Tuesday, June 2, 2015

14 States Now Require Lawyers to Keep Up with New Technology

In 2012, the American Bar Association approved a change to the Model Rules of Professional
Conduct that defines “competence” to include keeping up with advances in technology.

Model Rule 1.1 provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Under the revised Comment 8 to Model Rule 1.1 (Maintaining Competence):

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 associates 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.)

States Where Keeping Up with Legal Technology is Required

So far, 14 states have adopted Comment 8. Massachusetts is the most recent, and the comment will take effect there on July 1, 2015.

The Virginia State Bar Council voted to adopt the rule change in 2015 but the change will not take effect unless and until it is approved by the state supreme court.

Earlier in 2015, the comment also became effective in Arizona, Minnesota, Ohio, and West Virginia. The states that adopted the rule previously were Arkansas, Connecticut, Delaware, Idaho, Kansas, New Mexico, North Carolina, Pennsylvania, and Wyoming.

Some states use slightly different language than in the ABA Model Rules, and some have their own versions of rules about lawyers’ use of technology.

For example, in New Hampshire an advisory opinion noted that every state bar association that has issued an opinion on cloud computing has stated that it is permissible as long as a lawyer takes reasonable steps to assure that sensitive client information remains confidential.

In New Hampshire, Ethics Committee Advisory Opinion #2012-13/4 states:

Competent lawyers must have a basic understanding of the technologies they use. Furthermore, as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes.

(Emphasis added.)

How Can Law Firms Keep Up with Legal Technology?

Given the rate of change in technology, and the vast array of sources of information about new technology, how can a law firm keep up with the “state of the art”?

One way is to follow what clients are doing.

Anaqua’s intellectual property management solutions is the choice of IP leaders worldwide and is used by more than a 500,000 users in more than 200 countries to manage more than a trillion dollars in intellectual assets. Clients include Microsoft, NXP Semiconductors, SAP, Honda, Coca-Cola and Xerox.

Using technology that’s outdated compared to what clients are using can make those clients wonder whether they’re getting the best value for their money.

As O'Shea Getz Managing Partner and patent attorney Richard D. Getz told us in a recent interview about the firm’s adoption of Anaqua,

“We try to be cost-effective for our clients, and we try to be as high-tech as possible. We're an IP firm -- we should be high-tech. This fits within that mold. You want the best tool going."

(To read the rest of the case study, please click here.)

How Anaqua Helps with Compliance with Ethical Rules

As we discussed in this recent blog, keeping up with technology also includes taking steps to keep client data safe from hackers:

an attorney or law firm is obligated to take reasonable and competent steps to assure that the client’s electronic information is not lost or destroyed. In order to do that, an attorney must either have the competence to evaluate the nature of the potential threat to the client’s electronic files and to evaluate and deploy appropriate computer hardware and software to accomplish that end, or if the attorney lacks or cannot reasonably obtain that competence, to retain an expert consultant who does have such competence.

As we said in our white paper on Making the Case for a Unified IP Platform,

Every additional file server, scanner, printer, email user, application and desktop presents a new attack vector for cyber criminals to exploit for the purpose of stealing the clients most valued assets.

And as we discussed in the previous blog,

Anaqua’s unified IP platform enhances information security for law firms by shrinking the attack “surface area.” By reducing process steps, printers, unmanaged emails and attachments, data stores, and file servers, Anaqua’s platform helps firms reduce the risk of criminal intrusions.

Additionally, if the unified IP platform is hosted in the cloud, the firm gains the additional benefit of having the entire platform managed in a secure, audited, and compliant data center.

Anaqua technology also helps firms reduce risks associated with docketing.  As discussed in our recent white paper,

Many firms are not where they need to be. They may have a traditional docketing system that is used by a small group for statutory deadline tracking, but its rules and reminders are not always considered reliable… Firms lack formal systems to verify foreign associates’ compliance with changes in country laws.…

The best-managed firms have moved well beyond this. They have a system with robust country rules to track risks and provide alerts. Exception reports are used to identify areas for process improvement. Risk management policies are supported and driven by integrated systems with multiple levels of review and control.

To learn more about Anaqua Essential for law firms, please click here.

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