Gov’t Lawyers & Tech Competence

Regular readers recognize my refrain:  Rule 1.1’s duty of competence includes tech competence.  Indeed, I expect the Civil Rules Committee soon to recommend that the Court follow the ABA’s lead and adopt a comment directed towards tech competence.   At least 24 states have already done so.

I’ve blogged often on tech competence.  If you missed the posts, here’s a list of a few:

Not many (if any) of these posts referenced tech competence and government attorneys.

Some of you might know my friend and colleague Brian Martin.  Brian is licensed to practice in Vermont, but recently moved to D.C. to take a job with Consumer Financial Protection Bureau.  Earlier this week, Brian sent me an article that highlights the dangers of government attorneys not understanding technology.

Note: if you click on the article, the “warnings” aren’t real. They’re part of the article’s graphics.  The article is HERE. It raises serious questions  not only about the application of the ethics rules to government attorneys, but about the harm that could result from a government attorney’s failure to understand technology.

The article hit home.

As recently as June 2012, I was the disciplinary prosecutor.  I never had occasion to, for example, have to review a lawyer’s hard drive and introduce into evidence data that it contained.  Or to prosecute a lawyer for failing to take reasonable precautions to protect electronically stored information.  Very candidly, I don’t know that I would have known how to handle either situation.  Following the theme in the article Brian sent me, would I have ruined a lawyer’s reputation & career by prosecuting a tech-related violation that I did not understand? Conversely, might I have dismissed a complaint that deserved prosecution merely because I did not understand a tech issue that, in fact, was clear evidence of a violation of the rules?

Anyhow, the article that Brian sent is another reminder that the duty of competence includes tech competence, no matter the area of law in which an attorney practices.

 

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