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Tech obligations affected by ABA Model Rules changes

Stacked3This week's Daily Record column is entitled "Tech obligations affected by ABA Model Rules changes."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Tech obligations affected by ABA Model Rules changes

During the American Bar Association’s Annual meeting in early August, the ABA House of Delegates approved resolutions that incorporated updates to the Model Rules of Professional Conduct. These changes affected, among other things, cloud computing and outsourcing, confidentiality, and lawyers’ obligations to stay abreast of changes in technology. These were important amendments, intended to reflect the reality of practicing law in the midst of a rapidly changing technological landscape.

These resolutions were passed after years of work by the ABA Commission on Ethics 20/20, which was formed to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”

After many iterations of proposed changes to the Model Rules and many rounds of public comment and discussion, the House of Delegates at long last considered and passed a final set of amendments (online: http://tinyurl.com/abaModelRules2012).

One of the most important changes was the language added to the commentary to Rule 1.1, which requires lawyers to act competently when representing clients. The new comments specifically require that in order to maintain the necessary knowledge and skill, lawyers must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology …”

Also of import were the changes to Rule 1.6, which addresses lawyers’ duties when dealing with confidential information. Subdivision (c) was added to Rule 1.6 and now that lawyers shall “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

The corresponding commentary to that new subdivision explains that this subdivision is not violated so long as a lawyer has made reasonable efforts to prevent unauthorized access or disclosure. Factors to consider in making this determination include “the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).”

The commentary to Rule 5.3, which addresses lawyers’ responsibilities when using non-lawyer assistance, was also amended to address outsourcing issues, including the use of cloud computing providers for the purpose of storing confidential client data.

The new language provides, in relevant part, that lawyers may use third party non-lawyer providers, including: “an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services … a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.

“The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality … (A) lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.”

These amendments to both the rules and the commentaries are important additions to that reflect the ABA’s acknowledgement of the impact of technology on the practice of law. Unfortunately, I suspect that the requirement that lawyers’ stay on top of changes in technology, while undoubtedly a necessary requirement, is one that some lawyers will find to be unduly burdensome.

However, the stark reality is that, as I’ve been saying for years now, the effects of technology on the practice of law are inescapable. Up until now, many lawyers have chosen to ignore this fact — but, no more. Because of the passage of these new resolutions, technological ignorance is no longer an option.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.