found the Model Rules to be largely ade-quate.
However, because of the complex-ity of the use of these new technologiesthe ABA commission recommends ampli-fying Comment 6 of its Model Rule 1.1regarding attorney competence.
Currently, Model Rule 1.1 reads:
A lawyer shall provide competent repre-sentation to a client. Competent repre-sentation requires the legal knowledge,skill, thoroughness and preparation rea-sonably necessary for the representation.
The ABA commission proposes toadd an explicit duty of technologicalcompetence. The amended Comment 6would provide:
To maintain the requisite knowledgeand skill, a lawyer should keep abreastof changes in the law and its practice,
including the benefits and risks associat-edwith technology
engage in con-tinuing study and education and complywith all continuing legal educationrequirements to which the lawyer is sub- ject. [proposed new text underscored]
The New Jersey version of RPC 1.1(Competence) is strangely spare. Itomits the entire text of the ABA ModelRule.
The ABA comments are not refer-enced or adopted in our rules. Our ruleprovides only:
A lawyer shall not:(a) Handle or neglect a matter entrust-ed to the lawyer in such mannerthat the lawyer’s conduct consti-tutes gross negligence.(b) Exhibit a pattern of negligence orneglect in the lawyer’s handling oflegal matters generally.
If the ABA’s elaboration—declaring aduty to “keep abreast of” technology’s“risks and benefits” gives youpause...well, it should. Practicing lawand representing clients is not a hobby,not just a matter of hanging out a shin-gle. Doing things ‘the old-fashionedway’ will not suffice. The old businessversus profession dichotomy is chang-ing form, and the realization of duties of competence and confidentiality isemerging as a central concern. It is 10p.m., do you know where your files are?Are they on some server maintained byGoogle, or Amazon, or perhaps only onyour laptop? If those are the only placeswhere they are located, you may haveplaced your trust in a form too fragile ortoo vulnerable to lose. To know what isreasonably required to meet the duty of safekeeping your client’s property andconfidences, you may need to knowmore, including that the server youhave entrusted is secure, is in goodmechanical condition, is independentlybacked up to a second secure location,and is protected against invasion.
The ABA proposal also includes anamendment to Model Rule 1.6 regard-ing confidentiality of information. TheABA commission proposed addition of Section (c):
A lawyer shall make reasonable effortsto prevent the inadvertent disclosureof, or unauthorized access to, informa-tion relating to the representation of aclient.
This amplification of the duty to actcompetently to preserve confidentialityproposes a flexible standard. Comment16 of Model Rule 1.6 now provides:
A lawyer must act competently to safe-guard information relating to the rep-resentation of a client against inadver-tent or unauthorized disclosure by thelawyer or other persons who are par-ticipating in the representation of theclient or who are subject to thelawyer’s supervision.
The commission’s proposed Com-ment 16 of Model Rule 1.6 provides newlanguage:
Factors to be considered in determiningthe reasonableness of the lawyer’sefforts include the sensitivity of theinformation, the likelihood of disclosureif additional safeguards are notemployed, and the cost of employingadditional safeguards. Whether a lawyermay be required to take additional stepsto safeguard a client’s information inorder to comply with other laws, such asstate and federal laws that govern dataprivacy or that impose notificationrequirements upon the loss of, or unau-thorized access to, electronic informa-tion, is beyond the scope of these Rules.
The identity, competence and viabilityof the storage system are all subjects aboutwhich a lawyer must be reasonablyinformed. The mention of state and feder-al privacy laws is an additional reminderthat the modern lawyer, the lawyer whoseworld is virtual, in whole or in part, mustbe a well-informed practitioner.Finally, the ABA proposal would amendModel Rule 4.4 regarding respect for rightsof third persons to make clear that theword “document” is inadequate to describethe matter we must safeguard. The propos-al would replace the word “document”with “information or material.”
Proposed Comment 2 of Model Rule4.4 provides, in part:
For purposes of this Rule, “informationor material” includes paper documents,email, and other forms of electronicallystored information, including electronicdocuments and the data contained inthose documents (commonly referredto as metadata
), that are subject tobeing read or put into readable form.Receipt of electronic information con-taining “metadata” does not, standingalone, create a duty under this Rule.
If you don’t know what “metadata” is