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

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.

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Beyond Competence: Technology and the Duties of Candor and Fairness in Litigation

Technology competence is an ethical requirement in more than 40 states. Beyond Rule 1 Competence, knowing technology helps lawyers comply with the duty of confidentiality and other rules of professional conduct. For litigators that includes the duties of candor and fairness.

Technology regularly meets the duty of candor in litigation

The duty of candor governs statements to the court. ABA Model Rule 3.3 Candor toward the Tribunal provides in pertinent part:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal.

These are some commonplace scenarios in discovery that illustrate the importance of electronically stored information (ESI), eDiscovery workflows and litigation technology:

  • Case management plan has a section for the parties’ electronic discovery statements, including ESI sources and anticipated use of technology assisted review (TAR);
  • Telephonic discovery conference is held to resolve a dispute over the production format of mobile data;
  • Motion to limit the scope of discovery based on proportionality factors such as cost and burden to collect and review voluminous ESI;
  • Motion for sanctions for spoliation of text messages and instant messages alleges insufficient legal hold notice and failure to disable auto-delete settings;
  • Expert report cites date- and timestamps from metadata for key documents;
  • Attempted clawback of unintentionally produced privileged documents hinges on the reasonableness of producing party’s review protocol and quality control measures.

Technology intersects with fairness at many eDiscovery stages

Where candor is a duty owed to the court, fairness is a duty owed to the opposing party and counsel. ABA Model Rule 3.4 Duty of Fairness intersects with eDiscovery in two subsections.

First, subsection (a) provides:

[A lawyer shall not] unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having evidentiary value.

The connection to preservation is obvious. Preservation failures, both unintentional and deliberate, consistently provide the most dramatic examples of lost discoverable data.

Spoliation can and does occur at other eDiscovery stages as well. In particular, metadata is easily altered during copying. It’s important to use defensible tools and processes during collection and processing. 

Second, subsection (d) provides:

[A lawyer shall not] in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

Today technology is part and parcel of complying with discovery requests.

On the left side of the Electronic Discovery Reference Model (EDRM), litigators must navigate the clients’ systems to identify and collect responsive data sources. On the right side, litigation technology is used to effectively and defensibly search, analyze and review ESI.

What litigators need to know about technology to satisfy the duties of candor and fairness

As lawyers we have an ethical duty to make honest and accurate statements to the court and reasonable efforts to comply with our clients’ discovery obligations. A pragmatic paraphrase is that we have to know what we’re talking about and what we’re doing.

Competence in these core areas of eDiscovery technology provides a solid foundation for candor and fairness in litigation:

  • ESI – main types and sources relevant to the lawyer’s practice area;
  • Metadata – what it is, how to use it and spoliation risks;
  • EDRM – at a minimum a high-level understanding of the stages and progression of the eDiscovery workflow;
  • Preservation – preservation in place vs. preservation collection, high-risk areas (e.g., auto-delete settings, BYOD, employee separation);
  • Collection – importance of forensically sound collection and risks of client self-collection;
  • eDiscovery tech tools – best practices for using review platforms, search tools and analytics;
  • Production format – basic terminology and common pitfalls.

Arguably the most significant eDiscovery trends of the last few years are exploding data volumes and proliferating data types. Litigation technology continues to develop rapidly in response. As both the problem and the solution technology is an inescapable part of discovery.

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Legal Ethics and Technology: The Duty of Competence

As lawyers we must be guided by the Rules of Professional Conduct in all aspects of our work. Today that includes competence in relevant technology. Technology is deeply embedded in contemporary legal practice, while data security is a universal concern across the legal sector. Litigators additionally must contend with the evolving demands of eDiscovery.

The duty of competence includes competence in relevant technology

Competence is the first rule for lawyers – in every sense. ABA Model Rule 1.1 reads:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

In 2012, the ABA amended Comment 8 to Rule 1.1 to read (emphasis added):

To maintain the requisite knowledge and skill, a lawyer shall keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.

