Here’s my latest Threat Assessment- those are my short warnings about key ethics dangers that both lawyers and the PD professionals who care about them, need to know.
Today: Technology scare (what a shocker). Our duty to supervise may have been drastically expanded in a recent opinion out of California. Specifically, the California Bar’s Standing Committee on Professional Responsibility and Conduct, Formal Opinion Np. 2015-193.
The opinion presents a hypo about a lawyer who messed up. He didn’t understand the technicalities of e-discovery, didn’t seek help from a professional with knowledge, and he let his adversary conduct an unsupervised e-discovery review of the client’s files. Result: disaster. There were allegations of withholding/obstructing discovery and a major leak of proprietary/confidential information to a major competitor. The opinion holds that the lawyer should have known better.
POINT 1 of 2: Competence is being expanded
The opinion states:
“An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law.
* * *
Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”).”
What we need to know: Certain technologies that have so integrated themselves into the practice that our duty of competence demands that we understand them. We can’t just rely on our “people” to know about it. We need to, individually, understand the systems.
What we need to know: We need to understand the underlying technology, not just the “law” about that technology.
POINT 2 of 2: Our duty to supervise is being expanded drastically.
The opinion also stated:
“The duty of competence…includes the duty to supervise the work of subordinate attorneys and non- attorney employees or agents…This duty to supervise can extend to outside vendors or contractors, and even to the client itself.”
What we need to know: Our duty to supervise doesn’t just include the lawyers and non-lawyers in our office. It is also includes vendors and contractors. But the big extension is that it might also include supervising the client itself. That is a change- we are familiar with the need to “advise” and “guide” a client. Now we may also be required to “supervise” the client as well. Does that mean watching their IT people? It depends, but this opinion basically says yes, sometimes.
Find more information like this in my live program: Tech Tock, Tech Tock: Social Media and the Countdown to Your Ethical Demise. See my course list here.