publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/503802
ILTA WHITE PAPER: APRIL 2015 WWW.ILTANET.ORG 21 LEGAL ETHICS AND INFORMATION GOVERNANCE One thing to remember about ethics rules is that they apply to everyone in a law firm, not just lawyers. Many departments within law firms are critical to ensuring lawyers are complying with their ethical obligations. For example, finance departments help lawyers comply with trust accounting rules; marketing departments might advise attorneys on solicitation and advertising rules. It is only natural that departments utilizing technology will have an increasing role in ethical compliance as digital tools become one of the dominant facets of legal practice. 20/20 FORESIGHT In 2013, the ABA Ethics 20/20 Commission, charged with updating the model rules for the 21st century, took a hard look at how changes in technology have affected a lawyer's duties of competence and confidentiality. The ABA made several small but critical changes to the rules that will affect the way lawyers must think about technology in relation to their other duties. Lawyers have always had a duty to "keep abreast of changes in the law and its practice" (Rule 1.1), hence the continuing education requirements for lawyers, but that duty now includes "the benefits and risks associated with relevant technology." The rules also require that lawyers understand how changes in technology impact their duty of confidentiality, which is a significant undertaking in the era of third-party hosting and software as a service. THE INTERSECTION OF TECHNOLOGY AND ETHICS There are endless ways that technology impacts an attorney's ethical duties, but looking at the life cycle of information in a law firm is a helpful framework for spotting potential ethical dilemmas. RECEIVING: No one predicting the "paperless office" 20 years ago could have imagined the sheer volume of information that courses through law firms every day. Information is received and created with startling speed, multiplying and morphing as a Word document becomes a PDF, which becomes an A (Very) Brief Review of Relevant ABA Model Rules RULE 1.1 Competence: A lawyer must provide competent representation to a client, which includes the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation RULE 1.3 Diligence: A lawyer should act with reasonable diligence and promptness when representing a client RULE 1.4 Communication: A lawyer must reasonably consult with the client about the means by which the client's objectives are to be accomplished RULE 1.6 Confidentiality of Information: A lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information related to the representation of a client RULE 1.16 Declining or Terminating Representation: Upon termination of representation, a lawyer must take reasonably practicable steps to protect a client's interests, including surrendering papers and property to which the client is entitled RULE 1.9 Duties to Former Clients: A lawyer who has formerly represented a client in a matter shall not thereafter use information related to the representation to the disadvantage of the former client or reveal information relating to the representation