various state advisory committees have issued opinions on the confidentiality risks of lawyer-client electronic communications.12 It should be noted that the issue of communications security is not limited to electronic communications. The current climate of surveillance puts us at the point where our own postal service photographs the outside of every envelope passing through the mail.13
We suggest that even these opinions may now be insufficient and out-of-date. Since no communication is completely safe from interception, one pragmatic question to ask is sim-ply, "given the context and sensitivity of the information, how should...
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