Formal Opinion 749

In February, the NY County Lawyers Association Professional Ethics Committee issued Formal Opinion 749, addressing “[a] lawyer’s ethical duty of technological competence with respect to the duty to protect a client’s confidential information from cybersecurity risk and handling e-discovery when representing clients in a litigation or government investigation.” The committee summarized its detailed analysis as follows:

DIGEST: A lawyer’s ethical duty of competence extends to the manner in which he provides legal services to the client as well as the lawyer’s substantive knowledge of the pertinent areas of law. The duty of competence expands as technological developments become integrated into the practice of law. Lawyers should be aware of the disclosure risks associated with the transmission of client confidential information by electronic means, and should possess the technological knowledge necessary to exercise reasonable care with respect to maintaining client confidentiality and fulfilling e-discovery demands. Further, a lawyer’s duty of competence in a litigation or investigation requires that the lawyer have a sufficient understanding of issues relating to securing, transmitting, and producing electronically stored information (“ESI”). The duty of technological competence required in a specific engagement will vary depending on the nature of the ESI at issue and the level of technological knowledge required. A lawyer fulfills his or her duty of technological competence if the lawyer possesses the requisite knowledge personally, acquires the requisite knowledge before performance is required, or associates with one or more persons who possess the requisite technological knowledge.

RULES OF PROFESSIONAL CONDUCT: 1.1, 1.6, 5.1, 5.3