The Lawyer's Duty of Tech Competence Post-covid: Why Georgia Needs a New Professional Rule Now—more Than Ever

• Jurisdiction: United States,Federal,Georgia
• Citation: Vol. 39 No. 2
• Publication year: 2023

The Lawyer's Duty of Tech Competence Post-COVID: Why Georgia Needs a New Professional Rule Now—More Than Ever

Julia Webb
jskiver1@student.gsu.edu

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THE LAWYER'S DUTY OF TECH COMPETENCE POST-COVID: WHY GEORGIA NEEDS A NEW PROFESSIONAL RULE NOW—MORE THAN EVER

Julia M. Webb^*

Abstract

The American Bar Association (ABA) promulgates the Model Rules for Professional Conduct (Model Rules), which prescribe the behavior with which lawyers must comply in demonstrating competency to practice law. In 2012, the ABA updated Comment 8 to Model Rule 1.1 to require maintaining competence in the "benefits and risks associated with relevant technology," also known as a lawyer's "duty of technological competence." A decade later, the majority of state bar associations have adopted and implemented this language. Georgia, however, remains among the last ten states that have not yet formally adopted the duty of technological competence. The COVID-19 pandemic forced most legal work online, and judges, lawyers, and their clients adjusted to this new normal. With the drastic rise in remote work, no reasonable dispute remains as to whether lawyers should be subject to a duty of technological competence, although questions arise about how this duty should be defined post-pandemic.

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This Note argues in favor of Georgia's adoption of the duty of technological competence, proposes changes to the comments accompanying the Georgia Rules of Professional Conduct, and provides practical advice for legal practitioners and their technology departments.

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CONTENTS

Introduction.................................................................................555

I. Background.............................................................................557

A. Emerging Technologies in the Legal Profession...............558
B. The Evolving State of Ethics in the Legal Profession........559
C. The Rules of Professional Conduct...................................560

1. The American Bar Association's Model Rules of Professional Conduct...................................................560
2. Georgia's Rules of Professional Conduct....................561
3. The Disciplinary Panel and the Intersection of the Rules ......................................................................................563

II. Analysis...................................................................................564

A. A Lawyer's Duty of Technological Competence...............566

1. The Risks and Benefits of Relevant Technology...........567
2. Maintaining Competence ............................................. 568

B. Allocation of Authority with Technology...........................569
C. Confidentiality...................................................................573

1. Data Breaches and Unauthorized Disclosures............574
2. Other Inadvertent Disclosures.....................................578

D. Safeguarding Client Property...........................................579

1. Client's Funds..............................................................579
2. Data Breaches of Financial Information and Identity Theft.............................................................................580

a. An Attorney's Duty in Georgia..............................581
b. Georgia's Economic Loss Rule and Foreseeability ................................................................................582
c. Reasonableness and the Federal Trade Commission's Authority to Regulate Cybersecurity Practices......584

E. Supervision of Lawyers and Nonlawyers...........................587

1. Supervision of Lawyers................................................588
2. Supervision of Nonlawyer Assistants...........................591

a. Training Staff ......................................................... 591
b. Outsourced Technology Services...........................592

III. Proposal.................................................................................593

A. Tech Competence............................................................... 594
B. Scope of Representation in a Remote Work World............596
C. A Lawyer's Reasonable Efforts.........................................596
D. Law Firm Management ..................................................... 598

1. Big Law ........................................................................ 599

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2. Small Firms and Solo Practitioners.............................601

Conclusion....................................................................................603

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Introduction

Globally, governments mandated stay-at-home orders and shut down services in response to the COVID-19 pandemic, fundamentally transforming normalcy by blending work and home for many families.¹ With many industries reporting an increase in productivity and flexibility, an estimated 36.2 million Americans will be working remotely by 2025.² The legal profession's increase in remote working gave rise to an unprecedented increase in the use of technology, including virtual practice and videoconferencing.³ Additionally, some believe that the use of teleconferencing technology in court proceedings may be here to stay.⁴ These technologies are now part of a lawyer's everyday practice and are transforming the profession.⁵

