Model Rules Meet Modern Technology

The American Bar Association's House of Delegates has made noteworthy changes to the Rules of Professional Conduct that reflect issues raised by new online and electronic technology.

The recommended changes are largely improvements that recognize modern realities. The model rules are, of course, advisory, and these changes do not alter the enforceable standard of conduct for lawyers unless and until they are adopted and incorporated into each state's rules of professional conduct.

Nevertheless, they address important issues that impact every attorney's practice today. The House of Delegates:

• added to Comment 8 on Rule 1.1, Competency, that "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 ... ."

  It has long been a concern that a lawyer who does not use technology effectively for client files, trial support, case management and the like is willfully less competent than other lawyers in the community — a clear instance of malpractice.

  However, until now, the model rules have not identified technology as a clear area of competence. Lawyers with obsolete technology — or obsolete attitudes — should beware.

• changed Comment 4 on Rule 1.4, Communication, to say, "A lawyer should promptly respond to or acknowledge client communications" — not just "telephone calls."

  It has long been accepted that a consistent failure to return phone calls is the number one client complaint. This comment extends the reach to electronic communication, including emails and text messages. No matter how valid your reason for not responding to a client quickly, including being in court, there is no good excuse in this era of instant online communication.

• added to Rule 1.6, Confidentiality, a new subparagraph (c) requiring a lawyer to "make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

  That seems reasonable and straightforward when applied to electronic communication, but there are several issues that may or may not be covered here, according to Comments 18 and 19.

  For example, they say, a lawyer shouldn't have to make security arrangements that have the effect of "making a device or important piece of software excessively difficult to use."

  And the comments specifically say that requiring a lawyer "to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules." That seems an unwise cop-out; data privacy should be a major concern for all firms.

• added to Rule 4.4, Rights of Third Persons, language clarifying that the obligation to notify the sender of the receipt of inadvertently sent documents applies also to electronic information.

  That is explicitly clarified in Comment 2 to include "when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted."

Taken together, these changes affirm that the world of the law is more than ever the world of the computer. Lawyers should take note — and safeguards — to comply.