Office of Bar Counsel

• Jurisdiction: Wyoming,United States
• Citation: Vol. 38 No. 5 Pg. 12
• Publication year: 2015
• Pages: 12
• Year: 2015
• topic: Business of Law,Technology

Office of Bar Counsel Vol. 38 No. 5 Pg. 12 Wyoming Bar Journal October, 2015

Mark W. Gifford, Bar Counsel.

The Lawyer's Obligation to Keep Abreast of Technology: New Requirements of the Wyoming Rules of Professional Conduct

Effective October 6, 2014, the Wyoming Supreme Court adopted numerous amendments to the Wyoming Rules of Professional Conduct, a number of which touch upon a lawyer's obligation to keep pace with technology. The changes were based on the American Bar Association's 2012 modifications to the comments to Model Rule 1.1, Competence ("...a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology...") and a new subpart (c) to Model Rule 1.6, Confidentiality ("A lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client."). Both of these provisions are now part of the Wyoming Rules.

What's reasonable? Comment 18 to Rule 1.6 lists relevant factors:

1. the sensitivity of the information

2. the likelihood of disclosure if additional safeguards are not employed

3. the cost of employing additional safeguards

4. the difficulty of implementing the safeguards

5. adverse effect on the lawyer's ability to represent clients

Comment 19 makes it clear that the client can demand more security or, with informed consent, accept lesser measures.

According to Sharon Nelson and John Simek of Sensei Enterprises, Inc., a legal technology, information security and digital forensics firm based in Fairfax, Virginia, "The change does not require a lawyer to become an IT professional — indeed, for most lawyers, dabbling in IT would be dangerous. They need outside or inside IT help in most cases — the small firms generally contract IT work to an outside IT service company. But all lawyers should be aware of the benefits and risks of technology to be a competent lawyer in the digital era. Hence, the change to Rule 1.1 makes good sense."^[1]

Nelson and Simek continue: "It is uncontroverted that the most disruptive force we have ever seen in the practice of law is technology. It is pervasive — and becomes more so with each successive generation of lawyers. We have reached the point in time where a lawyer cannot effectively practice law without technology — which makes it an imperative that lawyers know something about the technology they use."

Some practical...