An Attorney’s duty of Technical Competence Bill Ramsey Neal & Harwell

ABA Model Rule 1.1 August 2012 Amendments Comment [6] of Model Rule 1.1 was changed to Comment [8] and amended to add the phrase beginning with including: To maintain the requisite knowledge and skill, a lawyer should keep abreast of 93 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.

ABA Model Rule 1.6 August 2012 Amendments New paragraph (c): “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Comments [18 and 19], include factors to be considered in determining the reasonableness of a lawyer’s efforts to prevent disclosure or access. Comment [19] has the following new language: “Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy [E.g. HIPAA, etc], is beyond the scope of these rules.” [There is similar language in Comment 18] Factors to watch for: Avoiding a lawyer’s sending an email to the wrong person Avoiding someone’s “hacking” into a law firm’s network Staff’s posting client information on the internet Not every disclosure is a violation, but reasonable precautions are required

States’ Adoption of Changes August 2012 Amendments 25 States have Adopted so far (10 more since last year) Most of the remaining States are studying California imposes the duty, but has not adopted ABA Rules New Hampshire recognizes the duty Tennessee -- 2015-F-159 - Storing client information in the cloud Florida has approved mandatory CLE classes for lawyers 3 hours every 3 years

Practically, What Does “Technical Competence” Mean Technical Computer Skills Computer System Security Cloud computing Digital Forensics/eDiscovery Social Media Keeping up-to-date on technology trends and Anticipating the future

Technical Computer Skills It does not mean that you are the best with word processing It does mean that you know how to use (and not abuse email) It does not mean that you can operate e-discovery or trial presentation software itself It does mean that you know what e-discovery or trial presentation software can do

Technical Computer Skills Cont. Civil Litigators eDiscovery Digital Forensics Legal Research Transactional Lawyers Spreadsheets Document Versioning All Lawyers Security & Privacy

Computer System Security 1 in 4 firms with over 100 attorneys have experienced a breach Increased Targeting of Professional Services (Law Firms, CPAs, Etc) 2012 - 10 percent of firms experienced a breach 2014 - 15 percent of firms experienced a breach

Computer System Security Cont. Antivirus/Firewall is not enough Technical and Policy based controls are necessary Threats are advanced Third party patch management (adobe, java, etc) Encryption of portable devices and media minimal effort large ROI Mobile device management Asset information How can you protect what you don’t know is out there?

Computer System Security Cont. Password Fundamentals Don’t mix personal and professional passwords. Take advantage of the secure password generation utility. Use unique passwords for each account. For extra security integrate dual factor authentication with your password manager(we utilize DuoSecurity). Password managers encrypt all stored passwords with your master key. Use a secure master key (>12 characters)

Computer System Security Cont. Password Fundamentals Utilizing the password save feature in Internet Explorer and Google Chrome exposes your passwords in plaintext.    Prevents one password from accessing all of your accounts. Check to see if your email was part of a widespread breach - https://haveibeenpwned.com/

Computer System Security Cont

Computer System Security Cont

The “Cloud” The internet has changed the practice of law in many ways, including how data is stored and accessed. “Cloud computing” can be an economical and efficient way to store and use data. However, a lawyer who uses cloud computing must be aware of its effect on the lawyer’s professional responsibilities. The NHBA Ethics Committee adopts the consensus among states that a lawyer may use cloud computing consistent with his or her ethical obligations, as long as the lawyer takes reasonable steps to ensure that sensitive client information remains confidential. New Hampshire Advisory Op. 2012-13/4

The “Cloud” Standardize firm wide on a platform and protection of data Know what types of data can be put into a public cloud Not all providers are equal Where is my data stored? Data ownership Indexing of content How to protect confidential information Use of encryption Prevent sharing

eDiscovery 100x growth of data between 2016-2020 Portable Devices Impact of Internet of Things Portable Devices 6.4 billion internet connected devices by end of 2016 5.5 million every day Up from 5 billion last year Soon, “things” will place more information on the internet than people will

Digital Forensics Mobile Devices Collections can be complicated Parsing of data not keeping up with applications Social Media Constant changes Preservation Issues People overshare valuable data Internet of Things (IoT) Sensory data, Geo-tagging, voluminous data Targeted Collections

Social Media Have at least basic familiarity Source of evidence Witnesses Clients Opposing parties Experts Juror? Ethical Issues abound Contact with Represented Persons Client reviews Connecting with Judges

The Future… In the next 10 years or less, there will be dramatic changes in technology that will change the practice of law. You need to be ready. Some clients will require outside counsel to pass technology “exams” “Legal Tech Audit” ( former Kia General Counsel, Casy Flaherty) Clients do and will audit your firm’s information security Shrinking computer size Internet of Things Autonomous Cars Electronic financial transactions Alternatives to email Fantasy SCOTUS Holograms and Virtual Reality IBM Watson and/or Artificial Intelligence may replace some attorneys