Legal Competence and the Role of Technological Expertise

Twenty-six states have now adopted some version of the 2013 ABA Model Rule 1.1, which requires awareness of “the changes in the law and its practice, including the benefits and risks associated with relevant technology.” The scope of technologies a lawyer may encounter suggests that outside expertise may be required.

For general counsel, the technology the client deploys and the data it acquires likely presents risk to the enterprise that warrant legal guidance. Whether providing advice as in house or outside counsel, rules of professional conduct call on lawyers to recognize when it is necessary to call on outside help.

Ensure that inside and outside counsel have enough access to business clients to truly understand the business technologies on which they advise. Understand the scope of the content and applicable regulatory schemes. Use an expert to understand security and other vulnerabilities in the environment. Uncover and examine technology and data-oriented policies and procedures, and analyze what they mean and ask if they address current realities. Take an especially close look at technologies used to meet legal obligations, including those used for discovery. Talk to the CIO, IT, legal, and the business.

Assessing expertise is difficult. Find those with deep background in the underlying activity to be accomplished, not just those who can use a technology. Interview the purported experts. The mark of competence for general counsel or outside counsel often lies in knowing when and how to engage expert technology help.