2020 SC BAR CONVENTION Technology Committee “Navigating Legal Technology Ethically in 2020 and Beyond” Thursday, January 23 SC Supreme Court Commission on CLE Course No. 200513 2020 SC BAR CONVENTION Technology Committee Thursday, January 23 What Does Ethical Competence Mean in the Digital Era? Sharon D. Nelson Esq. John W. Simek, CISSP, EnEC, MCSE+I, CNE South Carolina Bar What Does Ethical Competence Mean in the Digital Era? January 23, 2020 Presenters: Sharon D. Nelson President, Sensei Enterprises Inc. [email protected] John W. Simek Vice President, Sensei Enterprises Inc. [email protected] 703-359-0700 https://senseient.com Court News ... 2019-11-27-02 The Supreme Court of South Carolina Re: Amendments to Rules 1.0, 1.1, and 1.6, Rules of Professional Conduct, Rule 407, South Carolina Appellate Court Rules Appellate Case No. 2019-000318 ORDER The South Carolina Bar has filed a petition asking this Court to amend Rules 1.0, 1.1, and 1.6 of the Rules of Professional Conduct, which are contained in Rule 407 of the South Carolina Appellate Court Rules. The Bar proposes adopting modified versions of amendments the American Bar Association (ABA) made to the ABA Model Rules of Professional Conduct in 2012 as part of the ABA's Ethics 20/20 initiative. The amendments to these Model Rules are meant to provide guidance to lawyers about the benefits and risks of using certain technologies, with a particular emphasis on the protection of clients' confidential information. After reviewing the Bar's petition and proposed amendments, as well as the ABA's amendments to these Model Rules, we elect to adopt the ABA's version of the amendments to Rule 1.0 and Rule 1.6, with minor changes to reflect the differences between the ABA Model Rules and the Rules of Professional Conduct adopted by this Court. We adopt a modified version of the Bar's proposed amendment to Comment 6 to Rule 1.1, and decline to adopt the Bar's proposed new Comment 7. Pursuant to Article V, Section 4 of the South Carolina Constitution, we amend Rules 1.0, 1.1, and 1.6 of the Rules of Professional Conduct, which are contained in Rule 407 of the South Carolina Appellate Court Rules, as set forth in the attachment to this Order. The amendments are effective immediately. s/Donald W. Beatty C.J. s/John W. Kittredge J. s/Kaye G. Hearn J. s/John Cannon Few J. s/George C. James, Jr. J. Columbia, South Carolina November 27, 2019 Rule 1.0(r), RPC, Rule 407, SCACR, is amended to provide: (r) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording, and electronic communications. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing. Comment 6 to Rule 1.1, RPC, Rule 407, SCACR, is amended to provide: [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including a reasonable understanding of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. Rule 1.6, RPC, Rule 407, SCACR, is amended to add new paragraph (c), which provides: (c) 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. Comment 20 to Rule 1.6, RPC, Rule 407, SCACR, is amended to provide: [20] Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer's efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer's ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client's information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. Comment 21 to Rule 1.6, RPC, Rule 407, SCACR, is amended to add the following sentence to the end of the Comment: Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules. How Lawyers Can Manage Their Technology Well by Sharon D. Nelson and John W. Simek © 2015 Sensei Enterprises, Inc. Can lawyers actually manage their technology (instead of it managing them)? Buying, implementing, replacing and securing technology are huge challenges – especially when you have billable work to do. And yet, technology is the most important part of a law firm today – at least after the carbon-based units! What are lawyers doing wrong? Rare is the solo/small firm which does an annual review of its technology. Firms tend not to plan, but rather to buy technology when a new need arises, when a partner demands the latest cool tech toy, or when something breaks. In our world, we call that the “Break/Fix” method of (not) managing technology. For the most part, lawyers don’t even have a list of all the equipment they own. They don’t know when it was placed in service - they may think about this briefly in terms of depreciating capital expenses at tax time, but not in terms of planning to replace technology. And, God help them, they often listen to a vendor they just happen to run into at a conference or someone who persistently stalks them with a deal that sounds too good to be true (hint: it is). A lot of decisions are made quickly because lawyers are in such a hurry to get back to practicing law. Understandable, but it often results in poor decisions being made. Getting yourself organized First, let’s stress an important point: Technology has a life span. For most computers, laptops, tablets, smartphones, etc., that tends to be about three years. That does NOT mean that the devices will cease to work. It just means that we tend to replace them that often because performance will deteriorate as we ask more of our devices (specifically when software asks more) and because we tend to want/need new features in our technology. You may be able to stretch the lifespan of some equipment – servers, printers, multi-function machines, etc. - to five years. Second, let’s acknowledge that lawyers are terrible about budgeting. Make yourself a list of all the equipment you own, when it was placed in service and who has the devices (this will need updating each year). For the most part, experts recommend that you plan on refreshing your technology, with the exceptions mentioned above, every three years. That means you need to budget for replacing 1/3 of your technology each year. At the outside, budget for replacing ¼ of your technology each year. The ultimate and often seen nightmare is a “big bang” purchase of almost all the technology because everything is so out-of-date. This is a major hit to the law firm wallet. It is far less painful to do this over time. And don’t be cheap in your buying decision because you’ll regret it – lawyers need “business class” machines which can handle a lot of software being used at once. As we have wryly observed, lawyers have zero patience with slow computing. Hopefully, you have a relationship with a trusted IT consultant. Listen to the consultant when it’s time to purchase. Don’t just willy nilly buy things because you think you’ve found a great deal or because a vendor promises you the moon for a song. Your colleagues can be a good source of validation as well. But know what you don’t know and find someone who can lend a hand. Remember that Model Rule of Professional Conduct 1.1 now includes being competent with technology. If you are not, find someone who is (and if you find competence – hold it close, because it is darn rare). Kick the Tires! It is rare to find software that doesn’t come with a 30-day free trial, so for heaven’s sake kick the tires first and see if the software will work for you.