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

2. 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.

3. 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 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

4. 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 F Storing client information in the cloud
Florida has approved mandatory CLE classes for lawyers
3 hours every 3 years

5. 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

6. 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 )
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

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

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

9. 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?

10. 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)

11. 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 was part of a widespread breach -

12. Computer System Security Cont

13. Computer System Security Cont

14. 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 /4

15. 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

16. 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

17. 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

18. 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

19. 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
Fantasy SCOTUS
Holograms and Virtual Reality
IBM Watson and/or Artificial Intelligence may replace some attorneys