On August 6, 2012, the American Bar Association’s (“ABA”) House of Delegates voted to amend the comment to its Model Rule of Professional Conduct (“MRPC”) Rule 1.1, which governs lawyer competence. In amending Rule 1.1 the ABA sought to make clear that a lawyer’s skill set must include knowledge of the benefits and risks associated with various technologies.
In making its amendments, the ABA left the text of the Rule alone. Rule 1.1 states:
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
However, the amendment was to the comment that follows the rule, which acts as guidance to the meaning and application of the rule. The revision adds the following underlined text to the comment:
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.
What does this mean for attorneys practicing today? The “relevant technology” that attorneys must now understand could span every aspect of the legal field. For example, in the E-Discovery field alone, relevant technology could include the almost infinite list of software packages available for data mining, filtering, collection, production, and review. (And no attorneys, this does not mean simply scanning your hard-docs and making them into PDFs; rather, we are talking about the proper – and often expensive – use of the discovery software packages available to litigants.) Likewise, the broad language of the comment may even require that attorneys have a basic understanding of how computer forensics can play a role in their case.
Ultimately, we still are not sure, as the practical impacts of the changes are yet to be known. Thus, don’t throw away all your paper files just yet… But be warned, the message that the ABA is making is clear: technology is an important part of practicing law, and if you don’t understand it and make an effort to keep up with the ever evolving changes, you will get left behind.
If you or your company has any questions or concerns regarding the allocation of e-discovery costs, or any other e-discovery related issue, contact at Cynthia Augello via email at firstname.lastname@example.org.
A special thanks to Sean R. Gajewski, an associate at Cullen and Dykman LLP, for help with this post.