TECHNOLOGICALLY COMPETENT: ETHICAL PRACTICE FOR 21ST CENTURY LAWYERING.

• Author: Kuehl, Heidi Frostestad

CONTENTS INTRODUCTION 1 I. BACKGROUND OF ABA MODEL RULE 1.1 AND DEVELOPMENT OF THE TECHNOLOGICAL COMPETENCY STANDARD 4 A. Substance of the Ethical Norms: Rule 1.1 and Rule 1.6 5 B. Scholarly Literature and Commentary: Law and Technology Trends 10 II. WHERE ARE WE NOW (1997-2018): EVOLUTION OF STATE CASES AND ETHICS DECISIONS 14 A. Typology of Cases and Ethical Decisions 14 B. National Summary of State Cases 15 C. National Summary of State Ethics Decisions 18 III. NEED FOR REVISION OR FORMAL GUIDANCE: A PROPOSAL FOR MORE DETAILED STANDARDS FOR TECHNOLOGICAL COMPETENCY MANDATES 26 CONCLUSION 29 INTRODUCTION

"I find the great thing in this world is not so much where we stand, as in what direction we are moving: To reach the port of heaven, we must sail sometimes with the wind and sometimes against it - but we must sail, and not drift, nor lie at anchor." (2) Imagine a time when calling and email were the primary modes of professional communication and digital connectivity. A transition occurred less than twenty years ago at the turn of the millennium with the increased prevalence of the internet. Companies like AOL, Hotmail, Google, and Yahoo drastically altered the practice of law for attorneys and other professionals in the United States. (3) Since the late 1990s, the expansion of technologies beyond email have exponentially grown with technology giants like Facebook, Twitter, Amazon, Microsoft, and proprietary legal online services like LegalZoom. (4) Today, the practice of law has made a huge transition into other more sophisticated digital realms: 1) encrypted information; 2) cloud computing; 3) virtual law practice; 4) artificial intelligence embedded in research; 5) social media; and 6) electronic discovery and courtroom technologies for a digital age. The ABA and state ethical and procedural rules are still grappling with the expansion of the use of more sophisticated digital communications by lawyers and their clients. Texting has become an accepted business practice in addition to email. (5) One recent example of the impact of texting in legal practice was illuminated by an Iowa Supreme Court decision. (6) The attorney in that case ignored thirty-five text messages and five certified letters that required updates on the court case from his clients, and the Court held that the lawyer violated the ethical rules. (7) The Court concluded that the attorney had not kept his clients reasonably informed about the status of the insurance case and suspended his license to practice law indefinitely as a reasonable sanction for the misconduct.

Technology has an obvious and drastic effect on the practice of law and will continue to expand during the next twenty years. As a result, attorneys should anticipate the use of emerging technologies, such as social media, by his or her clients. The legal profession, though, is notoriously slow to adapt to innovations in the legal practice. (8) Currently, ABA Model Rule 1.1 and its associated Comment 8 currently include the requirement of technological competence for an ethical practice. (9) The ABA Comment notes that an ethical practice includes knowledge and understanding of the risks and benefits associated with certain relevant technologies, but it does not specify the available technologies used for today's legal practice. (10) The impact of technology and social media on litigation and infiltration into our domestic and world markets are undeniable. (11) Moreover, areas of technological competence for lawyers have expanded to the ethical use of technology, e-filing, social media, prominent web presence and virtual lawyering, cloud computing, courtroom technologies, e-discovery, and more. (12) Best practices for lawyering in an era of social media, for example, include informing clients about responsible use of social media during representation and developing firm-wide social media policies. (13)

This paper will identify the obligations of technological competence embodied in Model Rule 1.1 and examine the current case law and ethical decisions that reveal the evolving national and state-specific standards for attorneys' technological competence. After reviewing the timeline of cases and current literature, the paper will propose a more uniform and specific ethical standard for baseline knowledge of various technologies according to current practice and use of ever-expanding technologies by today's lawyers. The landscape is constantly changing in the field of legal technologies, and attorneys must follow the new professional norms of technological competence for their ethical practice. A narrower scope for the national rule and its cogent implementation may be achieved by more detailed or rigorous rules, ABA guidance documents, CLE requirements, or state ethical mandates, which will create clarity for digital lawyering and boundaries for the ethical practice of law for a digital age. (14)

