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ABA Model Rules of Professional Conduct: The Need for Emphasis on Technical Diligence

The rapidly evolving landscape of technology and cyber threats presents new challenges for legal professionals in safeguarding client information and maintaining ethical standards. As the legal profession grapples with these complexities, it becomes increasingly clear that the American Bar Association (ABA) Model Rules of Professional Conduct should be amended to reflect the heightened responsibilities and considerations demanded by the digital age. In this article, we delve into key provisions, opinions, and developments that underscore the urgency of amending the ABA Model Rules, ensuring that legal practitioners can navigate the digital frontier while upholding their ethical obligations.

The Technology Provision in Comment 8 to Rule 1.1

The ABA Model Rules have long been a cornerstone of ethical guidance for attorneys. Rule 1.1, emphasizing competence, states that a lawyer should provide competent representation, requiring the legal knowledge, skill, thoroughness, and preparation necessary for the representation. Comment 8 to this rule, introduced in 2012, acknowledges that a lawyer's duty of competence extends to technology.

Incorporating technology competence into the Model Rules marked a significant step towards addressing the digital transformation in the legal profession. However, given the rapid pace of technological advancement, it is imperative to revisit and enhance this provision to better address emerging challenges such as data breaches, cybersecurity, and digital communication.

Competence no longer suffices. Today’s digital age requires diligence.

Heightened Responsibility in ABA Opinions 477R and 498

ABA Opinion 477R, issued in 2017, established that attorneys must exercise caution when using email to transmit sensitive and confidential information. The opinion highlighted the importance of taking reasonable measures to protect client communications from the risks associated with electronic transmission.

Similarly, ABA Opinion 498, released in 2021, advised lawyers that the ABA Model Rules of Professional Conduct permit virtual practice but require consideration of ethical duties regarding competence, diligence, and communication. Opinion 498 advised, “lawyers practicing virtually need to assess whether their technology, other assistance, and work environment are consistent with their ethical obligations.”  Opinion 498 provided guidance when employing certain technologies and platforms, particularly those that may be employed in a virtual work setting with respect to hardware systems, cloud services, virtual document and data exchange platforms, and virtual assistants. Opinion 498 reinforced the lawyer's ethical obligation to communicate effectively with clients regarding the technological safeguards in place.

While these opinions represent significant strides in acknowledging the implications of technology on legal practice, they also underscore the need for more comprehensive guidelines that encompass a broader spectrum of technological challenges.

Because neither email nor remote litigation is going away.

Cyber Breaches are Roiling Law Firms

In the last year, cyber breaches targeting law firms have become alarmingly commonplace. The wealth of sensitive information held by legal practitioners, coupled with the increasing sophistication of cyber attackers, has turned law firms into prime targets for data breaches. The fallout from such incidents is multifaceted, often resulting in compromised client information, reputational damage, and potential legal liabilities.

These breaches highlight the urgent necessity for attorneys to remain vigilant in protecting their clients' data. Amending the ABA Model Rules to explicitly address cybersecurity measures is crucial to emphasize the importance of diligence in cyber security measures. Furthermore, it will prompt firms to invest in the tools and guidance required to mitigate cyber risks effectively and will empower legal operations professionals to insist on robust cyber security measures.

A Lawyer’s Heightened Duty

The Preamble of the Model Rules makes it clear that the rules exist because lawyers have a “special responsibility for the quality of justice.” Such responsibility warrants heightened duties. The Securities and Exchange Commission (“SEC”) has recently finalized cyber security disclosure requirements for public companies. The financial sector has already recognized the gravity of cybersecurity risks, leading regulatory bodies such as the SEC to implement cybersecurity disclosure requirements for public companies. Additionally, the Biden Administration recently released its National Cybersecurity Strategy which sets out five pillars of focus for the administration, specifically: defending key infrastructure, disrupting, and dismantling threat actors, shaping market forces and driving security and resilience, investing in a resilient future, and forging international partnerships to pursue shared goals.

These new regulations acknowledge that cybersecurity risks are not only technical concerns but also encompass legal, financial, and reputational implications. This trend underscores the need for the legal profession to adopt a similar approach, with amended Model Rules that establish a comprehensive framework for addressing cybersecurity risks and obligations.

Clients Should Be Confident Their Attorneys Know Cyber Security

Central to the attorney-client relationship is a foundation of trust and confidence. Clients must have peace of mind that their attorneys possess the expertise to safeguard their sensitive information in an increasingly digital world. Amending the ABA Model Rules to incorporate detailed cybersecurity provisions would send a powerful message to clients, assuring them that their legal representatives are equipped with the knowledge and strategies necessary to protect their interests.

It’s clear that cyber security is of utmost importance to the ABA. In 2012, they formed the ABA Cybersecurity Legal Task Force. And past ABA President Laurel Bellows has said, "We live In a world where our national security is threatened by cyberterrorists, and where private enterprise is forced to respond to cyber-theft of intellectual property on a daily basis. The ABA Cybersecurity Legal Task Force is examining risks posed by criminals, terrorists and nations that seek to steal personal and financial information, disrupt critical infrastructure, and wage cyberwar.  When our national security and economy are threatened, lawyers will not stand on the sidelines." The ABA is perpetually evaluating and reevaluating the digital challenges facing the legal profession as evinced by recently published opinions. The convergence of technology, cybersecurity risks, and ethical obligations demands a proactive and strategic response. By distilling Comment 8 to Rule 1.1, ABA Opinion 477R and Opinion 498, and codifying that distillation, the ABA can equip legal professionals with the ethical framework needed to navigate the complexities of the digital age. This proactive approach will not only fortify the ethical foundation of the legal profession but also reassure clients that their attorneys possess the expertise to safeguard their interests in an increasingly interconnected and vulnerable world.