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Home > Rule Changes > amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality).

Withdrawn | amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality).


VIRGINIA STATE BAR’S STANDING COMMITTEE ON LEGAL ETHICS EXTENDS ITS DEADLINE FOR COMMENTS ON PROPOSED AMENDMENTS TO RULES 1.1 (COMPETENCE) AND 1.6 (CONFIDENTIALITY) OF THE RULES OF PROFESSIONAL CONDUCT

 

The Standing Committee on Legal Ethics (“Committee”) met on September 10, 2014, and reviewed comments submitted by bar members in support of and opposition to the proposed amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality) of the Virginia Rules of Professional Conduct. Because only six comments were received when the proposed changes were published for comment on August 2014, the Committee wishes to extend the comment period. 

view proposed amendments revised 9/18/14 (PDF file)

Technology and the Practice of Law

For quite some time now, lawyers and their staff have been compelled to adapt to changes in technology including electronic filing, discovery of electronically stored information, social media and security of electronic communications and storage of client information.  Protecting the privacy of medical, financial and personal identification information is required by state and federal law.  Federal and Virginia Rules of Procedure impose requirements that require a lawyer to become knowledgeable about technology in order to conduct proper discovery.

The proposed rule changes do not necessarily require that a lawyer become “tech-savvy” or acquire training, skill or experience with information technology.  At the same time, lawyers cannot ignore the fact that technology has and will continue to change the practice of law.  A lawyer may discharge his or her duty of competence by employing or associating others who have developed the requisite skill and expertise.  However, a lawyer may not simply ignore relevant technologies that have become widely accepted by the bar and have become reasonably necessary to represent clients competently and diligently.  For some time, courts have found a lawyer deficient in representing a client by failing to discover information that can readily be found by a simple search on the internet.  An interesting case is Munster v. Groce, 829 N.E.2d 52 (Ind. App. 2005).  In Munster, a lawyer was chastised for not using Google to locate a non-resident defendant after filing a Long Arm affidavit stating that the defendant's address could not be found.  See also Johnson v. McCullough, 306 S.W.3d 551, 559 (Mo. 2010) (imposed an affirmative duty on attorneys to make online investigation of potential juror’s prior litigation history a key part of their jury selection process “in light of advances in technology allowing greater access to information.”).  Trial lawyers should be well aware that their clients’ Facebook pages and other social media accounts contain relevant and discoverable evidence that must be preserved and produced pursuant to a lawful discovery request.  Allied Concrete Co. v. Lester, 285 Va. 295, 302, 736 S.E.2d 699 (2013)(spoliation of evidence charge against plaintiff and plaintiff’s counsel; the trial court sanctioned Murray in the amount of $542,000 and Lester in the amount of $180,000 to cover Allied Concrete's attorney's fees and costs in addressing and defending against the misconduct.)

See also N. H. Bar Ass’n, Op. 2012-13/05 (lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation”); Ass’n of the Bar of the City of N. Y. Comm. on Prof’l Ethics, Formal Op. 2012-2 (“Indeed, the standards of competence and diligence may require doing everything reasonably possible to learn about jurors who will sit in judgment on a case.”).  Also consider that an American Academy of Matrimonial Lawyers survey pinpoints Facebook as the "unrivaled leader for online divorce evidence" with 66 percent citing it as a primary source.

Twenty years ago, Judge Robert Payne found that a lawyer’s performance in representing a client was deficient because the lawyer failed to use appropriate methods to discover that the Supreme Court had granted certiorari from two federal appellate courts on the precise issue critical to his client’s defense on charges of “structuring” payments to avoid the reporting requirement of cash payments made to him by his client.  Judge Payne observed:

In the modern environment of law practice, the law changes rapidly and develops in significant ways as a matter of course. One consequence of this modern environment, and of dramatic advancements in technology, is the advent of extensive resources for staying abreast of developments in the law. Numerous legal newspapers, periodicals such as United States Law Week, and on-line services serve this important purpose.

McNamara v. United States, 867 F. Supp. 369, 374 (E.D. Va. 1994). (emphasis added). The research tools McNamara’s defense counsel relied on were out of date.  As a result of his lawyer’s failure to use newer research methods, McNamara was denied the effective assistance of counsel.  The Court observed:

On the facts of this case, the failure to discover the pendency of Ratzlaf was deficient conduct under Strickland. It was not sufficient to rely solely on the annotations to the United States Code in interpreting the elements of the offense charged. This insufficiency is illustrated by the fact that now, even after the Supreme Court has decided Ratzlaf in direct contradiction of Rogers, the annotations relied on by Donnelly still reflect Rogers as the law in the Fourth Circuit.

These and other examples amply demonstrate how technology has changed the practice of law over time.  Accordingly, the rules of conduct that explain the duties lawyers owe to clients should also be amended to keep up with emerging standards.  Again, the proposals do not require that a lawyer be personally proficient with technology but the lawyer should implement appropriate technologies essential to represent clients diligently and competently in a digital age.  Lawyers can meet this standard in the same manner as other companies and professional service providers do by employing persons that have the requisite skills and expertise in information technology.

Thirteen US jurisdictions have adopted the August 2012 amendments to the ABA Model Rules which include the proposed amendments to Rules 1.1 and 1.6.  The jurisdictions are:  Arizona, Connecticut, Delaware, Idaho, Kansas, Nevada, New Mexico, Oregon, Pennsylvania, Wyoming, American Samoa, N. Mariana Islands, and US Virgin Islands.   See http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/state_implementation_selected_e20_20_rules.authcheckdam.pdf

 

Inspection and Comment

The proposed amendments may be inspected at the offices of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-3565, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday.  Copies of the proposed amendments can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org/site/regulation/proposed-rule-changes/.

Not later than November 3, 2014, any individual, business, or other entity may file or submit to Karen A. Gould, at publiccomment@vsb.org, the Executive Director of the Virginia State Bar, a written comment in support of or in opposition to the proposed rule amendments.

Updated: January 5, 2017