eDiscovery Daily Blog

• May 30, 2019

Last week, I read an article from Bob Ambrogi on Above the Law, that discussed his opinion (as well as that of Nicole Black, discussed in her Sui Generis blog) that the recently adopted Louisiana ethics opinion misses the mark with regard to guidance to lawyers regarding their ethical duty to understand technology.  When I saw that, I reached out to my good buddy Tom O’Connor (and the longest tenured Louisiana attorney I know, sorry Craig), for his take.  Did he agree with that assessment?  As Tom put it in his own Techno Gumbo blog (channeling his internal Lee Corso), “not so fast, my friend”.

The first shortcoming that Bob and Nicole point out has to do with language that seems to indicate that the duty to be competent in technology should kick in only if a lawyer “chooses” to use technology.  Two quotes from the opinion are as follows:

Spanning the bottom of page 1 and top of page 2: “The consensus is that if a lawyer is going to use technology, that lawyer has a duty to comply with Rules 1.1, 1.3, 1.4, 1.6 and 1.15 of the ABA Model Rules of Professional Conduct.”

First paragraph at the top of page 7: “Additionally, lawyers have ethical rules that require confidentiality of client information.  Thus, if a lawyer chooses to use technology in the lawyer’s practice, basic issues must be addressed.”

Bob identified a second shortcoming of the opinion via the Conclusion on page 9, that it “is directed solely at a lawyer’s own use of technology”, which “misses a critical component of the duty of technology competence – understanding the client’s use of technology”.

Here is that Conclusion: “A lawyer must consider the benefits and risks associated with using technology in representing a client.  When a lawyer uses technology in representing a client, the lawyer must use reasonable care to protect client information and to assure that client data is reasonably secure and accessible by the lawyer.”

Bob also referenced that “the ABA’s first opinion to address Model Rule 1.1, Comment 8 — Formal Opinion 477 issued in 2017 — makes the point repeatedly that the duty of technology competence encompasses the ability to understand how the client uses technology, what technology systems the client uses, and the client’s degree of technology sophistication.”

Tom noted that ABA Model Rule 1.1, Comment 8 was “horribly vague” when it was passed in August of 2012 and merely says  “ … a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  He also noted that Formal Opinion 477 dealt specifically with Securing Communication of Protected Client Information, the actual title of the Opinion and was “a specific technical discussion and not that of an overall duty of technical competence.”

Tom also noted that “everyone discussing this topic, quotes the The State Bar of California’s Formal Opinion No. 2015-193 with its ‘6 things ever lawyer needs to know about technology’ emphasis”, but that opinion is positioned as “advisory only” and “specifically refers ONLY to eDiscovery matters.”  Despite the fact that California is the only state to issue an eDiscovery competence opinion, they are one of only 14(?) states now that still hasn’t adopted the ABA Model Rule for technology competence.  Go figure.

With regard to whether the Louisiana opinion implies a choice of whether or not to use technology. Tom says “I personally think that’s splitting hairs in a way the Code doesn’t intend.  Perhaps a better word would have been ‘when’ not ‘if’, but still, do we seriously think anyone is NOT using technology? I mean they could choose not to use a phone either but I’m guessing their work would diminish. Rapidly.”  And, he notes that only two states have passed a subsequent CLE requirement for gaining that tech competence, so, by that standard, nearly every state (except for Florida and North Carolina) falls short.  That may be the real indicator that we still have a long way to go on attorney tech competence across the country.

I hit the highlights of the respective arguments, but I encourage you to read each of their articles/posts for more information.

So, what do you think?  Did Louisiana miss the mark with its ethics opinion on lawyers’ use of technology?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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