Technology and the Attorney-Client Relationship:
Risks and Opportunities
Title of Presentation
Jay Glunt, Ogletree Deakins
Jennifer McDonough, Rex Energy
John Unice, Covestro LLC
Renee Mielnicki, East Coast Risk Management
General Topics to Frame Discussion
1.
2.
3.
4.
5.
Duty of Competence (ER 1.1)
Cybersecurity (ER 1.6)
Electronic Discovery (ER 1.1, 1.4, and 3.4)
Social Media Investigations (ER 4.1, 4.2, 4.3)
Leveraging New Methods of Collaboration
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Collaboration (Extranets)
Budgeting
Billing
The Evolution of Communication
1. Duty of Competence
ABA and PA Rule 1.1
A lawyer shall provide competent
representation to a client. Competent
representation requires the legal
knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation.
ABA and PA Rule1.1
Comment 8 - Maintaining Competence
To maintain the requisite knowledge and skill, a
lawyer should keep abreast of changes in the law
and its practice, including the benefits and risks
associated with relevant technology, engage in
continuing study and education and comply with
all continuing legal education requirements to
which the lawyer is subject.
PA Rules of Professional Conduct
“The Pennsylvania Rules of
Professional Conduct set out the
minimum standards for the practice
of law.”
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Disciplinary Board
An Evolving Obligation
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Continuing education and study
Skillsets need to evolve
Importance of technology in the
delivery of legal services
Methods for Developing Competency
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Determine the problems the
situation involves (key skill)
Training and study
Associate with someone else who
has “established competence”
I have a thesis.
2. Cybersecurity
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Safeguarding confidentiality
Privileged communications
Client documents and data
Rule 1.6
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Confidentiality of _______________
ABA Rule 1.6(c); PA 1.6(d)
The rule:
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.
PA ER1.6(d) – Two New Comments
“Acting Competently to Preserve
Confidentiality”
25. Not a violation if the attorney made
reasonable efforts.
26. Does the method of communication afford a
reasonable expectation of privacy?
Cybersecurity
Basic knowledge of cybersecurity is now essential in
maintaining competence.
 Password Protection
 Encryption
 Metadata
 Cloud Computing

Cloud Ethics Opinions
http://www.americanbar.org/groups/departments_offic
es/legal_technology_resources/resources/charts_fyis/cl
oud-ethics-chart.html
20 States with Cloud Ethics Opinions
2011 PA Ethics Opinion
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“May an attorney ethically store
confidential client material in ‘the
cloud’?”
Yes. If take reasonable care . . .
1.
2.
All materials remain confidential
Reasonable safeguards are employed to
prevent data breach
3. Electronic Discovery
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ER 1.1 – Competence
ER 1.4 – Communication
ER 3.4 – Access to evidence
ABA and PA Rule 1.4(a)
A lawyer shall:
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Reasonably consult with the client about
means/methods
Keep the client reasonably informed
about status
Promptly comply with reasonable
requests for information
ABA and PA Rule 3.4
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Duty of Fairness to our Adversary
The rule:
A lawyer shall not:
… unlawfully obstruct another party' s access
to evidence or unlawfully alter, destroy or
conceal a document or other material having
potential evidentiary value.
ER 3.4(a) Comment 1
The procedure of the adversary system
contemplates that the evidence in a case is to be
marshalled competitively by the contending
parties. Fair competition in the adversary system
is secured by prohibitions against destruction or
concealment of evidence, improperly influencing
witnesses, obstructive tactics in discovery
procedure, and the like.
ER 3.4(a) Comment 2
Documents and other items of evidence are often
essential to establish a claim or defense. Subject
to evidentiary privileges, the right of an opposing
party, including the government, to obtain
evidence through discovery or subpoena is an
important procedural right. The exercise of that
right can be frustrated if relevant material is
altered, concealed or destroyed. . . .
Case Study – 2009 Events

Massachusetts State Bar Disciplinary Action
 Attorney did not advise client of the significance of a court order
permitting opposing counsel to forensically examine a hard drive.
This violated ER 1.4 (communications).
 Attorney advised client to scrub certain files, which the attorney
deemed irrelevant to the litigation, before forensic review. This
constituted unlawful obstruction of another party’s access to
evidence, and violated ER 3.4(a) (access to evidence).
 Attorney attempted to handle a matter that was beyond the
attorney’s personal competence, without adequate research or
study, and without associating with or conferring with someone of
requisite competence. This violated ER 1.1 (competence).
What was the discipline?
Duty to Preserve
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Competency:
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Know when to preserve
Know what to preserve
Know how to preserve
Subpoenas
Corporation as plaintiff
4. Social Media Investigations
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Sometimes a “cursory internet
investigation” uncovers the truth
2014 PA Ethics Opinion
Primary sources:
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ER
ER
ER
ER
ER
1.1
3.4
4.1
4.2
4.3
(Competence)
(Fairness)
(Truthfulness)
(Communications)
(Unrepresented individuals)
Three Common Scenarios
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Permitted to connect with current
clients, former clients, prospective
clients
No contact with a person known to be
represented by counsel about that
matter (ER 4.2)
Access to public information is always
permitted (maintain confidentiality)
Leveraging Innovation
1. How can we use technology to
improve attorney-client
communications, particularly about
status of pending matters?
Leveraging Innovation
2. How can we use technology to
improve scoping and budgeting in a
collaborative fashion at the beginning
of a matter, and maintain stickiness
against the budget over time?
Leveraging Innovation
3. How can inside and outside
counsel use technology to increase
their efficiency – completing matters
faster and at less overall cost?