Article Litigation, Technology & Ethics: Teaching Old Dogs New Tricks or Legal Luddites Are No Longer Welcome in Utah
| Publication year | 2015 |
| Pages | 12 |
May, 2015
Randy L. Dryer, J.
Technology is growing on an exponential curve and is touching every aspect of our lives. Changes that once took decades or centuries now take years. Even our judicial system, a system based on centuries-old jurisprudence and historically resistant to rapid change, is being impacted. The legal profession, viewed by some as a notoriously technophobic profession, is undergoing significant technological disruption. The litigation process, in particular, has been affected by technological advancement in ways unimaginable ten, or even five, years ago. We now do much of our Rule 11 pre-suit investigation through online search. Personal service of process through social networks is now acceptable in certain circumstances; complaints, exhibits, and other court filings are made electronically; the collection and production of discoverable evidence is aided by computer-assisted review and predictive coding; case-management software is commonplace as disputes involve vast amounts of digital information stored not only on servers, but on mobile devices and remotely in the cloud; case outcome and damage assessments are done by computers using complicated algorithms; jury selection is assisted by real-time social media research and software; and trials feature sophisticated presentation technologies, such as 3D modeling, animation, digital exhibits, and computer-generated simulations and re-creations.
All of these technological advances, of course, have potential ethical implications for the way we lawyers conduct ourselves. In August 2012, the American Bar Association recognized the impact of technology on the practice of law by amending the Model Rules of Professional Conduct after a three-year study by the Commission on Ethics 20/20. Although only a handful of states have incorporated the changes into their rules, most states are actively studying the Model Rule revisions. For a state-by-state recap of the status of the consideration of the revised Rules, see the link provided in the ABA Ethics Tip (May 2014), available at http://ww.americanbar.org/groups/professional_ responsibihty/seraces/ethicsearch/ethicstipofthemonthmay20l4.html. Numerous commentators have observed how the Model Rule changes, when adopted, will affect lawyers in every area of practice. See Daniel J. Siegel, Lawyers Can No Longer Stick Their Heads in the Sand, Line, Vol. 41, No. 2 (Winter 2015), available at http://www.americanbar.org/publications/litigationjournal/2014-15/ winter/lawyers_can_no_longer_stick_their_heads_the_sand.html. Most importantly for Utah lawyers is the fact that on March 4, 2015, the Utah Supreme Court adopted all the ABA changes to Rule 1.1 on Competence and Rule 1.6 on Confidentiality of Information. Despite the significance of these changes, there was not a single comment filed by any Utah lawyer when the proposed rules were posted for comment in October 2014. The changes became effective May 1, 2015, and have far-reaching implications for practitioners.
The bottom line is that being a legal Luddite[1] is no longer acceptable in Utah. The revisions to these two rules make it abundantly clear that ethical practice now requires technological competence. See Megan Zavieh, Luddite Lawyers Are Ethical Violations Waiting to Happen, Lawyerist (December 2, 2013) available at https://lawyerist.eom/71071/ luddite-lawyers-ethical-violations-waiting-happen/.
This article reviews the revisions to Rules 1.1 and 1.6 and sounds the warning on the potential ethical issues created by technological advances in four areas - communicating with clients, electronically stored information, social media, and data management.
RULE OF PROFESSIONAL CONDUCT 1.1
Utah Rule 1.1 is now identical to the ABA Model Rule and addresses the duty of competence that every lawyer owes to a client. That duty of competence now extends to having a working understanding of technology. Rule 1.1 provides: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonable necessary for the representation."
Comment 8 to Utah R. Prof'l Conduct 1.1 was amended to make clear that an understanding of technology is an expected duty of every lawyer. Comment 8 provides,
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.[2]
Model R. Prof'l Conduct 1.1, cmt. 8 (emphasis added). Of course, understanding the risks and benefits of relevant technology necessarily implies that lawyers will keep abreast of new technologies and will understand how they work. Our clients are increasingly technologically competent, and the newly adopted comment requires us to be likewise. As explained in greater detail below, these seemingly simple nine new words have significantly expanded the practical scope of what today's ethical lawyer must understand and confront. See Carolyn Fairless, Ethics: Attorney's Duty of Competence with Technology, available at www.trial.com/cle/materials/2013/fairless.pdf.
RULE OF PROFESSIONAL CONDUCT 1.6
Utah Rule 1.6 is also now identical to the ABA Model Rule. It addresses the duty to preserve client information and requires a lawyer to act competently to safeguard against unauthorized access to information and prevent inadvertent disclosure. The rule requires a lawyer to take "reasonable efforts" to prevent unauthorized access to or disclosure of client information. New Comment 18 to the rule was written with technology in mind and gives guidance as to what may constitute reasonable efforts:
Factors to be considered in determining the reasonableness of the lawyer's efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer's ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client's information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules.
Model R. Prof'l Conduct 1.6, cmt. 18. As discussed in greater detail below, technology has dramatically impacted the practice of law, and we are just beginning to see the interplay between technology and the revised Rules of Professional Conduct.
No Utah ethics advisory opinions address the ethical issues arising from recent technological advances.[3] As a consequence, Utah lawyers must look to other jurisdictions, which are just beginning to interpret and apply the revised ABA Model Rules or otherwise address the ethical implications of technological change.
Communicating with Clients
(New Channels and New Ethical Challenges)
The ways lawyers and...
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