One Ethics Rule Leads to Another: Technology Competence and the Duty of Supervision

Association of Certified E-Discovery Specialists (ACEDS)

Association of Certified E-Discovery Specialists (ACEDS)

There are two ways lawyers can satisfy their ethical duty of technology competence. One way is by learning about technology and becoming more proficient in the use of legal tech tools. The other is by working in association with tech savvy lawyers and legal professionals.

From an ethics standpoint there is a key distinction between competence by education and by association. A lawyer who directs others’ work has a duty to make reasonable efforts to assure compliance with all applicable Rules of Professional Conduct.

The supervisory duty is found in Rule 5.1 (work performed by other lawyers) and Rule 5.3 (work performed by non-lawyers). The duty has three distinct components.

With power comes responsibility: partners and firm-wide ethics

First, partners have added ethical responsibilities because of their managerial role. ABA Model Rule 5.1/5.3 (a) provides:

(a) A partner in a law firm [or a lawyer having comparable managerial authority] shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all [lawyers and staff] in the firm conform to the Rules of Professional Conduct.

These are a few steps partners can take to raise the level of technology competence at their firms:

  • Pay for continuing legal education and technology training for lawyers and staff.
  • Be supportive of scheduling requests to take advantage of education and training opportunities, especially when made by staff and junior lawyers.
  • Set an example by attending in-firm programs and following good security practices.

Managing a legal team brings ethical responsibilities

The next provision has a wider scope. It applies to any lawyer who directly supervises another’s work. ABA Model Rule 5.1/5.3 (b) reads:

(b) A lawyer having direct supervisory authority over [another lawyer or a non-lawyer] shall make reasonable efforts to ensure that the [other lawyer or non-lawyer] conforms to the Rules of Professional Conduct.

These are three ways to incorporate ethics into the collaboration playbook:

  1. Focus on decision making in project planning – It’s important to define roles and responsibilities at the outset of every project. The supervising lawyer’s key role when delegating technology-related tasks is decision maker. Lawyers are encouraged to rely on others for tech education, advice and support. But they are still in charge and responsible for making informed decisions. This responsibility is imposed by the rules of civil procedure in addition to the rules of ethics.
  2. Stay informed about project progress – Setting expectations for communications is likewise important in project setup. This relates directly to Rules 5.1 and 5.3 because knowing what’s going on is a prerequisite to meaningful supervision. The communications plan should cover frequency and means. Err on the side of over-communicating when supervising inexperienced lawyers and staff or working with a vendor for the first time.
  3. Evaluate ethics in vendor selection – Confidentiality is always a paramount concern in outsourcing legal work. Evaluate all potential vendors on security of confidential information and privileged communications. Other ethics rules may come into play depending on the legal matter or task. For instance, investigations often raise some of the numerous rules about communications. Ask targeted questions during vendor selection to cover these areas.

Active management (not to be confused with micromanagement!) is a key element of effective collaboration. Rules 5.1 and 5.3 make it an ethical duty too.

Outsourcing an unethical act adds up to two rules violations

Last but by no means least is the prohibition on unethical conduct by proxy. ABA Model Rule 5.1/5.3 (c) provides:

(c) A lawyer shall be responsible for [another’s] violation of the Rules of Professional Conduct if:

  1. the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
  2. the lawyer is a partner [or has comparable managerial authority] or has direct supervisory authority over the [other lawyer or non-lawyer], and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take remedial action.

Note that paragraph (c)(1) applies to all lawyers from the newly minted to senior partners. It’s just common sense that lawyers can’t get around the rules of ethics by instructing somebody else to do what they can’t do themselves.

In the technology arena, social media has repeatedly proved a top danger zone. It’s good practice to delegate social media investigations and discovery to law firm staff or vendors with the right skills and software tools. But in doing so lawyers must take care that everyone involved understands and abides by these three rules of professional responsibility:

  • 4.2 Communication with Person Represented by Counsel prohibits unauthorized direct communication with people represented by counsel.
  • 4.3 Dealing with Unrepresented Person provides a lawyer must not state or imply disinterest when communicating with an unrepresented person on behalf of a client.
  • 7.1 Communication Concerning a Lawyer’s Services prohibits false or misleading communications about the lawyer or the lawyer’s services.

Education and association are complementary answers to the problem of technology competence. Competence by association doesn’t just supplement education, it promotes it too. Delegating tech tasks is a prime opportunity to learn about relevant technology. Lawyers should seize the educational opportunity as they fulfill their ethical duty of supervision.

Written by:

Association of Certified E-Discovery Specialists (ACEDS)

Association of Certified E-Discovery Specialists (ACEDS) on:

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