Acquire it or hire it, technology competence is an increasing focus for the bar.
In its December 2014 Newsletter, the Technology Committee of the International Association of Defense Counsel (IADC) published “The Ethics of Technology in E-Discovery – An Introduction,” in which the authors, Julia Brickell and Peter Pizzi, explore the rules changes and ethics opinions recently issued by various bar associations around the country to make explicit the notion that technological skills may bear upon the ability of a lawyer to represent clients competently and ethically.
The article, which you can access here, addresses in particular changes to 1) Rule 1.1 of the ABA Model Rules of Professional Conduct; 2) the State Bar of California’s Proposed Formal Opinion Interim No. 11-00004; and 3) Rule 202.12(b) of the Uniform Civil Rules for the Supreme Court and the County Court in New York, changes from which one can infer that a lack of technological savvy may render an attorney ethically incompetent to handle certain litigation matters unless the attorney aligns with appropriate external expertise.
Although these rules changes and opinions do not impose any new obligations on lawyers per se, they imply or assert that knowledge of your client’s relevant technology, as well as technologies that may be used in eDiscovery, are as much within scope of competence as the laws applicable to the case. More, technological ignorance may put counsel at risk of other ethical violations (e.g., duties to communicate with your client, to maintain confidentiality, to not suppress evidence and/or duty of candor to the Court, notwithstanding a lack of bad faith). The State Bar of California’s Formal Opinion posits a troubling hypothetical illustrating how easily matters can go south if you don’t know what you’re doing.
In New York, the recently enacted Rule 202.12 dictates a sizable list of technological topics into which a judge may enquire at a preliminary conference, which translates into a list of specifics that counsel should be prepared to address when a case is reasonably likely to include electronic discovery. This list is a useful tool and should be considered by anyone engaged in eDiscovery in any state.
There’s no question that rules changes, opinions and reactions from the courts will continue to issue on this topic. Technological naiveté will increasingly be read as in incompetence by clients and the courts. If you don’t fully understand your client’s technological environment or the evolving technological methodologies available in eDiscovery and how they work, take the time to get yourself up to speed or find the appropriate expertise to support you. But, remember that just passing the buck to the experts doesn’t get you off the hook. Understanding the quality of the expertise you rely upon is also a reflection of competence; part of the duty requires informed selection by counsel of the right vendors, technological solutions, and QC methodologies.
Expectations continue to evolve; lawyers need to as well.