Law.com's Law Technology News this morning has a report about the American Bar Association's House of Delegates considering proposed amendments to several rules or comments made by its Commission on Ethics 20/20, formed in 2009 to, among other goals, adapt ABA standard model rules to technology innovations in the practice of law, this August in Chicago.
Law.com observed the amendments appear modest, but their importance significant.
"Model Rule 1.1," it states, "requires lawyers to provide competent representation to a client. To do so, the comment to Rule 1.1 has always required lawyers to 'keep abreast of changes in the law and its practice.' The 20/20 Commission's recommended amendment to Rule 1.1 provides that this mandate will now include 'the benefits and risks associated with technology.' Lawyers who in the past blindly relied on third-party service providers for electronic discovery, search technology, data storage and security, cloud computing, and other technology needs will, to provide 'competent' representation, have to conduct a reasonable level of due diligence about what can go wrong in their use of technology to serve client needs."
ABA has published "model" ethical rules to govern the conduct of lawyers since 1908 and periodically reviews them and their explanatory comments in relation to trends in the practice of law, when necessary or desirable making amendments to them. The states typically follow suit with conforming amendments, but the model rules are not binding on lawyers that state's supreme court adopts them. With variations in some of the rules, 49 states and the District of Columbia have done so…. Ohio initially in 2006, Kentucky in 1989, and Indiana in 1986.
"Technology," the article concludes, "has allowed lawyers to become more efficient at a lower cost. Its benefit to lawyers is incalculable. But technology also has a dark side. Lawyers who embrace it without understanding its vulnerabilities and protecting against them may be in violation of the rules of professional conduct after the technology amendments to the Model Rules take effect across the country. For lawyers, technology due diligence is going to become never ending."