Pennsylvania CLE Board Adds Technology Ethics Category

In October 2014, the Pennsylvania CLE Board Website added a new category for lawyer CLE programs called Ethics–Technology (new ETH10).

Attorney Shannon Brown requested the additional category in light of the Pennsylvania Supreme Court’s changes to the Pennsylvania Rules of Professional Conduct effective November 2013. The 2013 updates to the Pennsylvania Rules of Professional Conduct specifically require Pennsylvania  lawyers to possess personal knowledge of  the “benefits and risks associated with relevant technology.” Thus, technology stands as an ethics issue for lawyers.

The same changes also notably affect Rules Rule 5.1 (Responsibilities of Partners, Managers and Supervisory Lawyers) and 5.3 (Responsibilities Regarding Nonlawyer Assistance). Lawyers can no longer merely “delegate” technology issues to non-lawyer staff or to outsourcing providers—see Comments 1-5 to Rule 1.1 which indicate that the lawyer, if faced with a competence issue, must associate with a lawyer with the requisite knowledge. Note that the issue of lawyer competence and experts now clearly diverge although many lawyers confuse the two. Technology is a lawyer competence duty and thus cannot be delegated as attorneys do when acquiring simply advice from experts on specific, non-lawyer, issues.

Ethics programs will need to increasingly address issues such as data breach, information security, risks of  cloud computing, encryption, information security law, information technology law (as distinct from “intellectual property,” eDiscovery, technology assisted review (TAR), and security audits.