Can being a Luddite expose a lawyer to discipline? Maybe, said ABA members at a program during the group's annual meeting in Boston, pointing to a recent revision to the ABA's Model Rules as the culprit.
In 2012, the ABA modified Comment 8 to Rule 1.1 (that "a lawyer shall provide competent representation to the client") to require lawyers to "keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology" (emphasis added).
Andrew Perlman, the Ethics 20/20 Commission's reporter (and a professor at Suffolk University Law School) emphasized reasonableness as the standard: "You don't have to be paranoid. No one is expecting you to be perfect." But what is reasonable when it comes to lawyers understanding technology?
The ABA Model Rules already require prompt communication with the client, though they're replete with "reasonable" language, which is unhelpful. Having an email account and knowing how to send email seems like a good place to start. Even if the Supreme Court justices don't do email, lawyers will probably be expected to.
Joking aside, the Supreme Court of South Carolina did suspend a retired (but still active) lawyer in 2013 for failing to provide a valid email address to the state bar's information system. That was a state bar requirement, though, and there are no cases on whether failing to have an email address is unreasonable.
A Good Defense
The real problem for the lawyer who wants to remain firmly planted in the 20th century isn't formal discipline; it's malpractice. Imagine a client's case involves things he or she did on the Internet, or via email, or on a cell phone. One would presume that a lawyer preparing the client's defense would have to know -- at least at a rudimentary level -- how the Internet works, or email, or cell phone networks. Of course, that's why we have subject matter experts and the ability to associate outside counsel, but a lawyer at least needs to know enough to know that such understanding is relevant to the issue at hand.
The situation is even worse for corporate counsel. As Joel Cohen and James L. Bernard pointed out in the New York Law Journal, in-house lawyers are already on the hook for understanding how the company's document retention systems work thanks to Zubulake v. UBS Warburg. In that case, UBS couldn't find relevant emails because they'd been deleted as part of the company's recycling of its backup tapes. The court granted an instruction allow the jury to make an adverse inference of this lack of evidence and chided defense counsel for not preserving important evidence.
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- Catch up with tech or lose your career, judges warn lawyers (ABA Journal)
- Second Circuit Slams Lawyer for Failure to Update Email Address (FindLaw's U.S. Second Circuit Blog)
- Lawyers Are Failing at Secure File Sharing (FindLaw's Technologist)
- Do Judges Really Understand Social Media? (FindLaw's Technologist)