Competence Includes Tech Competence

Rule 1.1 requires lawyers to provide clients with competent representation.  It is the first rule in the Vermont Rules of Professional Conduct.

Now, the rules aren’t arranged in some sort of hierarchy of importance. It’s as important to comply with Rule 8.4 as it is to comply with Rule 1.1.

But it’s the first rule, which might mean that it’s the VERY FIRST THING the ubiquitous “they” thought of when they thought “what should the rules be?”

The Vermont Supreme Court is considering whether to  follow the ABA’s lead and adopt a comment that makes it clear that the duty of competence includes a duty to stay “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  ABA Model Rule 1.1, Comment 8. 

Comment or not, it’s inconceivable that the duty of competence does not include understanding technology and how it impacts your clients.

Consider these questions:

1.  You represent a company.  Do you know whether the company provides its employees with mobile devices? What does the company do with the old ones that employees trade in? Do you know how to advise your client on preserving ESI?  When does the duty to preserve ESI kick-in?  Do you even know what “ESI” means?  Opposing counsel asks for discovery in native format.  Is your response “wait…what?”
2. You represent the plaintiff in a personal injury case.  Your paralegal informs you that the client recently posted to YouTube a GoPro video he took while boarding Stowe’s Nosedive trail.  A few minutes later, your client calls and asks if he should take down the video.  What’s your response?
3. You represent a criminal defendant.  The state has an eyewitness who is 100% certain that your client did it.  Your client, however, tells you that the eyewitness checked-in on Foursquare some 45 miles from the scene of the crime at the exact time the crime is alleged to have taken place.  Do you know how Foursquare works? Would you be able to authenticate and admit the check-in?
4. You communicate with your clients via text.  When the representation ends, Rule 1.16(d) requires you to deliver to the client “papers and property to which the client is entitled.”  Are texts “property” to which the client is entitled? Are they “writings” ?  If so, do you know how to move them from your mobile device to the file?  What if the client files an ethics complaint that alleges that you never communicated with her? Would you be able to retrieve and produce the text messages that prove otherwise?
5. Your practice focuses on estate planning. Have you heard of digital assets?
6. Do you know how to use technology and social media to create compelling demand packages or settlement offers for your clients?  If you’re in trial, are you using magic markers and an easel while the other side is using state-of-the art technology to present evidence?
7. Jury draw is next week. Is it ethical to review a juror’s internet presence? Is it ethical not to?

I ask these questions to try to convince you it’s no longer okay for attorneys to say “i don’t use technology” or “I don’t do social media.”  You know what? Your clients are using technology. Your clients are using social media. And their use of technology and social media may very well impact the matters in which you are representing them. Are you able to provide your clients with competent advice?

You don’t have to be an expert or know how to write code. However, it strikes me that the lawyer who chooses not to understand how technology and social medial will impact her clients does so at her own peril.

Oh – your client’s opposing party is a blogger.  Are his blog posts self-authenticating?

Thanks for reading. For those interested in reading more, here are some thoughts & resources:

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“ESI” is “electronically stored information.”  The discovery thereof is governed by Rule 34 of the Federal Rules of Civil Procedure and Rule 34 of the Vermont Rules of Civil Procedure.  The California State Bar recently issued an advisory ethics opinion outlining an attorney’s ethical duties in handling discovery of electronically stored information.  It’s here.  For a discussion of the opinion and many of the issues it raises, go here.  Not sure you’re ready to “do social media & technology?”  Well, take a look at this tale of a default judgment issued for discovery violations related to ESI?  Or this primer on “how NOT to produce” ESI.

This update from Gibson Dunn is one of the most comprehensive I’ve found.

Several states have issued advisory opinions related to the ethics of social media.  Opinions from Florida and Pennsylvania include guidance on advising clients to “clean up” social media platforms.  The most famous case on the topic might be this one, and it resulted in a 3 year suspension of the attorney’s license and a significant monetary sanction in the underlying civil case.

New York State Bar Association, Commercial& Federal Section, Updated Social Media Ethics Guidelines, June 29, 2015:  HERE

North Carolina State Bar Association, Formal Ethics Opinion 14-08, January 23, 2015 (discusses lawyer accepting “friend” request or other social media contact from judge):  HERE

Massachusetts Bar Association, Ethics Opinion 2014-5 (discusses when a lawyer may “friend” an unrepresented adversary): HERE

American Bar Association, Formal Opinion 466, Lawyer Reviewing Jurors’ Internet Presence, April 24, 2014:  HERE

Washington State Bar Association, Advisory Opinion 201402, (ethical issues of online endorsements & ratings):  HERE

State Bar of California, Standing Committee on Professional Responsibility & Conduct, Formal Opinion Interim No. 12-0006, December, 2014 (under what circumstances are lawyer blogs subject to the Rules of Professional Conduct)  HERE

New Hampshire Bar Association, Ethics Committee Advisory Opinion 2012-13/5, Social Media Contact with Witnesses in the Course of Litigation, June 20, 2013: HERE

San Diego County Bar Association, Legal Ethics Opinion 2011-2, May 24, 2011 (discusses lawyer sending “friend” requests to high-ranking employees of opposing party):  HERE

Philadelphia Bar Association, Professional Guidance Committee, Opinion 2009-02 (March, 2009) (discusses lawyer sending “friend” request to unrepresented witness whose testimony is favorable to adverse party):  HERE