ABA Model Rules Revisions Include Technology – What Attorneys Must Know
Last August, the American Bar Association (ABA) revised the Model Rules to account for the rising use of technology in legal practice today. As a technology-based immigration practice blog, we couldn’t help to but take a closer look to see how some of these revisions affect the practice of immigration law today.
Model Rule 1.1: Competence
As always, attorneys are always reminded that “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Read on to see how the ABA defines “competence.”
Model Rule 1.4: Communication
According to Rule 1.1 Note 8, part of an attorney’s duty to maintain competence in his or her field of expertise is to ensure he or she stays updated on the changes in immigration law and how immigration law is practiced. This includes, according to the ABA, “the benefits and risks associated with relevant technology.” How are you staying up to date on the benefits and risks of the use of relevant technology in your practice? Did you know that we’ve actually written about many of the benefits and risks associated with the use of technology in the practice of immigration law? You can read some of our past articles here:• Why Cyberthieves Find Small Firms Attractive • Can You Withstand a Breach in Cyber Security? • Is it Safe to Email Your Clients Sensitive Data? • Data Security in Immigration Case Management: Facts & My\ths • Beyond Email: Ensuring the Privacy & Security of Client Communications
Model Rule 1.6: Confidentiality of Information
(a) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
In recognition of the growing threat of unauthorized access to client data, the ABA provides in Rule 1.6 Note 18 a safe harbor so long as the attorney “made reasonable efforts to prevent the access or disclosure.” Factors that determine the reasonableness of attorney effort include:• The sensitivity of the information • Likelihood of disclosure if additional safeguards are not employed; • Cost of employing additional safeguards • Difficulty of implementing safeguards • Extent to which the safeguards adversely affect the lawyer’s ability to represent the client
The Reasonable Standard can certainly vary from state to state and region to region. Because immigration is such a niche area of practice, it’s important for practitioners to consider the breadth of technology available as it relates to this area of practice. With the wider availability of technology comes a higher standard for practitioners to conduct due diligence when adopting any technology in this field.
Model Rule 4.4: Respect for Rights of Third Parties
(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.
Rule 4.4 is finally adjusted to include “electronically stored information” in recognition that much of today’s legal practice involves sending documentation via electronic means. The rule continues to be though, that any client information inadvertently sent should be promptly deleted or returned to the sender. Rule 5.3 Responsibilities Regarding Nonlawyer Assistance We’ve talked a lot about the need for immigration practitioners to carefully vet their software to ensure it satisfies a practitioner’s professional responsibilities. The ABA seems to agree in its recent revision. When using nonlawyer assistance, newly added the Rule 5.3 Note 3 states the following:
 A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a) (unauthorized practice of law). When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer. (Emphasis added.)
The questions, therefore, remain. How secure is the software you’re using? What type of protections does it provide your practice? What level of risks does your practice have with your technology? These are only a few of the questions you should consider when evaluating immigration technology. As the immigration software industry evolves, how are you staying up to date? Are you using the most cutting edge technology available?
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