It’s official: Lawyers can no longer rely on IT professionals to root out relevant electronic documentation, as the American Bar Association just amended Model Rule 1.1 in Comment 8 to require that “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 education and comply with all continuing education requirements in which the lawyer is subject.”
With new and innovative technological developments hitting the market almost daily, what this means is that attorneys now need to make technology-assisted review a priority, and make clawback agreements a given for any eDiscovery matter.
As for counsel’s court reporting counterparts, the National Court Reporters Association has the Code of Professional Ethics (COPE) for its members, but does not require that reporters keep up with technology. Instead, it offers reporters an out in Section 1.1 with, “The Member should remove him or herself from an assignment when the Member believes the Member’s abilities are inadequate, recommending or assigning another reporter only if that reporter has the qualifications required for such assignment.”
Considering the fact that court reporters have been incorporating computerization into every aspect of their profession since the ‘70s, and that reporters who typically earn in the low range of $47,700 per year are more likely not to be technologically savvy writers, it will be interesting to see if NCRA someday joins the American Bar Association in a push to require technological competence of all its members. The days when a reporter can rely upon his or her contacts for work, rather than the ability to provide up-to-date technology such as realtime, rough ASCIIs and streaming video, will be soon behind us.