Although the legal field is not a profession known for embracing change, several developments over the past year have made it clear that even lawyers have an ethical obligation to understand the basics of modern technology. This summer, Massachusetts became the fourteenth state to include an express duty of technological competence in its state ethics rules for legal professionals. Additionally, 2015 saw the publication of guidance from three state bar associations—New York, Florida and California—which underscore the breadth and importance of the duty of technological competence.
The New York State Bar Association and Florida’s Professional Ethics Committee both issued guidance related to social media usage by lawyers. The Commercial and Federal Litigation Section of the New York State Bar Association promulgated Social Media Ethics Guidelines that advise counsel who utilize social media that they have a minimum obligation to understand how various platforms work and what information will be available to whom. Similarly, the Florida bar opined on the related issue of the ethics of advising clients to change or alter social media accounts, concluding that a lawyer can advise a client to change privacy settings, or even remove information, as long as the information is preserved.
The opinion issued by the State Bar of California Standing Committee on Professional Responsibility is the most far reaching, examining an attorney’s obligations concerning e-discovery generally and concluding that the “ethical duty of competence requires an attorney to assess at the outset of each case what electronic discovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by the other side.” Notably, this assessment must occur on a case-by-case basis because “the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI.” Following this analysis, “[a]n attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation.”