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The Ethics of Technological Incompetence in the Law

By Jonathan R. Tung, Esq. | Last updated on

Maybe you learned to practice law before hacking became the scourge of institutions everywhere, including the government. If that's the case, you're probably having a difficult time understanding why you should worry about monetary risks associated with being incompetent in technology. Here's one reason to consider: you could be in violation of your professional duties.

It's true. Technological incompetence is the latest ethical violation for which attorneys are finding themselves attending an ethics hearing. What can you do to avoid this fate?

What the ABA has Done

Technology has changed so much in the last decade that it has fundamentally changed how law is practiced. and it has made many lawyers obsolete.

It's been a long time since 2012 when the ABA officially modified its Model Rules of Professional Conduct to reflect that lawyers not only have a duty to be competent in practice, but also competent in the technology needed to practice it. A good many states have officially adopted it into their rules, and you can bet that most if not all of the jurisdictions will follow suit.


E-discover is one technology that is on the lips of all practitioners, particularly litigators. Looking at the Formal Opinion No. 2015-193 from California's State Bar, we find that minimum competence involves an attorney at least being cognizant of potential issues that might come about by the mere fact that discovery could be in electronic form. It's unclear what this means because -- as always -- reasonable minds can disagree with vague wording.

Does this mean you can contract out the work to those more "competent" than you? Most likely, yes. After all, this sort of arrangement is pretty much already the case for many other types of practice.

Hackers and Unauthorized "E-Discovery" of Your Files

We're not so worried about e-discovery issues as we are the day-to-day issue of security, however. Hackers are so prolific today that they've become part of the social fabric. And they're not simply attacking banks and financial institutions, they're attacking law firms, too. So far, the attacks have mostly been on larger firms handling big M&As, but that doesn't mean that smaller firms are safe.

A lawyer's duty to secure client files mandates basic fluency in email encryption. But there's such a mountain of information out there and, as the old mantra goes, once you've learned it, it's obsolete. With that being the reality, however, you still can't just throw your hands up and declare "it's all over." Your liability carrier won't side with you.

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