Technology is a critical part of litigation today. It is difficult to contemplate modern-day communication without texts, e-mails and social media postings. This continuing upsurge in electronic communication has changed the way our clients do business and therefore directly altered discovery in litigation. As a result, many lawyers have adopted a new way of practicing law and engaging in discovery. To better service their clients, these practitioners have embraced technology. Others, however, continue to resist it. But is such resistance ethical in light of a lawyer's obligation to competently represent her clients?

Lawyers are ethically bound to competently represent their clients (see for example, the American Bar Association's (ABA) Model Rules of Prof'l Conduct R. 1.1 (which was adopted by most states (all but California) and Washington, DC) and Cal. Rules of Prof'l Conduct R. 3-110).

Competent representation includes competence with technology. Comment 8 to ABA Model Rule 1.1 was amended in 2012 to state specifically that a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. Some states already have adopted this guidance, including Delaware (Del. Lawyers' Rules of Prof'l Conduct R. 1.1 cmt. 8 (amended Jan. 15, 2013)), Pennsylvania (Pa. Rules of Prof'l Conduct R. 1.1 cmt. 8) and Kansas (Kan. Rules of Prof'l Conduct R. 1.1 cmt. 8).

Similarly, earlier this year, California's State Bar Standing Committee on Professional Responsibility and Conduct issued for comment a proposed formal opinion on an attorney's ethical duties in the handling of discovery of electronically stored information (ESI). The proposed opinion imposes on attorneys an obligation to have, at a minimum, a basic understanding of e-discovery, and possibly a higher level of technological knowledge, depending on the case. Attorneys lacking the required e-discovery competence on a particular case can either:

(Cal. State Bar, Proposed Formal Op. Interim No. 11-0004.)

Practical Law has resources to help lawyers improve and enhance their knowledge of e-discovery and technology. For example, the following resources arm lawyers with a basic knowledge of relevant technology to have meaningful discussions about e-discovery with clients, vendors and opposing counsel:

For more information on a practitioner's obligation to be technologically proficient, see Article, Litigation, Technology & Ethics: Changing Expectations. For more information on e-discovery and technology, see E-Discovery Toolkit.