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These changes propelled the profession of lawyering into "uncharted territory," and legislatures created new substantive laws to account for the new realities of legal practice.⁶ This new legal landscape, and the technologies associated with it, presents a unique opportunity to reform the system and redistribute the benefits and burdens within it, further opening "the doors of justice wide[r] . . . for all people," not just the privileged.⁷ Presented with an opportunity to emerge from the pandemic with an improved justice system, lawyers must reflect on their ethical duty to keep up with the pace as technology rapidly changes the world.⁸

In the legal sphere, technological competence can be defined as "an understanding of the technology that a lawyer currently uses in his or her practice, the additional technology available, and the technology that a client or prospective client uses or owns."⁹ A lawyer's practice is no longer limited to the technology basics of cloud storage, emails, and e-filing.¹⁰ Technologies such as videoconferencing and document review enhanced by artificial intelligence (AI) have become a part of everyday practice for all attorneys.¹¹ Once upon a time, a lawyer's use of AI may simply have been for electronic discovery, but its use has expanded into other areas like "legal research, drafting, contract management, and litigation strategy."¹² A lawyer's ethical duty of technological competence changes over time as new technologies emerge and evolve in the legal profession.¹³ Because of the State Bar of Georgia's role in shaping ethical standards, it should adopt language to accompany the Georgia Rules of Professional Conduct (Georgia Rules) and provide guidance for technological competence to match

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the legal profession's ever-changing needs. This Note dives into a lawyer's professional duty of competence with relevant technology, considers the legal pitfalls of using technology in upholding a lawyer's duty, and recommends changes to the Georgia Rules.

Part I explores the background of the professional rules and statutes that govern a lawyer's ethical responsibilities, professional behavior, and duties to clients regarding the evolution of technology in practice. Part II provides an analysis of the litigation, disciplinary actions, and intersection of various rules and statutes governing a lawyer's duty within the technological sphere. Finally, Part III proposes that Georgia adopt new guidance regarding a lawyer's duty of technological competence, given how post-pandemic technology has fundamentally transformed a lawyer's practice. This Note proposes changes to the comments accompanying the Georgia Rules and provides practical advice for legal practitioners regarding the use of relevant technology.

I. Background

Technological innovation and transformation are ongoing throughout the legal profession.¹⁴ The profession, however, has a reputation for resisting change and reform.¹⁵ The COVID-19 pandemic forced technological changes like the rise of remote work and the use of videoconferencing in court proceedings, which then became normalized.¹⁶ And these changes are all here to stay.¹⁷ As Big Tech pervades the legal realm, a lawyer's duty of competence in relevant technology is continually evolving.

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A. Emerging Technologies in the Legal Profession

Less than three decades ago, legal practitioners rarely used computers, and there were concerns regarding email security.¹⁸ Email, once an innovative and rarely used messaging system, has become commonplace, and newer technologies, such as those that use predictive analytics, have transitioned into normal use.¹⁹ Although new technologies like legal analytics and AI have been anticipated for years, many lawyers are using these tools unknowingly.²⁰

Today, lawyers use tools with predictive coding to assist with document review, drafting, analytics, online dispute resolution, videoconferencing, cloud computing, remote work networks, and email.²¹ New technologies provide lawyers with many benefits including "increase[d] efficiency, minimize[d] mistakes, and decrease[d] labor costs."²² But technology does not come without risks and drawbacks—including hacking, phishing attacks, ransomware, email compromise, malicious insiders, and network vulnerabilities.²³ Even so, with training, careful planning, and expertise, the benefits of emerging technologies significantly outweigh the risks.²⁴

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B. The Evolving State of Ethics in the Legal Profession

A lawyer's duty of technological competence is important.²⁵ Although not binding, the American Bar Association (ABA) urges courts and lawyers...