Like it or not, it seems, technology is here to stay. In almost every aspect of our lives, both personal and professional, everything is going digital. For some of us that simply means we can access email no matter where we are from our phones. Our data, and those cute pictures of our kids, are instantly available on the cloud. And, these days it seems, whatever you wish to do, there’s an App for that. All these features are available via the black box of ‘the cloud’ or ‘the internet’. We don’t care how it works, only that it does. For those in the legal profession, however, it has become the expectation that you have some idea how that ‘black box’ works so you can protect your firm and your clientele accordingly.
According to the ABA Rule 1.1 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.” As Robert Ambrogi notes in his February 9, 2017 Law Sites post, in the wake of the 2012 addition of comment , a total of 28 states have now implemented Technology Competence requirements for Lawyers. So, what does that really mean? According to her recent blog Sarah Andropoulos states
“…a number of states have gone further than simply adopting the language of comment 8, issuing opinions that have provided guidance regarding specific scenarios and technologies, and what they can mean for various ethical duties, including competence, confidentiality, supervision of non-lawyers, and preservation of evidence.”
For example, California has provided specific guidance on e-discovery. Other specific guidance has been provided for adequate internet research and ethical pitfalls associated with social media research. Furthermore, a number of State Bar Associations, including Illinois, Tennessee, Washington, and Pennsylvania specify the obligation to ensure data security when using cloud computing. Additionally, Andropoulos notes,
“… Pennsylvania and other states (including those discussed above) have issued opinions that include detailed lists of factors to consider in determining whether a lawyer’s efforts to safeguard client secrets when using technology such as cloud computing are sufficient under a reasonable care standard.”
As with many other areas of the issued ABA rules, and corresponding state requirements, the execution of often open-ended language is left up to the individual Lawyer to undertake ‘reasonable efforts’ to do the right thing. Thankfully, as Andropolous points out, there are “…numerous guides and resource centers on law firm security and technology best practices are available not only on the Internet, but also in the form of MCLE courses…” many of which are low-cost or free. She closes by saying
“These changes will not only help you fulfill important ethical obligations, but they can help you run your practice in a more efficient manner, free up your time to attract and work with more clients, and maintain a competitive edge.”
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