Tech Tips, 0617 WYBJ, Vol. 40 No. 3. 54

• Author: Blake A. Klinkner Crowley Fleck, PLLP Cheyenne, Wyoming

Tech Tips

Vol. 40 No. 3 Pg. 54

Wyoming Bar Journal

June, 2017

Technological Savvy and the Attorney's Ethical Duty of Competency

Blake A. Klinkner Crowley Fleck, PLLP Cheyenne, Wyoming

Wyoming Rule of Professional Conduct for Attorneys at Law 1.1 provides that "[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 language of Wyoming's Rule 1.1 is identical to the American Bar Association's Model Rule of Professional Conduct 1.1, and most, if not all, states have adopted identical or similar language in their rules of professional conduct. Comment 6 to Wyoming's Rule 1.1 instructs that "[t]o 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..."^[1] By incorporating Comment 6, which contains language identical to Comment 8 of the American Bar Association's Rule 1.1, Wyoming recognizes the prevailing standard among American jurisdictions for technological awareness as a component of the duty of competency.

As technological competency has made its way into the overall competency requirement of attorneys under Rule 1.1, a variety of state ethics opinions have been issued in an attempt to help define the contours of Rule 1.1's technological requirements. Many of these opinions have addressed cloud storage and data security, and in doing so have advised that professional competency requires that attorneys understand the mechanics of cloud storage and only utilize data storage vendors who provide reasonable assurances that data will be stored confidentially and with proper safeguards against loss and theft.^[2] Other opinions have addressed how the transmission of metadata interplays with attorney competency and provide that competent representation means not only taking measures to remove metadata when transmitting documents, but also knowing when one may or may not ethically access and utilize metadata transmitted from opposing counsel.^[3]

If an attorney is not knowledgeable about technology in his or her practice, this could potentially rise to a point at which the attorney has an obligation, consistent with the duty of competency, to seek out the assistance of someone who is technologically savvy. For...