Lawyers cannot ignore technology

The ABA made it abundantly clear that lawyers must keep up with technology when it amended comment 8 to Model Rule 1.1 on competence. Comment 8 now reads:

To maintain the requisite knowledge and skill, 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 legal education requirements to which the lawyer is subject.

(Emphasis added.)

As Nicole Black, Director of Business Development at MyCase, puts it, “I think it’s pretty clear that […] lawyers can no longer turn a blind eye to technological advancements and their effect on the practice of law.” Without necessarily invoking the ABA comment, courts are taking a similar approach.

“The court considered it a “matter of professional competence” that lawyers should investigate social networking sites ….”

The duty to Google

A seminal case in the area of availability of information and lawyers’ obligations to seek it out is Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010, en banc), in which a party sought a new trial based on a juror’s nondisclosure of his litigation history. While acknowledging the lack of a Supreme Court rule on the extent to which a party is required to research a potential or actual juror, the court stated:

[I]n light of advances in technology allowing greater access to information that can inform a trial court about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention at an earlier stage. Litigants should not be allowed to wait until a verdict has been rendered to perform a Case.net [state online database similar to PACER] search for jurors’ prior litigation history when, in many instances, the search also could have been done in the final stages of jury selection or after the jury was selected but prior to the jury being empanelled.

Johnson, 306 S.W.3d at 558-59.

The court ultimately ruled that parties must use “reasonable efforts” to conduct the described search, and courts must ensure the parties have a reasonable opportunity to do so. Given this rule, if a lawyer in Missouri fails to conduct this search and later discovers information that may have impacted a juror’s service, he is likely to find the court unsympathetic to a motion for new trial. And in that case, the lawyer may have committed malpractice and an ethical violation.

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