Withdrawn | amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality)
Pursuant to Part Six: Section IV, Paragraph 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality) of the Virginia Rules of Professional Conduct.
Technology and the Practice of Law
Almost two years ago, the American Bar Association’s House of Delegates adopted amendments to the Model Rules of Professional Conduct. The amendments to the Model Rules followed a three-year study and public hearings conducted by the Commission on the Impact of Technology and Globalization and the Practice of Law (“Ethics 20/20”). In its May 2012 Report to the ABA House of Delegates, the Ethics 20/20 Commission observed:
Lawyers must understand and be competent with law office technology in order to deliver legal services to clients in a cost-effective and efficient manner. Increasingly, new processes and applications have developed for providing legal services and communication with clients. Lawyers have an obligation under Rule 1.1 to keep abreast of relevant changes in the way law is practiced, including keeping abreast of relevant law office technology for the delivery of legal services to and communicating with their clients. With these developments come also concerns for the security of client information kept or maintained by lawyers and confidentiality of client-lawyer communications.
As the ABA Commission on Ethics 20/20 noted in its Report to the House of Delegates in May 2012:
Technology affects nearly every aspect of legal work, including how we store confidential information, communicate with clients, conduct discovery, engage in research, and market legal services. Even more fundamentally, technology has transformed the delivery of legal services by changing where and how those services are delivered (e.g., in an office, over the Internet or through virtual law offices), and it is having a related impact on the cost of, and the public’s access to, these services.
First, the Commission noted that technology has changed the way lawyers maintain client files and information and also the way lawyers communicate with clients:
Today, lawyers regularly communicate with clients electronically, and confidential information is stored on mobile devices, such as laptops, tablets, smartphones, and flash drives, as well as on law firm and third-party servers (i.e., in the “cloud”) that are accessible from anywhere.
The increased efficiency, reduced cost and convenience of these technologies are understood, but with them are new concerns about client data security and confidentiality under Rule 1.6. Whether mobile or sitting in their offices, lawyers have an ethical duty under Rule 1.6 to protect the security and confidentiality of their clients’ information.
Second, the Commission noted that:
Technology is also having a related impact on how lawyers conduct investigations, engage in legal research, advise their clients, and conduct discovery. These tasks now require lawyers to have a firm grasp on how electronic information is created, stored, and retrieved. For example, lawyers need to know how to make and respond to electronic discovery requests and to advise their clients regarding electronic discovery obligations. Legal research is now regularly and often more efficiently conducted online. These developments highlight the importance of keeping abreast of changes in relevant technology in order to ensure that clients receive competent and efficient legal services.
Because these technologies not only provide lawyers with tools to better represent their clients but also raise new challenges to lawyers in protecting confidential client information, the Virginia State Bar’s Standing Committee on Legal Ethics is proposing that Comment 6 to Rule 1.1 (Competency) be amended to state:
 To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including the benefits and risks associated with technology relevant to the lawyer’s practice. . . .
The Committee also proposes that Rule 1.6 (Confidentiality) be amended by adding a new paragraph (d):
A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information protected under this Rule.
To help clarify and explain a lawyer’s duties under this proposed rule amendment, the Committee also recommends adding new Comment 19:
Acting Reasonably to Preserve Confidentiality
 Paragraph (d) requires a lawyer to act reasonably to safeguard information protected under this Rule 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 confidential information does not constitute a violation of this Rule 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 or may give informed consent to forego security measures that would otherwise be appropriate under this Rule. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other laws, 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.
Inspection and Comment
The proposed rule amendments may be inspected at the office of the Virginia State Bar, 1111 E. 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 rule 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/pro-guidelines/index.php/rule_changes
Not later than September 2, 2014, any individual, business, or other entity may file or submit to Karen A. Gould, the Executive Director of the Virginia State Bar, a written comment in support of or in opposition to the proposed rule amendments.
Updated: September 18, 2014