As a part of writing this blog, I do a lot of research on legal technology and how the use of technology impacts an attorney’s ethical obligations. Yesterday, I came across the article “ABA Requires Lawyers to Understand Technology” on Law.com, originally published on July 23, 2013 in the New York Law Journal. As I began reading the article, which talks about the amendments to the ABA’s Model Rules of Professional Conduct adopted last August, and I found myself wanting to claw at my eyes and rip out my hair. In order to preserve my vision and coif, I decided instead to come up with my Top 3 reasons why non-lawyers should NOT write about legal ethics:
1. They get it wrong.
2. They get it wrong!
3. Dear LORD they get it WRONG!!!
(Ok, a brief caveat: I’m sure there are plenty of legal ethicists out there, who are not licensed attorneys, that are able to talk about legal ethics without getting everything wrong, so to all who fit that description, I apologize.)
The bulk of my anger on this issue concerns an ABA model rule that I wrote about in an earlier post. The rule, as amended by the underlined portion, reads as follows:
“Maintaining Competence: 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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
What drives me so crazy? Well, here is just a sampling of comments regarding the effect of the new language from blogs and publications that I actually have a great deal of respect for:
From the IHeartTech blog: “And dear attorney, I know you don’t like to hear this but the truth is that you should become an expert on protecting your client data – after all, it is part of your job now.” (Referring to the new ABA rule about relevant technology)
And (amazingly) this from the ABA Journal: “It’s time to add boning up on the latest technology to your to-do list… Among every lawyer’s new duties: keeping up with technology relevant to the client and the representation.”
Lastly, the article I described above from the New York Law Journal states: “As emphasized by the American Bar Association’s 2012 amendments to the comments of the Model Rules of Professional Conduct, a lawyer’s duty to understand technology is no longer optional… the ABA now requires lawyers to understand both the technology that is owned by their clients as well as the tools necessary to collect, process, search and review the information.”
NO IT DOES NOT! That’s why non-lawyers should not write about legal ethics: THEY GET IT WRONG! The claims made by these commentators fail for a number of reasons:
The ABA Has No Actual Authority
The American Bar Association, in and of itself a worthwhile organization that does phenomenal work in law, is NOT a governing body for legal professionals. The ABA’s Model Rules (inclusion of the word “Model” really should give it away) are NOT binding rules for lawyers. The Model Rules are a template for states; suggestions for rules to be adopted in full, in part, or not at all, based on decisions made at the state level. So far, only one state, Delaware, has even adopted the language in proposed Rule 1.8, and only one other state, Massachusetts, has a pending proposal to adopt it. However, even in the ONE state where the rule is binding…
The Rule Itself Is Horribly Vague
How does one define “the benefits and risks associated with relevant technology”? What technology is relevant? What makes technology relevant? Does it refer to the technology available to the lawyer for use in their law practice, or the technology being used by the lawyer’s clients? What are “benefits and risks”? If someone is aware that using a technology can have a benefit, but decides not to adopt it, has that person satisfied the requirement? If someone is aware of certain risks, but takes no steps to address those risks, is that attorney in violation of the rules even if the potential threat never materializes? The rule does not provide anywhere NEAR the level of specificity about what technology the attorney must be familiar with, or how familiar the attorney must be. Given how vague the language is, the rule is either benign or unworkable without ethics opinions to more narrowly define its applicability, which leads me to…
Ethics Boards Are Not Trailblazers
Ethics opinions are written by attorneys who sit on ethics and professionalism boards. These attorneys tend to not be the youngest attorneys in the bar, but rather older, more established attorneys. These attorneys are less likely to be technologically inclined than younger attorneys, and therefore less likely to set rigorous standards regarding requirements to learn about new technology. More importantly, it is unlikely that more senior attorneys will be willing to broadly define the concept of “relevant technology” into the all-encompassing concept suggested by the commentators listed above.
These three factors serve to severely limit the reach of the amended rule regarding maintaining competency.
Yet in all the articles and reports that I have read about the impact of the Model Rule amendments, none of the issues I just discussed were mentioned. I wondered why such important aspects were omitted, until I looked a little more closely at what the authors of those articles were selling: technology consultation services. The New York Law Journal article had this particularly revealing line: “Recognizing that this may be difficult for novices to quickly master, it is recommended that guidance should be sought from professional resources.” Essentially, they’re taking a page from the CPI Security playbook: make people afraid of something, even if the fear is unjustified, inflated, or unsupported by evidence, then offer the necessary service to allay that fear.
In full disclosure, I have a small business that does information technology and services consulting, and we advise law firms on technology issues. However, I would never lie to an attorney or group of attorneys about the extent of their professional and ethical obligations simply as part of my sales pitch. Seems a little, I don’t know, unethical. What is equally terrible is that the New York Law Journal article actually discussed something quite interesting and important: that courts are beginning to utilize things like discovery sanctions to punish attorneys who do not effectively or efficiently utilize available technology in their cases. Yet, for me, that message was lost while I was recovering from self-inflicted eye gouges.
Technology in law is important, and the ethical impact that application of certain technology may have is hugely important. That’s why the issues need to be discussed at length, without hyperbole, and HONESTLY. Technology consultants are NOT authorities on the ethics of practicing law, and one might come to the conclusion that by incorrectly asserting that attorneys are now ethically required to use their services, they’re demonstrating that they have no real interest in acting “ethically.”