A committee tasked with reviewing the District of Columbia Rules of Professional Conduct has recommended adoption of revisions designed to underscore that a lawyer’s duty to provide competent representation extends to use of technology.
In addition, the committee has recommended changes to make clear that a lawyer’s duty to protect the confidentiality of client information includes the responsibility to protect against unauthorized access, such as through hacking.
Related: States That Have Adopted the Duty of Technology Competence.
The recommendations from the Rules of Professional Conduct Review Committee of the District of Columbia Bar follow from the committee’s review of the recommendations of the ABA Ethics 20/20 Commission, which was charged with reviewing the ABA Model Rules of Professional Conduct in the context of advances in technology and globalization.
The work of the 20/20 Commission led to a number of changes in the Model Rules, including the revision of Model Rule 1.1, Comment 8, which provided that a lawyer’s obligation to remain competent encompassed “the benefits and risks associated with relevant technology.”
The D.C. committee, in its report, recommended against adopting the language of Comment 8. Because D.C.’s Rule 1.1(a) already required a lawyer to have the “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation,” the committee was initially concerned about selectively listing a specific skill such as technology.
Ultimately, however, the committee decided to address the issue in a comment to Rule 1.1 — but not Comment 8 as in the Model Rules.
The Committee recommends that adding the words “procedures, and technology” to existing D.C. Rule 1.1, Comment [5] would sufficiently address competence in keeping abreast of technological changes, i.e., cloud computing, as well as the requirement of certain courts to use technologies such as e-discovery and e-filing.
The specific amendment proposed by the committee reads as
