The Delaware Supreme Court has announced the creation of an innovative new “Arm of Court” called the Commission on Law and Technology. According to the press release (here), the Commission will give lawyers guidance on how to comply with the recent amendments to the Delaware Rules of Professional Conduct, which address a lawyer’s technological competence and confidentiality obligations in a digital age. The Commission and the recent amendments were prompted by the recent changes to the Model Rules of Professional Conduct proposed by the ABA Commission on Ethics 20/20. Here’s more from the Court’s press release:
The mission of the Commission is to provide Delaware lawyers with sufficient guidance and education in the aspects of technology and the practice of law, so as to facilitate compliance with the “recently updated” Delaware Lawyers’ Rules of Professional Conduct. According to Supreme Court Justice Henry duPont Ridgely, Liaison Justice to this new arm of Court, “The 15 person Commission will develop and publish guidelines and best practices, regarding the use of technology and the practice of law, as they may relate to lawyer competence and client confidentiality.” Ridgely explained the Delaware Lawyers’ Rules of Professional Conduct were amended in January of this year to specifically focus on the need for lawyers to understand and maintain a level of competence in advancements in technology. This change followed the American Bar Association’s amendments to its Rules in August of 2012. “Other Supreme Courts throughout the United States are making or considering similar amendments” added Ridgely, “but Delaware is the first State to create and task a Commission with the responsibility of assisting its lawyers in this regard. We live in an ever changing world of technology, and it is having a direct impact on the way lawyers are practicing law.”
I think this is a terrific development. The ABA Commission on Ethics 20/20 made clear that the Rules of Professional Conduct cannot provide lawyers the detailed information they need in this area. Technology is changing too rapidly. For this reason, the Commission reached the following conclusion:
[T]he Commission has asked the ABA Center for Professional Responsibility to work with relevant entities within the Association to create a centralized user-friendly website with continuously updated and detailed information about confidentiality-related ethics issues arising from lawyers’ use of technology, including information about the latest data security standards. The Commission concluded that this web-based resource is critical given that rule-based guidance and ethics opinions are insufficiently nimble to address the constantly changing nature of technology and the regularly evolving security risks associated with that technology. The ABA’s Legal Technology Resource Center and Law Practice Management Section’s eLawyering Task Force have developed excellent technology-related resources, but those resources exist in different places on the ABA website. The Commission found that lawyers are seeking a website that serves as a centralized and continuously updated resource on these issues.
I’m hopeful the ABA will ultimately play a leadership role on these issues. In the meantime, other states might consider following Delaware’s lead or adopting the work product of Delaware’s new Commission.
(Thanks to Monica Bay and Legal Technology News for the story.)