Virginia Lawyer

VaLawyer_Apr 2014

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Vol. 62 | April 2014 | VIRGINIA LAWYER 57 Technology and the Practice of Law www.vsb.org Along with technology's changes to the practice of law come new twists on attorney ethical obligations. Although there are many examples of these, such as the inadvertent disclosure of docu- ments, internet marketing, cloud com- puting, and virtual law offices, the first consideration should be the general duty of competence regarding the use of tech- nology in the practice of law. 1 While Virginia has not adopted any formal statement on the necessity of competence with technology, the American Bar Association did so with its August 2012 amendment to Comment 8 to Model Rule (MR) 1.1 on general 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 educa- tion and comply with all continuing legal education requirements to which the lawyer is subject." (emphasis added) The report accompanying the resolution for the amendment states: "[T]he proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer's general ethical duty to remain competent." This accompany- ing statement indicates the ABA's intent was not to add new obligations to attor- neys, but rather to at least bring technol- ogy into counsel's field of vision as they consider their ethical duty of competence. While Comment 8's addition to MR 1.1 is not new 2 , it bears repeating and is even more relevant today than when first enacted in 2012. Examples of how legal competence (or the lack thereof) has played out are illuminating. One earlier case is Munster v. Groce, 829 N.E.2d 52 (Ind. App. 2005) where a lawyer was chastised for his lack of use of technology in attempting service of process. The court declined to find that due diligence had been used to locate a non-resident defendant after the plain- tiff 's counsel had filed a "long arm" affi- davit stating that the defendant's address could not be found. The court, in find- ing that no real effort was made, noted "[i]n fact, we discovered, upon entering 'Joe Groce Indiana' into the Google search engine, an address for Groce that differed from either address used in this case, as well an apparent obituary for Groce's mother that listed numerous surviving relatives who might have known his whereabouts." Id. at 62. Another more recent case is Johnson v. McCullough, 306 S.W.3d 551, 559 (Mo. 2010, en banc). In Johnson the court allowed a new trial based on a juror's nondisclosure of his litigation history. It noted, however, that the plaintiff 's coun- sel discovered the information using Missouri's automated case record service after the trial. Acknowledging a lack of a Supreme Court rule governing this area, the court imposed an affirmative duty on attorneys to make online investiga- tion of potential juror's prior litigation history a key part of their jury selection process "in light of advances in technol- ogy allowing greater access to informa- tion." Id. at 558-559. Internet use in due diligence searches was also discussed in Griffin v. Maryland, 192 Md. App. 518 (2010). There, the court cited with approval a statement found in the bar president's law review article The Legal Implications of Social Networking 3 that it is a "matter of professional competence" that lawyers should investigate social networking sites. 4 Id. at 535. Attorneys are increasingly using the Internet in their legal practice, as evi- denced by an American Academy of Matrimonial Lawyers survey from 2010 that identified Facebook as the "unrivaled leader for online divorce evidence" with 66 percent citing it as a primary source. 5 It cannot be anything but more impor- tant in 2014. The purpose of this article is to bring further attention to the impor- tance technology plays in modern law practice. It is irresponsible, and perhaps unethical, to overlook the available tech- nological resources when representing your clients. Endnotes: 1 My thanks to James M. McCauley, ethics counsel for the Virginia State Bar in assisting with some of the source mater- ial for this article, which came from a CLE he and I prepared for the Norfolk Portsmouth Bar's Bench Bar Conference in April 2013. 2 In fact, Alan S. Goldberg wrote about this general topic for Virginia Lawyer in the October 2012 edition. 3 Sharon D. Nelson, et al., 22 Regent U.L.Rev. 1 (2009/2010) 4 This case also ruled on authentication of social media evidence, which was ulti- mately overturned, but the discussion of the obligation to review social media as part of due diligence was not challenged. 5 http://www.aaml.org/about-the -academy/press/press-releases /e-discovery/big-surge-social-network ing-evidence-says-survey- Kellam T. Parks is the managing member of the Law Office of Kellam T. Parks PLLC in Virginia Beach, which is a paperless, technologically- driven law practice. He is a member of the Technology and the Practice of Law Committee of the Virginia State Bar and focuses his practice on credit reporting, personal injury, and domes- tic relations matters. Are You Technologically Competent? by Kellam T. Parks April2014VL_vl0414 4/3/14 11:29 AM Page 57

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