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Devon Lee Guest Posts: New supreme court rules governing attorneys’ use of technology

The Wisconsin Supreme Court recently amended portions of SCR Chapter 20 that, among other things, govern the use of technology in a law practice. SPD Legal Counsel, Devon Lee, explains what these changes mean for lawyers who use email, cloud computing, and/or social media. Isn’t that everybody?

Changes in technology have changed the ways in which lawyers practice law: most lawyers use email, and many rely upon cloud computing and social media.  In 2012, the American Bar Association adopted amendments to its Model Rules to reflect the changes that technology has made on the modern practice of law.  In turn, the Wisconsin State Bar Professional Ethics Committee (“Ethics Committee”) submitted Rule petition 15-03 to address this new reality.  The requested changes focused on the role of technology in the practice of law and included amendments governing competence, confidentiality, and advertising.  For example, as noted in the Committee’s memo in support of its petition,  a lawyer who exchanges electronic documents must be aware of the metadata contained in those documents and the resulting issues of competence and confidentiality.  A lawyer must also be aware of the confidentiality issues implicated when he or she stores information on cloud-based systems if that information is contained on servers the lawyer does not own or control.

On July 21, 2016, the supreme court entered an order adopting many of the proposed changes, all of which will be effective January 1, 2017. Because the order makes numerous changes to Chapter 20, many of which are beyond the scope of this post, practitioners should read the order in its entirety. This post will highlight some of the new rules related to technology.

SCR 20:1.0(q) will be amended to reflect the “technological and marketing realities of contemporary practice.”  For example, the term “e-mail” will be changed to “electronic communications.” The term “materials” will be changed to “information, including information in electronic form.”  Perhaps more importantly to many practitioners, in order to maintain competence, lawyers will be expected to understand “the benefits and risks associated with relevant technology” related to the law and its practice. This means lawyers who send electronic documents must be mindful of the metadata contained in those documents.  Lawyers who use cloud-based systems to store client information must be aware of potential confidentiality issues when using servers that they do not own or control.

Lawyers may also wish to review Wisconsin Ethics Opinion EF-12-01, which addresses metadata, and Wisconsin Ethics Opinion EF-15-01, which addresses a lawyer’s responsibilities when using cloud-based information management or storage systems.

Another change relevant to SPD practice is the amendment of Rule 20:4.4(b).  That rule now explains that a lawyer who receives a document or “electronically stored information” relating to the representation of the lawyer’s client and knows or should know that the information was inadvertently sent must promptly notify the sender.

According to the updated comment to the rule, the amended paragraph (b) recognizes that lawyers receive information that was mistakenly sent. If the lawyer knows or reasonably should know that the information was sent inadvertently, the Rule requires the lawyer to notify the sender to allow the sender to take protective measures.  

New Rule 20:4.4(c) requires a lawyer who receives a document or electronically stored information relating to the representation of the lawyer to terminate review or use of it, notify the person or the person lawyers if necessary, and abide by that person’s or lawyer’s instructions with respect to what to do  with that information.

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