For too long, the rate of technology adoption across the legal industry has lagged far behind innovation. As datasets grow larger and litigation costs rise, it’s critical for legal professionals to embrace the innovations that facilitate better outcomes.
Lawyers have a professional obligation to possess a functional understanding of the benefits of legal technology for their clients. And with increasing amounts of electronically stored information (ESI) to deal with, lawyers must also understand the associated risks and take the necessary steps to protect client data.
The ABA’s Model Rules of Professional Conduct sets a basic standard for competence, which includes a knowledge of relevant technology and a duty to protect client information:
- Rule 1.1: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
- Comment 8 of Rule 1.1: “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.”
- Rule 1.6(c): “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.”
- Comment 18 of Rule 1.6: “Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.”
- Comment 19 of Rule 1.6: “When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.”
- Rule 5.3(b): [With respect to a nonlawyer employed or retained by or associated with a lawyer] “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”
The Federal Rules of Civil Procedure also specify certain requirements for the discovery process, which includes procedures regarding electronically stored information (ESI). Failure to adhere to these Rules can potentially lead to sanctions. The relevant Rules include:
- Rule 16: Pretrial Conferences; Scheduling; Management
- Rule 26: Duty to Disclose; General Provisions Governing Discovery
- Rule 34: Producing Documents, Electronically Stored Information, and Tangible Things
- Rule 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
This article originally appeared in BDO USA, LLP’s “Forensics & Investigations” newsletter (April 2021). Copyright © 2021 BDO USA, LLP. All rights reserved. www.bdo.com
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