Updating the Rules to Reflect Changes in Technology

By Gina L. Hendryx

Lawyers have an obligation to provide competent and diligent representation to their clients. This means the lawyer must apply the “legal knowledge, skill, thoroughness, and preparation reasonable necessary for the representation.”1 Furthermore, “a lawyer shall act with reasonable diligence and promptness in representing a client.”2

Lawyers have historically learned that when faced with a novel area of law or a representation involving unfamiliar legal issues, we can satisfy the competency requirement through necessary study or by associating with competent counsel. To diligently represent a client, the lawyer should fulfill obligations to a client within a reasonable time and not neglect the matter or the client. A lawyer’s failure to meet deadlines is a classic example of a violation of Rule 1.3.

“Competent” representation has long been associated with familiarity of substantive law and procedural rules. With the legal field im-plementing more technology resources and outsourcing more projects, the “competent” lawyer’s responsibilities will expand beyond principles of law and rules of the court. The American Bar Association has adopted several amendments to the Model Rules of Professional Conduct (Model Rules) which reflect the wide range of technologies used or likely to be used in the near future by lawyers. The OBA’s Rules of Professional Conduct Committee has studied these changes and made recommendations to be presented to the OBA Board of Governors regarding adoption of same. Ultimately, any changes to the Oklahoma Rules of Professional Conduct (Oklahoma Rules) will be determined by the Oklahoma Supreme Court and codified at 12 O.S. Ch.1, App. 3-A.

The ABA amendments begin with Rule 1.0, Terminology. Section (n) defines the word “writing” as it is used in the Model Rules. Writing has been defined to include email. It was determined that the definition of “writing” should be updated in light of changes in technology. The ABA commission charged with studying these rules determined that the current definition was not sufficiently expansive given the wide range of methods that lawyers use when memorializing an agreement. Therefore, “email” was replaced with the words “electronic communications” to be included in the definition of a “writing.” The Oklahoma committee has recommended adoption of this change to Rule 1.0(n).

Lawyers are charged with the responsibility to keep abreast of changes in the law and its practice. The ABA amendments now include staying current on the “benefits and risk associated with relevant technology.” The Oklahoma committee has recommended adoption of this language to Comment [6] of Rule 1.1. To maintain competence in the practice, lawyers are encouraged to engage in continued study and education. Maintaining competence may very well require knowledge of e-discovery, online filing, electronic document retention policies, etc. If you intend to practice in areas where there are potential technology issues, you must understand some. Failure to do so may be a violation of your duty to competently represent your client.

Communicating with your clients has drastically changed since the days of rotary dial telephones and carbon paper copied letters. Rule 1.4 of both the Model Rules and the Oklahoma Rules states that lawyer shall keep the client reasonably informed about the status of the matter and promptly comply with reasonable requests for information. Comment [4] to this rule states that “[c]lient telephone calls should be promptly returned or acknowledged.” The ABA commission replaced that admonition with the following language, “A lawyer should promptly respond to or acknowledge client communications.” The new language more accurately describes a lawyer’s obligations in light of the increasing number of ways in which clients use technology to communicate with lawyers. The Oklahoma committee has recommended adoption of this language to Comment [4] of Oklahoma Rule 1.4.

Technology has increased the risk that confidential information may be inadvertently disclosed. Model Rule and Oklahoma Rule 4.4 (b) provide that should a lawyer receive documents that they know or reasonably should know were sent inadvertently, they must notify the sender. The ABA commission determined that the word “documents” was insufficient to cover the various kinds of information that may be inadvertently divulged. Confidential information is stored in emails, on flash drives and embedded in electronic documents. The amendment to Rule 4.4 (b) makes it clear that the rule extends to all documents or electronically stored information. The Oklahoma committee has recommended adoption of the amendments to Rule 4.4.

Recommended changes will be vetted by the OBA’s Board of Governors and, if accepted by that board, referred to the Oklahoma Supreme Court for consideration. If and when any amendments are approved by the court, OBA members will be given notice via traditional means of delivery, i.e. the Oklahoma Bar Journal and through electronic technology. The OBA recognizes its responsibility to provide current, up-to-date information to its members and embraces technology as one of the many means of keeping our members current on changes to rules of practice.

1. Oklahoma Rule of Professional Conduct 1.1.
2. Oklahoma Rule of Professional Conduct 1.3.



ABOUT THE AUTHOR


Gina Hendryx is the general counsel for the Oklahoma Bar Association. A licensed attorney for 30 years, she received her J.D. and B.S. degrees from OCU. She supervises a staff of 15 and serves as the association’s chief disciplinary counsel. She works with the Professional Re-sponsibility Commission and serves as a liaison to the OBA Board of Governors, OBA committees, the courts, and other local and national entities concerning lawyer ethics issues.

Originally published in the Oklahoma Bar Journal, OBJ 85 2257 (Nov. 1, 2014)


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