Some Tech a Day Keeps the Malpractice Away?

Some Tech a Day Keeps the Malpractice Away?

As we’ve said before in our work on the cloud, the international cloud and BYOD, litigation and e-discovery continue to rise and digital devices and technology proliferate. How much have you kept up with technology, and are you ethically bound to? An August blog by criminal appellate attorney and legal blogger Mark Wilson poses this question.

The ABA modified Comment 8 to Rule 1.1 to require lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” According to Wilson, the lawyer who resists being informed doesn’t just risk formal discipline, he or she could face malpractice.

So, how much should a lawyer know? In Wilson’s estimation, forget the unhelpful measure of “reasonable”; he or she needs to be aware when having an understanding of the technology is relevant.

“Imagine a client’s case involves things he or she did on the Internet, or via email, or on a cell phone. One would presume that a lawyer preparing the client’s defense would have to know — at least at a rudimentary level — how the Internet works, or email, or cell phone networks. Of course, that’s why we have subject matter experts and the ability to associate outside counsel, but a lawyer at least needs to know enough to know that such understanding is relevant to the issue at hand.”

Wilson continues that Zubulake v. UBS Warburg made case for technology know-how even greater for corporate counsel. Now, in-house lawyers are “on the hook for understanding how the company’s document retentions systems work.” Furthermore, federal judges are growing more tech savvy and losing patience with counsel who aren’t keeping pace as the ABA Journal notes.

We welcome hearing from you on this — whether on your “old” or new device.

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