Washington Lawyer - November 2018 - 42

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ASK THE ETHICS EXPERTS

TECHNOLOGY:
Thou Shalt Be Competent!

By Saul Jay Singer

Q
A

I am a civil practitioner in the District of Columbia who, after representing
clients across a broad spectrum of cases for more than 30 years, was
confident that I could handle any litigation that came my way. However,
I was recently retained by a client in what initially appeared to be a straightforward case, but important issues have arisen involving complex computer
data transmission and security questions that are well beyond my technological expertise. What are my options?
Your options are binary: You become competent - and quickly - or you
withdraw from the representation.

It is no mere coincidence that the first D.C. Rule addresses a lawyer's
duty of competence. Rule 1.1 provides that "a lawyer shall provide
competent representation to a client" and that "competent representation
requires the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation."
In Legal Ethics Opinion 371 (Social Media II), the Legal Ethics Committee underscored that "[b]ecause
of society's embrace of technology, a lawyer's ignorance or disregard of it . . . presents a risk of ethical
misconduct."1 Indeed, as early as 2007, in Opinion 341 (Review and Use of Metadata in Electronic
Documents), the Committee discussed obligations owed by an attorney who transmits data electronically, concluding that "lawyers must either acquire sufficient understanding of the software that they
use or ensure that their office employs safeguards to minimize the risk of inadvertent disclosures."2 This
language, which suggests a unity of the duties of competence and confidentiality, highlights that a
lawyer's duty of competence necessarily includes technological competence, at least insofar as necessary to protect client confidences and secrets, and there is no question that this duty extends broadly
to technological competence reasonably necessary for the representation.
There are any number of means available to you to gain the requisite competence in your case,
including retaining a technological expert of established proficiency in the field in question;
engaging capable co-counsel with experience in the technological area that you lack; and engaging
in necessary research and study, including taking relevant CLE courses here at the D.C. Bar. You
must protect your client's interests and, if you are unable to develop the requisite competence,
you must: (1) advise the client to seek competent representation; and (2) withdraw (in accordance
with Rule 1.16).
NOTES
1 dcbar.org/bar-resources/legal-ethics/opinions/Ethics-Opinion-371.cfm.
2 dcbar.org/bar-resources/legal-ethics/opinions/opinion341.cfm.

https://osioffices.com (202) 600-7777
manager@osioffices.com

D.C. Bar Legal Ethics counsel Hope C. Todd, Saul Jay Singer, and Erika Stillabower are available
for inquiries at ethics@dcbar.org.

http://www.dcbar.org/bar-resources/legal-ethics/opinions/Ethics-Opinion-371.cfm http://www.dcbar.org/bar-resources/legal-ethics/opinions/opinion341.cfm https://www.osioffices.com

Washington Lawyer - November 2018

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