1. BACKGROUND OF ABA MODEL RULE 1.1 AND DEVELOPMENT OF THE

   TECHNOLOGICAL COMPETENCY STANDARD

   The American Bar Association's Model Rules of Professional Conduct, especially Rule 1.1 and 1.6, provide some general guidance for attorneys and the need for technological competence. (15) However, these broadly written rules do not provide much specificity regarding what those areas of technological competence should be in practice. The recent 2017 ABA Formal Opinion 477R, though, does provide some hints for typical technological issues that arise with modern-day lawyering and some formal guidance for general areas of technological competency, in conjunction with the ethical standards embodied in Rule 1.1. From paper to digital documents in e-discovery, to cloud computing implications for data storage, hacking, encryption, and data loss, a majority of today's attorneys seem ill-prepared to confront and to utilize all of the technological tools at their disposal, or navigate social media while practicing law. (16) The technological competency standard is meant to address lawyering in a digital age, but the current interpretations to the ethical rules do not clearly articulate the particular technologies within the standard or guidance documents. Further, scholars and judges are still grappling with a functional definition for what would constitute competent representation within the era of this widely expanding digital age for attorneys. In the arena of e-discovery, for example, the law of discoverable computerized data is clearly settled and evidence is discoverable if relevant. (17) However, the ethical norms are still murky in a few areas, including the emerging e-discovery world of predictive coding, knowledge of encryption by attorneys, and understanding of artificial intelligence. (18)

   1. Substance of the Ethical Norms: Rule 1.1 and Rule 1.6

      Attorneys have a longstanding duty to perform with adequate competency when representing clients according to both the law of torts and the professional responsibility norms. (19) ABA Model Rule 1.1 requires attorneys to have a certain level of competency or "legal knowledge...reasonably necessary for the representation" and the rule extends to several areas of more specific competence. (20) The technology amendments to Rule 1.1 now impose a greater duty for technological competency when the primary means of communicating with clients and exchanging documents in this digital age of practice is electronic and many legal services are now delivered electronically. (21) Thirty-one states currently require attorneys to understand the risks and benefits of technology to align with Model Rule 1.1 and the technology competence standard of Comment 6. (22) The ABA Comment to Rule 1.1 specifically notes that an ethical practice today encompasses knowledge and understanding of the associated risks and benefits of certain technologies. (23) Lawyers in sophisticated practices have relied heavily on electronic communications, but reports like the Kia Technology Audit by Casey Flaherty highlight the increasingly deficient technological skills of attorneys in practice. (24)

      The ABA drafted and adopted Model Rule 1.1 in 1983 as an aspiration to "[assure] the highest standards of professional competence and ethical conduct." (25) The ABA Model Rules require attorneys to both know the ethical rules and also take reasonable steps within their practice to comply with the rules. (26) Often, Model Rule 1.6, which requires lawyers to safeguard confidential client information, now increasingly works in tandem with Model Rule 1.1 duties of competence in a digital era. (27) The Comment to Model Rule 1.6 states that attorneys must "act competently to safeguard information relating to the representation of a client against unauthorized access by third parties" throughout the stages of client representation. (28) A majority of states in the United States, which currently includes 46 states, now requires compliance with the Mandatory Continuing Legal Education (MCLE) to maintain licensure and the importance of technology is now stressed as an area of emphasis for CLE programming. (29) Current trends in law practice management and CLE programming have shifted substantially based on the explosion of digital information and available electronic storage formats in practice today and for overall technological competence.

      In 1999, the ABA gave the first formal advisory opinion about protecting the confidentiality of unencrypted email. After various state ethics opinions were divided on the issue, the ABA formal decision gave clarity to the acceptable and prevalent attorney use of electronic communications, including encrypted and unencrypted email with clients and other parties during the practice of law. (30) The Committee analyzed the Model Rules of Professional Conduct's duty of confidentiality in Rule 1.6 to examine the lawyer's duties to prevent unauthorized disclosure in electronic communications and then also alluded to duties of competency when learning and...