Do you practice in one of the green states on this map?
In 25 states, lawyers have an official duty of technology competence.
Competence is the very first duty stated in the Model Rules of
Professional Conduct. Comment 8 to Rule 1.1 states in part:
“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 associated with relevant technology...."
In the remaining states, lawyers' duties to their client may be
interpreted to require the exercise of due care in the use of
technology to safeguard your clients' interests.
If you fail to protect your clients' files and information with
adequate, current technology, ignorance of the risks posed by your old
systems does not excuse you.
Even without a paperless office, much of the communication and
documentation vital to client matters exists only in digital form, including
emails, electronic filings, photographs, videos and electronic
Protecting these materials vital to the representation of your clients
requires that your systems minimize or eliminate the large cross-
section of threats to digital materials.
In a recent case, the law firm of Odom & Barlow became liable for
$394,000 in attorneys fees as a result of the inadequacy of their
email and backup systems.
The court's opinion noted that the firm had rejected their IT
consultant's recommendation to get an online backup system.
Regular, automatic, offsite backup systems are widely recommended and
used by law firms, businesses and computer users generally. Do your backup systems provide the levels of redundancy, automation and
comprehensiveness that have now become the standard?