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President's Message
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TECHNOLOGICALLY SAVVY IS THE NEW COMPETENT

 

Science fiction writer (and non-lawyer) Larry Niven said: “Ethics change with technology.”  Writer/activist Stewart Brand put it in more menacing terms:  “Once a new technology rolls over you, if you’re not part of the steamroller, you’re part of the road.”  A new technology began to roll over us well over a decade ago, when email was fully embraced and the exchange of enormous volumes of email and other electronically stored information (“ESI”) became commonplace in our world.  Email dramatically changed the way we communicate with colleagues, clients, witnesses and the rest of the world outside our offices.  It led to the discovery of ESI becoming the rule rather than the exception in commercial and other types of litigation, where courts began to face the difficult problem of addressing the significant, and occasionally prohibitive, costs incurred in the process.

 
Many of us who litigate were nudged — or dragged — into the electronic age by the advent of e-discovery, with its unique protocols and practicalities. But some litigators have managed to maintain “low tech” practices, remaining blissfully ignorant of Zubulake and its progeny.  And a good number of lawyers who do not litigate still do not believe they need to keep up with the latest technological advances necessary not only to facilitate their practices but secure their data.  Yet we all represent clients with whom we communicate — clients with secrets and confidences that we are ethically and legally bound to protect, and all of whom — like all of us, are vulnerable to hackers.  Three years ago, then Attorney General Eric Holder quoted a private security expert who said there were only “two categories” of companies affected by trade secret theft:  “those that know they’ve been compromised and those that don’t know yet.”  This growing danger inspired Congress’s nearly unanimous passage of the Defense of Trade Secrets Act earlier this year.  And it has inspired material changes to legal ethics rules, as well.  Every lawyer has a general duty to remain competent, and the question we all must answer is what constitutes competency in this digital age when safeguarding client information is more complicated than ever before?


The Comments to the Maryland Lawyers’ Rule of Professional Conduct describe our duty to protect client information (Rule 1.6) tell us that we must “act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the attorney or other persons who are participating in the representation of the client or who are subject to the attorney's supervision.” (Citations omitted; emphasis added).  Compliance requires “reasonable precautions to prevent the information from coming into the hands of unintended recipients.”  The Comments offer clarification that this duty “does not require that the attorney use special security measures if the method of communication affords a reasonable expectation of privacy.”  The Rules and Comments leave open just what “special circumstances”  may warrant greater precautions, but provide that “[f] actors to be considered in determining the reasonableness of the attorney's expectation of confidentiality[, which] include the sensitivity of the information and…extent to which the privacy of the communication is protected by law or by a confidentiality agreement.”  Not terribly helpful.


Our Rules acknowledge that taking basic electronic measures to protect information from disclosure is now basic to lawyer competency.  But some jurisdictions go farther.  The New York State Bar Association’s guidelines published last year conclude:  “A lawyer cannot be competent without a working knowledge of the benefits and risks associated with the use of social media.”  The bottom line is that we are on clear notice that we no longer have any choice but to keep up with the technology—whether or not we use it, or face the consequences.  But you don’t have to do it alone. We’ll be introducing cybersecurity and e-discovery experts at upcoming bar luncheons and an October 27, 2016 CLE seminar. Join us and be part of the steamroller, rather than part of the road beneath it.

Lauri Cleary