Sounding the Digital Tsunami Alert: Lawyers, The Standard of Care, Technology / by Steve Ellwood

Ron Davis, 
Steve Ellwood

In a recent article in the Advocates’ Journal1, we said:

Many lawyers act as though the litigation universe has not changed. They are placid beachside dwellers heedless to the warning sirens. They risk being submerged by the oncoming digital tsunami. They risk losing effectiveness as litigators. They risk falling below the standard of care and competence they owe clients.

As if to pile on to the warning we have been sounding, a headline in the New York Law Journal earlier this month trumpeted: "ABA Requires Lawyers to Understand Technology".2 In the article, the authors explain that the American Bar Association’s Model Rules of Professional Conduct were amended in 2012 to make technology awareness a part of ongoing professional competence. Comment 8 to ABA Rule 1.1, “Competence”, now says:

Maintaining Competence
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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.3

As the NYLJ article’s authors say:

The amendments (already adopted by most states) make it clear that a professional standard of technological competence is synonymous with legal ethics and that an attorney must be conversant about issues such as information technology, data retention and preservation, data processing, searching and production, review technology software, privacy (in the United States and abroad) and privilege. [...]

In other words, the ABA now requires lawyers to understand both the technology that is owned by their clients as well as the tools necessary to collect, process, search and review the information. Recognizing that this may be difficult for novices to quickly master, it is recommended that guidance should be sought from professional resources. (Emphasis added.)

Lawyers in Canada have yet to engage with technology to as great an extent as our American colleagues. As long ago as 2009, John D. Gregory observed:4

It is arguable that practicing without a solid knowledge of the implications of technology constitutes professional negligence.

More recently, author and lawyer Mitch Kowalski has pointed out that change is creeping up slowly on the the Canadian law industry, as the various participants in it begin to lose their fear of technology.5

Still, however, there is no equivalent to the ABA’s explicit ethical imperative from the law societies, bar associations or courts in Canada. Lawyers and the law in general are, to be blunt, lagging technologically.

The steps the ABA has taken underscore that the writing is on the wall. Technology in the legal profession is here to stay, and must form a basic part of lawyers’ competence. Or, to use the image from our earlier article, the tsunami is on the way, and the warning level has been raised from green to amber.

[1] "Lawyers On the Beach: The Standard of Care, Technology, and the Oncoming Digital Tsumani", The Advocates' Journal, Toronto: The Advocates' Society, June 2013.

[2] Gina M. Sansone and Howard J. Reissner, New York Law Journal, July 15, 2013, http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202610689072&ABA_Requires_Lawyers_to_Understand_Technology&slreturn=20130629082255, accessed July 29, 2013.

[3] ABA Model Rule 1.1, Comment 8, http://www.americanbar.org/groups/professionalresponsibility/publications/modelrulesofprofessionalconduct/rule11competence/commentonrule11.html, accessed July 29, 2013.

[4] "The Law Goes Electronic", in Mr. Justice Todd L. Archibald & Mr. Justice Randall Echlin, Annual Review of Civil Litigation 2009, Chapter D, section VI - 4, Thomson Reuters Canada.

[5] "A Lack of Fear Drives Change in the Legal Services Industry", http://www.slaw.ca/2013/07/18/a-lack-of-fear-drives-change-in-the-legal-services-industry, July 18, 2013, accessed July 29, 2013.