You’ve probably seen some technical pitfalls. Maybe a lawyer unwittingly hit the “reply all” button. Or perhaps a lawyer failed to realize that his electronic redaction of privileged communication could be undone by a simple “copy and paste.”
Others have noticed, too. In 2012, the American Bar Association amended Model Rule of Professional Conduct 1.1 to include a technical-competence requirement that lawyers must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” In making this change, the ABA put continuing learning of relevant technology on par with continuing study and education of substantive changes in the law. While the ABA’s Model Rules function merely as a suggestion to state bar associations, at least 35 states have followed suit and amended their ethical rules to require that lawyers maintain technical competency.
Michigan isn’t far behind. Effective January 1, 2020, an amendment to Michigan Rule of Professional Conduct 1.1 will require a lawyer to maintain “knowledge and skills regarding developing technology that are reasonably necessary to provide competent representation for the client in a particular matter.” And an amendment to Michigan Rule of Professional Conduct 1.6 will require a lawyer to use this competency “when transmitting a communication that contains confidential and/or privilege information relating to the representation of a client” to ensure that the information “will not be revealed to unintended third parties.”
What this Means for Attorneys
What a Michigan lawyer must do to maintain technical competency is unclear, especially considering the State Bar of Michigan doesn’t require formal continuing legal education. But thankfully, the real world provides examples of what not to do. In September, a federal magistrate judge ordered Jones Day, an Am Law 100 firm, and local counsel to show cause and explain why they failed to properly redact confidential grand-jury information related to a criminal case involving their pharmaceutical-company client. Instead of permanently redacting the PDF documents, the lawyers merely highlighted the text in black, allowing the text to be read if copied and pasted into a new document. This follows other similar high-profile redaction errors, such as those made by Paul Manafort’s lawyers earlier this year.
So will adding a requirement to maintain technical competency end the accidental reply-all e-mail? Probably not. But some basic knowledge, such as how to properly redact PDF documents, may save you from a show-cause order, a lost client, and a possible malpractice suit.