In the Know: How Much Tech Knowledge Do You Need to Meet Your Ethical Duty?

April 8, 2019 | Julie Brook, Esq. [CEB] REPRINTED WITH PERMISSION

A Luddite attorney is not a competent attorney, at least according to the ethical rules. But how much and what type of technology do you need to understand?

ABA Model Rules of Professional Conduct 1.1, Comment 8 specifically states that an attorney’s duty of competence includes keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

Although there’s no direct equivalent of such rule within the California Rules of Professional Conduct, the California rules on competence and diligence have been interpreted to include technological proficiency. Cal Rules of Prof Cond 1.1 and 1.3. See California State Bar Formal Opinion No. 2015–193 (“An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law”).

The duty to understand technology often arises in the contexts of cybersecurity and e-discovery.

Cybersecurity. An attorney has a duty to “maintain inviolate the confidence, and … to preserve the secrets of his or her client.” Bus & P C §6068(e)(1); Cal Rules of Prof Cond 1.6. This includes an obligation to “take appropriate steps to ensure that his or her use of technology in conjunction with a client’s representation doesn’t subject confidential client communication to an undue risk of unauthorized disclosure.” California State Bar Formal Opinion No. 2010–179. It may be necessary to appoint a Chief Privacy Officer to handle cybersecurity issues.

E-Discovery. California State Bar Formal Opinion No. 2015–193 describes an attorney’s duty of competence as it relates to e-discovery as follows:

Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). [T]he duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in the matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI.

And you can’t plead ignorance: A lack of technological knowledge won’t serve as a defense. In California State Bar Formal Opinion No. 2015–193, an attorney who was inexperienced in e-discovery risked breaching his duty of competence when he agreed to overbroad search terms, didn’t supervise the direct network search, didn’t pre-test the search terms before the network search, and failed to timely consult with an e-discovery expert.

These principles may also be applied to an attorney’s use of technology more broadly.

If an attorney lacks the required competence to understand or utilize a particular technology relevant to a case, the attorney may (Cal Rules of Prof Cond 1.1(c)):

• Acquire sufficient learning and skill before performance is required;
• Associate with or consult technical consultants or competent counsel; or
• Decline the representation.

For more guidance on opening a law practice and ethically representing clients, turn to CEB’s California Basic Practice Handbook, chap 1. And check out CEB’s program Electronically Stored Information and the Ethical Duty of Competence to learn what exactly is the optimal level of tech knowledge required to meet your duty.