ABA’S Updated Ethical Rules Reflect Advanced Technology
A Guide for Plaintiff Trial Attorneys
Reflecting our modern digital age, the American Bar Association’s Committee on Ethics recently published its updated Model Rules of Professional Conduct. While attorneys are bound to the ethical rules of their individual states, the ABA Model Rules set the standard and are indicative of the technological trends affecting civil trial practice in the 21st century. The ABA made six major changes to its rules regarding electronic discovery, data and technology:
Competence Includes Knowledge of Relevant Technologies
Perhaps the most important change to the rules is regarding attorney competency. The ABA amended the comment to the competency rule to now state: “Lawyers must remain abreast of changes to the law and its practice, including the benefits and risks associated with relevant technology…” This explicit addition makes it clear that the ABA expects all attorneys to have a working knowledge of the modern technologies affecting the practice of law to remain in good standing.
Electronic Screening to Avoid Conflicts of Interest
When a new attorney joins a law firm, screens are used to segregate the attorney from any existing conflicts of interests. In addition to “tangible” screens (like keeping the paper files in a separate physical space), firms must employ electronic screens to prevent access to email communication and electronic data. This includes instructions and periodic reminders to staff of the electronic screens.
Definition of “Writing” Includes All Forms of Electronic Communication
Prior to the latest changes, the definition of “writing” included email. However, even the term “email” has become dated as we now communicate over text messaging, instant messaging and other means that do not squarely fit into the accepted and traditional definition of “email.” Therefore the term “email” has been replaced with the all-encompassing “electronic communications.”
Prompt Response to All Forms of Client Communications
In addition to expanding the definition of “writing,” lawyers must promptly respond to or acknowledge all forms of “client communications,” not just telephone calls.
Protections for Client Confidentiality
Of course, lawyers know they must safeguard a client’s confidential information. The new rule makes it crystal clear that lawyers must make reasonable efforts to protect against the inadvertent disclosure of, or unauthorized access to, electronic information and electronic communications.
Inadvertent Receipt of Confidential ESI and Metadata
Regarding the rights of third parties to a lawsuit, attorneys must know that anything electronically delivered or stored must be treated with the same care and confidentiality as paper documents. This includes the prompt notification and return of ESI or embedded data (also known as “metadata”) sent inadvertently.
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