At last count, 38 states had adopted this language verbatim or with minor wording changes. A few other states have issued formal opinions to the same effect. Requiring lawyers to have a basic degree of competence in technology has graduated from trend to clear majority opinion.

Relevant technology, part 1: legal practice tech tools

The key phrase in Comment 8 is “relevant technology” in conjunction with “reasonably necessary for the representation.” Technology has become an essential and inescapable part of the law in all practice areas.

From solo practitioners to BigLaw, lawyers use technology for:

  • Documents and operations – document management systems, cloud storage, e-rooms, file-sharing, time and billing software;
  • Communications and collaboration – email, messaging, chat, phone conferences and video conferences;
  • Litigation practice – online legal research, e-filing, eDiscovery software, video depositions, remote depositions, evidence presentation equipment and software.

Using legal practice tech helps us be good stewards of our time and our client’s money. The not-so-secret key to learning to use technology effectively is training and practice.

Tech competence extends beyond personal use however. Staying informed about associated risks and benefits includes evaluating and selecting the best tech tools for the job. At times it involves counseling clients about technology options and costs. Finally, it means knowing when and how to delegate (with appropriate supervision) or automate tasks to get the most from technology.

Relevant technology, part 2: data security

Legal practice tech wins for variety. Data security wins for urgency.

Confidential personal and business information is the legal sector’s stock in trade. We copy, transfer, access and store sensitive client files as a matter of course. A law firm is a one stop shop for a sizable trove of data from multiple individuals and companies. Data that has been pre-selected for its value.

The common law duty to protect confidential and privileged information is reinforced by ABA Model Rule 1.6:

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Data security intersects with legal practice technology at many points. Data must be secured in transit (file sharing, lawyer-client communications, etc.). It must also be secured at rest (law firm server, cloud storage, copies held by service providers and experts, etc.). Remote working has recently highlighted the importance of updating privacy and security settings in videoconferencing and other collaboration tools.

Following security best practices is essential technology competence for all lawyers. For example:

  • Use strong, unique passwords;
  • Make sure data is regularly backed up;
  • Watch out for phishing emails;
  • Never connect to unsecured wifi;
  • Utilize secure file transfer means;
  • Enable auto-lock on inactivity; and
  • Comply with information security policies and procedures.

And of course, be vigilant against security threats and use common sense.

Relevant technology, part 3: eDiscovery

It’s hardly an overstatement to say that all document discovery is eDiscovery. The vast majority of “documents” is ESI. The remaining paper is digitized for business use and/or discovery.

Technology competence is necessary for four general categories of eDiscovery tasks:

  1. Representations to opposing counsel and the court – Discovery involves numerous representations in written discovery responses, initial disclosures, meet and confers, discovery plans and discovery motions. Making accurate representations requires knowledge of ESI types and sources, production format and the significance of proportionality factors like data volume, cost and burden.
  2. Preservation – Knowledge of ESI types and sources also comes into play in writing effective preservation demand letters and legal hold notices. Some other tech-related aspects of preservation are auto-deletion (a high-risk area in preservation), IT protocols for employee separation and forensic imaging.
  3. Managing the eDiscovery project – Managing an eDiscovery project demands both wide-ranging and deep understanding of technology. This is especially true of the collection, processing and production stages of the EDRM workflow. Some cases additionally involve digital forensics.
  4. Document review – Document review is a complex operation. Reviewers need software training and experience to use review platforms effectively. Filtering, searching and utilizing advanced analytics tools requires a) knowledge of the ESI types in the dataset, b) review goals and c) review tool capabilities. Quality control similarly must be tailored to the review project, and can be technologically sophisticated; for example, statistical sampling in predictive coding reviews.

Lawyers depend on law practice tech tools. Clients’ information is electronic. Litigation involves eDiscovery. The conclusion is inescapable: technology is an inextricable part of contemporary legal practice. Using technology well is our professional responsibility to our clients.