How Changes in Technology Affect Competency Rules
The client-lawyer relationship is an important one. With competent representation, clients receive legal services promised to them through the judiciary system. The American Bar Association Center for Professional Responsibility outlines this fundamental service in Model Rule 1.1: Competence, stating a lawyer is obliged to provide competent representation through the appropriate legal knowledge, skill, thoroughness, and preparation.
But how does this apply in a world of changing technological developments? The way in which information is spread and consumed through online technologies, and shared with third-party cloud computing vendors, offers greater risk for exposing confidential information – effectively breaching attorney-client privileges. As the impact of technology on the legal profession continues to evolve, it’s increasingly important for litigators to stay abreast of competency rules as they continue representing clients in a digital world.
There are many advantages to using the latest technologies when practicing law. Client-response time is fast and easy and office management is made more efficient. Technological advancements won’t slow down in the foreseeable future, so states are adopting strategies to best manage competency rules surrounding the use of technology in legal landscapes.
How States Are Responding
Rapid technological advancements occur in a legal system that’s slow to enact change, so many states – more than half – have adopted their own guidelines and strategies. Comments and formal opinions explain best practices for using technology in the workplace, helping clarify competency rules. Attorneys can then familiarize themselves with rules regarding the use of technology to manage clients and cases.
Such changes came after ABA Rule 1.1 was revised in 2012, adding comment 8 – a revision stating lawyers have an ethical duty of technology competence and are obliged to keep abreast of changes. While many states adopted comment 8’s somewhat vague language, others more adamantly issued guidelines on the use of specific technologies in light of ethical duties.
With the potential risk of breaching confidentiality, and undermining competency rules, states have been quick to adopt their own frameworks, helping litigators more clearly operate in a world of emails, cloud computing, and database management. A good case in point is the Illinois State Bar Association’s published Opinion No. 16-06.
More than Competency
Opinion No. 16-06 was published in 2016 to demand more than mere competency from lawyers. The Illinois State Bar Association opined that exercising due diligence while finding a provider is not enough – lawyers must operate with cloud computing vendors in a way that ensures confidentiality. Therefore, supervision of vendors may be necessary when ensuring client information is kept safe.
According to Illinois officials, litigators reasonably practice due diligence by:
Reviewing cloud computing industry standards in an effort to enact the best safeguards
Ensure the provider has provided security precautions, including firewalls, password protection, and encryption
Investigating the provider’s history and reputation
Inquiring if the provider has experienced any breaches in security and investigating those breaches
Requiring the provider to agree to the lawyer’s duties of confidentiality
Requiring all data is backed up completely under the lawyer’s control
Requiring provisions for the retrieval of information if need be
These practices clearly outline ways in which litigators can practice due diligence while working to maintain client confidentiality and ensuring data is secure – and remains secure.
Major Takeaways for the Modern Lawyer
Technology changes the way in which lawyers access and store client information. While many of these guidelines remain just that – suggestions for appropriate behavior – they safeguard lawyers from serious consequences in the unfortunate case that client data is stolen and confidentiality is breached. Many states have adopted their own strategies for protecting both litigators and their clients while storing and accessing sensitive information on cloud-based systems, ensuring confidentiality isn’t breached and data remains secure. Following similar guidelines, or adopting your own, ensures competent representation in a digital age.