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New York Bar seeking to require lawyers to be more tech-savvy

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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New York Bar seeking to require lawyers to be more tech-savvy

In 2012, the American Bar Association amended the comments to Model Rule 1.1 to include the requirement that lawyers “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.” (Emphasis added). Since that time, more than 20 states have followed suit and required that their attorneys likewise educate themselves about the ever-changing legal technology landscape.

Last year, New York jumped on the bandwagon and modified the comment to Rule 1.1 (along with a number of other comments) so that it now mirrors the ABA comment discussed above and requires lawyers to “keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.”

Now the New York State Bar Association’s Committee on Standards of Attorney Conduct is proposing changes to the Rules of Professional conduct themselves (as opposed to the comments) (online: http://www.courts.state.ny.us/rules/comments/PDF/ProfConduct.pdf). After reviewing the ABA’s 2012 updates to the Model Rules, the Committee suggested that a number changes be enacted that directly affect New York lawyers’ obligations regarding technology. Let’s take a look at a few of the more notable recommendations.

First there’s the proposed change to Rule 1.0 which expands the definition of "computer-accessed communication” and clarifies that it includes any “electronic communication or any other form of recorded communication or recorded representation,” including those specifically enumerated in the rule.

There were also proposed changes to Rule 1.4, which addresses lawyer communications with clients. The proposed changes amend the current role to replace the more narrow term ''telephone calls" with the broader “communications,” which obviously encompasses the ever-expanding array of digital communications.

Next, Rule l.6(c), which addresses confidentiality of information issues, was also touched by the proposed changes. The new version expands upon the current version and requires that lawyers themselves take reasonable efforts to safeguard client information instead of simply obligating them to ensure that their agents do so, as the current version of the rule now requires.

The Committee explained that the revised rule would require lawyers to make “reasonable efforts” to prevent “(i) inadvertent disclosure (such as when a lawyer or
secretary accidentally sends an e-mail to the wrong person); (ii) unauthorized disclosure
(such as when a paralegal reveals information to an opposing party without the client's
consent); and (iii) unauthorized access (such as when hackers break into a law firm's
computer network).”

According to the Committee, the rationale for the proposed change to Rule 1.6(c) was driven by the acknowledgement that lawyers are increasingly storing confidential client data online: “Today…much of a lawyer's or law firm's data is stored electronically (including on smart phones, iPads, laptops, and other portable devices that can easily be lost or misplaced), and the threats to security are more complex…(L)awyers frequently communicate electronically with clients, co-counsel, experts, and others; and relatively few lawyers are experts in technology or computers.”

In the past I’ve criticized the current version of the rule to the extent that it requires lawyers to supervise and oversee those with expertise outside the realm of the lawyer’s training, such as IT expertise. To the extent that the revised language simply requires lawyers to take steps to ensure that they’ve vetted the third parties to whom they outsource IT or data storage, then this language makes sense. This is especially so given the revision to the comments to Rule 1.1 (discussed above) which requires lawyers to stay abreast of changes in technology. In other words, lawyers must take steps to educate themselves about technology so that they’ll have a basic understanding sufficient to allow them to vet third party technology providers.

At least, that’s my perspective. If yours differs, make sure your voice is heard! The Bar is now seeking comments from New York lawyers regarding proposed changes. Comments should be sent via email to rulecomments@nycourts.gov through June 1st.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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 niki@mycase.com.