Technology and Its Impact on the ABA Model Rules of Professional Conduct

by: Kelly A. Williams, a shareholder at Picadio Sneath Miller & Norton, P.C.

For this end-of-the year blog entry, I took a look back at some of the bigger developments in technology and the law in 2012.  One of these developments was the ABA’s revisions to its Model Rules of Professional Conduct to address technology.  These changes impact lawyers and clients.  Highlights of these revisions (Recommendation 105A) include the following:

• Rule 1.1 requires that every lawyer shall provide competent representation to a client.  Comment 6 of this rule has been amended to clarify that to maintain the requisite knowledge and skill necessary to represent a client, a lawyer must keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.

• Comment 4 to Rule 1.4 Communication, has changed from requiring a lawyer to promptly return telephone calls to requiring a lawyer to promptly respond to or acknowledge client communications, which is more encompassing and which includes e-mail, text messages, or other electronic communications from clients to lawyers.

• Rule 1.6 Confidentiality of Information was revised to include a new paragraph (c) which states that “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”  New comments addressing paragraph (c) explain that the unauthorized access to or the inadvertent or unauthorized disclosure of information does not constitute a violation of paragraph (c) if the lawyer made reasonable efforts to prevent the access or disclosure.  Factors to be considered in deciding if a lawyer took reasonable efforts include, but are not limited to, “the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g. by making a device or important piece of software excessively difficult to use).”  The comment also adds that “[a] client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule.”

• Rule 4.4 was revised to clarify that if a lawyer receives not only a document but also electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the electronically stored information was inadvertently sent, the lawyer has a duty to promptly notify the sender.  Comment 2 to Rule 4.4 was revised to explain that “a document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted.”  Moreover, the comment explains that for purposes of this rule, “electronically stored information” includes “email and other forms of electronically stored information, including embedded data (commonly referred to as metadata. . . .)”  The comment goes on to state that “[m]etadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”

The application and interpretation of these rules will be the big issue.  For instance, what does it mean for lawyers and clients that lawyers must keep abreast of the benefits and risks associated with relevant technology?  This could mean, for example, lawyers, especially in cases involving the production of large amounts of data, need to understand the benefits and risks of “predictive coding.”  It could also mean that lawyers need to know the benefits and risks of “cloud computing” and other relatively recent technological advancements affecting the practice of law.  Another important issue is what a lawyer must do to protect client data from being stolen or lost.  The model rules give factors to be considered, but these hardly provide all the answers.

While Pennsylvania has not yet adopted these revisions, lawyers in Pennsylvania should be aware of these requirements, should be guided by them and should be learning about technology.  Technology has a significant impact on lawyers’ clients and their practice.  Lawyers can no longer “hide” from technology.