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Mohamed N. Bakry
A Lawyer’s Obligations Under the ABA Model Rules in the Virtual Courtroom
By Mohamed N. Bakry
The ABA’s Model Rules of Professional Conduct, Rule 1.1, states “A lawyer shall provide competent representation to a client.” This includes legal knowledge and skill reasonably necessary for the representation. In 2012, the ABA added technological competency to Rule 1.1:
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.20
To date, forty states have adopted the amendment to Rule 1.1. Attorneys have accordingly improved their understanding of data security as it relates to emails, storage of documents, office software, e-discovery, and transfer of data. In March of 2021, the ABA explained, in an ethics opinion, that so-called technological competence is essential for virtual practices.21
The ABA Standing Committee on Ethics and Professional Responsibility declined to endorse strict rules relating to a lawyer’s duty of technological competence but adopted a “reasonable efforts standard” and “fact-specific approach” based on the ABA Cybersecurity Handbook.22 With the transition to remote work, attorneys and law firms were required to develop systems and processes to ensure compliance with the rules of professional responsibility, with a focus on the duties of confidentiality, technology competence, communication, and supervision. Law firms were tasked with identifying technological solutions sufficient to permit lawyers to reasonably access client files while working remotely, while also preventing data loss.
The legal industry experienced a sharp spike in the use of technology as a result of the pandemic. Overnight, attorneys were required to utilize and master virtual software to conduct depositions, mediations, conferences, jury deliberations, and trials. Law firms and attorneys were practically required to spend thousands of dollars on new technology or else be deemed incompetent, as the duty to render competent legal services is not excused by the circumstances of the pandemic. Attorneys are now required to navigate virtual depositions, utilizing exhibits, and impeaching witnesses in an effective manner to further the cause of their clients. Failure to do so could be viewed as a violation of Rule 1.1, because there is an expectation – by courts and clients – that lawyers be conversant in technology. It is widely accepted that attorneys cannot provide competent representation to clients if they do not know how to use email. It is becoming clear that the same will be true for attorneys who are not equipped to handle hearings, depositions, and conferences virtually.
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Trial Tactics
FDCC ANNUAL INSIGHTS 2023