Tuesday, June 11, 2013

Ethics: Lawyer Must Know Tech

From the monthly newsletter of the Disciplinary Board of the Supreme Court of Pennsylvania:

As this ABA Journal article notes, changes to the ABA Model Rules of Professional Conduct make it clear that a lawyer has a duty to learn and take account of advances in technology. A new addition to the comments to Model Rule 1.1, regarding competence, states that a lawyer’s duty of competence requires him or her to keep abreast of changes in the law and its practice, “including the benefits and risks associated with relevant technology.” A new provision of Rule Model 1.6 regarding confidentiality states that a lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, client information. A new comment to the rule states in part:

Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, 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).

Changes in the Model Rules only become mandatory when adopted by the Supreme Court of the state, but these changes certainly reflect changes in the nature of legal practice all practicing attorney will have to accommodate.

In other tech news, the ABA’s Standing Committee on Ethics and Professional Responsibility has issued a formal opinion addressing the use of electronic social media by judges and other judicial officers. The opinion concludes that the use of such media does not inherently conflict with a judge’s responsibilities, but discusses a number of issues and precautions of which a judicial officer should take account.



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