The Cloud: Helping Attorneys Meet Ethical Duties Associated with Technology
In November of 2017, Kentucky became the 31st state to adopt the American Bar Association’s revised Model Rule 1.1, which involves competence and a lawyer’s ongoing duty to provide competent legal representation to his or her clients. The rule states, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
On its face, the rule seems clear to any legal practitioner, and indeed, the language itself remains unchanged. But what Kentucky—as well as the majority of other states that adopted the rule—were really reacting to was the seemingly innocuous amendment to the rule’s Comment 8, Maintaining Competence. It reads:
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.
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So, what’s different? The reference to the benefits and risks associated with relevant technology. As attorney and legal-industry blogger Robert Ambrogi reports, the change to Comment 8 was a result of work the ABA Commission on Ethics 20/20 did over the course of three years that took a hard look at legal technology and the ethical considerations thereof.
It’s not difficult to imagine a myriad of ethical issues and implications stemming not only from just the rule, but a lawyer’s general obligations surrounding the modern practice of law. In the broadest possible sense, the scope of a lawyer’s duty here seems fairly obvious, but in practice, there are many layers—and they have many implications.
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