You, personally, gotta know your stuff |

I recently spoke at a law firm about the ethical implications when lawyers use technology. I was talking about lawyers who choose to store client information in the cloud and I explained how the lawyer needs to understand the technology associated with the cloud storage site that the lawyer may use. I explained that Rule 1.1 (Competence) demands that we, personally, understand those details. It was exactly then that a very irate lawyer shot up his hand and barked at me, “I’ll just bring my IT guy with me and point to him. I’ll tell that committee to talk to HIM about it, then I’ll leave.” While I was itching to answer in an obnoxiously New Jersey manner, I noticed that the angry lawyer was the only man in the room who happened to be older, white haired, male, and wearing a suit. He had “managing partner” written all over him. It was at that point that I figured I’d soften the edge on my reply, lest I not be invited back to the firm. I (ever so gently) explained that it was the lawyer’s individual responsibility to understand the technology and that we would not be permitted to simply bring our support staff to a grievance and wash our hands of the situation.

I thought of this today because I was reading the Alaska Bar Association Ethics Opinion No. 2014-3. That opinion addressed the ethics of using cloud services, and there is one sentence in particular that stood out. The opinion reminds us that, “Because the lawyer’s duties of confidentiality and competence are ongoing and not delegable, a lawyer must take reasonable steps to protect client information when storing data in the cloud.” Op. 2014-3 at 1-2. The key words, of course, are “ongoing and not delegable.”

Our duty of competence is a personal requirement. Sure, we can employ support staff to assist us with our practice, but the ultimate responsibility to maintain our competence lies with us. That lawyers would not have been able to simply bring his IT guy to the grievance and throw him to the disciplinary wolves. In fact, if he tried to do that I think he might get bit himself.