Remember visiting your grandparents’ – or parents’ – house and snickering at the digital “12:00” blinking perpetually on their VCR? Or maybe that was your VCR, and now you can chuckle and admit that programming the darn thing was just too complicated. Even though VCRs have pretty much gone the way of the 8-track, apparently there are some in the legal profession who are perfectly content with that level of technological savvy in today’s legal world. But that attitude could have ethical implications for lawyers who adopt it.
The ABA House of Delegates will consider at its annual meeting in August a proposed change to Comment  of Rule 1.1 of the ABA Model Rules of Professional Conduct. If the change is adopted, the lawyer’s duty of competence set forth in Rule 1.1 would include an obligation to keep up with “the benefits and risks associated with relevant technology.” I recently read two articles that each mentioned the proposed change.
In the first article, a lawyer lamented the invasion of technology into the practice of law and seemed distressed by the proposed rule change. He suggested that lawyers should not have to bother learning about e-discovery technologies, or deal with pesky emails coming in all day. They should instead be permitted to ignore the computer altogether, stuff their satchels with reams of paper evidence, and show up in court to dazzle jurors with old-school trial mastery. Frankly, I didn’t think such Luddism warranted any mention in our blog. Clearly, this guy’s VCR is still blinking.
But then I read an article by Michael Arkfeld, who worries that there are many other such lawyers out there. Too many, in fact. These lawyers are content to leave the e-discovery issues to others, and “delude themselves into believing that ESI is not present in their cases.” I suspect Michael is right, and there is in fact a widespread “technological disconnect” within the legal profession.
One can argue that lawyers suffering from such a disconnect already are violating their ethical obligations. As the drafting committee of the proposed amendment noted, the change would not add impose any new obligations on lawyers; rather, “the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.” Apparently this “reminder” is much needed. In light of this serious problem, I urge the ABA delegates to adopt the proposed amendment.
In some courts, such as the Southern District of New York, the reminder already is in place, in the form of a standing order or local rule that requires parties to submit detailed agreements or proposals for the handling of ESI discovery. For a lawyer to prepare such a submission about e-discovery issues, presumably he or she must possess at least basic knowledge of those issues.
But the SDNY’s standing order goes even further. In a section titled “Competence,” the court requires counsel to certify “that they are sufficiently knowledgeable in matters relating to their clients’ technological systems to discuss competently issues relating to electronic discovery, or have involved someone competent to address these issues on their behalf.” (SDNY Standing Order M10-468, Exhibit B: Joint Electronic Discovery Submission and [Proposed] Order, Paragraph 2.)
Regardless of whether the ABA House of Delegates decides to amend the Model Rules, or whether a lawyer finds herself in a jurisdiction that imposes detailed requirements about the conduct of e-discovery, all litigation attorneys must have a baseline understanding of e-discovery issues to competently represent their clients.
Practicing law does not mean you have to participate in hacking weekends with teenage code geeks. But the days of ignoring that blinking digital “12:00” are long gone. If you’re a litigator — obviously you can operate your computer well enough to find this blog — then you should also know the difference between a terabyte and a gigabyte. If you don’t, go ask a junior associate down the hall.