Technology competence should definitely be a concern for Minnesota lawyers, now that the Court has amended the Minnesota Rules of Professional Conduct, effective April 1.
Comment 8 to Rule 1.1, in particular, urges lawyers to be competent not only in law and its practice, but also in technology. It reads:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)
On February 24, the Minnesota Supreme Court approved amendments to the Minnesota Rules of Professional Conduct, some of which reflect technological advancements in law practice. The proposed changes to the rules and comments to those rules were set forth in a joint petition filed by the Minnesota State Bar Association and Lawyers Professional Responsibility Board.
The petition called for changes including:
1) Rule 1.0 – Terminology. The word “e-mail” is replaced with the term “electronic communications” in the definition of “writing” or “written.” This accounts for the many ways of communicating by electronic media besides email. Comment (9) is also amended to clarify that screening procedures must screen a lawyer from electronically stored information, not just physical documents.
2) Rule 1.1 – Competence. Former comment (6) is renumbered (8) and amended to require the lawyer to keep abreast of changes in the law and its practice, including the benefits and risks of relevant technology.
3) Rule 1.4. – Communication. Comment (4) is amended to replace the last sentence, “Client telephone calls should be promptly returned or acknowledged.” with “A lawyer should promptly respond to or acknowledge client communications.” This is to reflect that lawyers not only must return or acknowledge telephone calls, but also email, instant messaging, Skype and other electronic communications from clients.
I look forward to the first ethics prosecution under this new language. To me, it appears that lawyers simply need to know that water is wet, or something. Other than it being a hammer for legal tech folks to scare lawyers, I’m not sure what it all means.
That being said, before anyone cries, I think technology is important.
Regardless of whether Minnesota actually adopted the comments to the rules — when you consider the prevalence of e-discovery, electronic court filings, and online research — lawyers ought to keep up with technological advancements and their impact on the practice of law.
The Court also did add a new paragraph to Rule 1.6 (Confidentiality of Information), which serves as wake-up call for luddite lawyers. Paragraph (c) states, “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access, to information relating to the representation of a client.”
Long existing comments already require lawyers to safeguard a client’s confidential information against unauthorized access and inadvertent or unauthorized disclosures. The ABA Commission on Ethics 20/20 recommended that this existing duty be added explicitly to Rule 1.6, in light of the widespread use of technology to store and send confidential client information.
Even if the duty of technology competence is not required per se, luddite lawyers face a higher risk of violating the ethics rules. Furthermore, incompetence in relevant technology often hurts a lawyer’s ability to attract, retain and represent clients.
This article provides general information only. Do not consider it as legal advice for any individual case or situation. The sharing or receipt of this information does not create an attorney-client relationship.
The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct in her articles. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance.
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Photo by: Mr. TinDC
The Court order states, “The petition asked the court to approve the proposed rule amendments and acknowledge the proposed amendments to the comments.” The order notes that the petition “is granted as to the proposed rule amendments,” but adds, “The comments to the rules are included for convenience and do not reflect court approval or adoption.”
In 13 States Have Adopted the Ethical Duty of Technology Competence, Robert Ambrogi pointed out the Minnesota order is confusing. It’s not clear whether the Court actually approved Comment 8 to Rule 1.1, which states that lawyers should keep abreast of the “benefits and risks associated with relevant technology” in law practice.
It’s also not clear how the amended comment affects the disciplinary process for lawyers. Brian Tannebaum, bar defense attorney and author of The Practice: Brutal Truths About Lawyers and Lawyering, noted: