The legal practice and technology go hand in hand, and a solid understanding of technology is crucial to satisfy the ethical duties owed by attorneys to their clients. In an opinion published on Feb. 21, the New York County Lawyers Association Professional Ethics Committee (the "Committee") stressed that the legal practice needs to keep up with technology and that the duty of competence is evolving as technology advances and integrates with the practice. Therefore, attorneys should possess a higher level of technological literacy in order to provide skillful representation and adequate service to their clients.
The notion by which an attorney is required to familiarize herself with clients' IT systems and data retention practices isn't new; it is embedded within the Federal Rules of Civil Procedure, various local rules and rules of professional conduct, and in numerous court decisions (such as the notable Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)); however, the Committee's decision takes it one step further to determine that the duty of competence does not stop there. Attorneys need to be versed in clients' IT environments, but also adhere to a higher standard of competence and possess "sufficient understanding of issues relating to securing, transmitting, and producing electronically stored information" in order to protect clients' confidential information from cybersecurity risk.
The ethical duty of care to clients is not stagnant; it is a dynamic concept that stretches and expands as technology rapidly changes to accommodate new developments, tools and methodologies that affect the way we create, save, secure and transmit clients' data.
What does it mean for practitioners? Be mindful of and keep current with technological advancements, and rely on expert resources within your practice or proficient third parties so you can meet the requirements prescribed by the new reality. The opinion explicitly notes that attorneys who can't meet the requisite standard of care should decline the representation.
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