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Delaware Supreme Court Commission on Law & Technology

News & Upcoming Events

Upcoming Educational Events

Currently, there are no events scheduled. Please check back.

Past Educational Events & Materials

Delaware State Bar Association Bench & Bar 2014 | June 6, 2014
Topic: Law & Technology
Speakers: Richard K. Hermann, Esq.
Kevin F. Brady, Esq.
Steve Butler, Esq.
Margaret M. DiBianca, Esq.
Edward J. McAndrew, Esq.
Video from the Bench & Bar 2014 mp4 format*
*Please note the videos is a large file and may take some time to open or download. Best played on Internet Explorer or download the file by right clicking your mouse on the link and clicking "Save Link As...".

Bifferato Law Forum CLE | February 28, 2014
Topic: Mobile Technology
Location: New Castle County Courthouse
Speaker Steve Butler, Esq.
Video from the February 28, 2014 Forum in mp4 format*
*please note the videos are large files and may take some time to open or download

Bifferato Law Forum CLE | January 17, 2014
Topic: Delaware Amended Rules of Professional Conduct,
Commission on Law & Technology Speaks from the Bench (January 17, 2014)
Location: New Castle County Courthouse
Speakers: Hon. Henry duPont Ridgley, Hon. Eric Davis, Hon. Michael Newell, Richard Herrmann, Esq., Kevin Brady, Esq.
Video and material from the January 17, 2014 Forum: Video* in mp4 format; presentation
*please note the videos are large files and may take some time to open or download

News

Ethics and Technology: Delaware Finds Itself First Again ethics image

Besides being known as the First State to ratify the Constitution, Delaware enjoys a number of firsts in the area of law and technology.  Our courts were the first in the world to conceive of and implement electronic filing in 1991.  We were the first to have a state court rule relating to interactive briefs.  Our district court was the first to create an electronic discovery default standard in 1995 before the amendments to the Federal Rules of Civil Procedure were adopted.  And now we are the first state to have a Supreme Court Commission on Law and Technology.

The July 1, 2013 Order creating the new Arm of the Court recognized the need to provide “lawyers with sufficient guidance and education in the aspects of technology in the practice of law so as to facilitate compliance with the . . . Rules of Professional Responsibility.”  The creation of the Commission follows the amendments to the ABA Model Rules of Professional Conduct in August of 2012, adopting the work of the Ethics 20/20 Commission.  The Delaware Rules were amended in January 2013, adopting much of the model rules.  These amendments specifically focus on the need for lawyers to be competent in the technology they are using and to understand the impact the technology may have on client confidentiality.

There was a time, not many years ago, when the subject of practice management was not an approved topic to qualify for CLE credit in many states.  The times have changed, even prior to the amendments to the ABA Rules of Professional Conduct.  Lawyers and courts have realized the practice of law has evolved dynamically, in no small measure, as a result of the increased importance technology has played in the daily practice and in litigation itself.  The Supreme Court of Delaware was the first to realize this in the language of Rule 1 of the new Commission, “[i]t is of utmost importance to the public and to members of the Bar that attorneys maintain their professional competence in technology.”  The Court understands this “competency in technology is important not only in rendering legal services, but also in providing them in a manner which will not compromise privilege or confidentiality.”

Over the last decade, ethics issues relating to technology have been anecdotal. Many have been in the form of informal or advisory opinions.  Others have related to specific breaches of ethical conduct.  Organizations such as the ABA are fairly good at tracking certain ethical topics, such as metadata and cloud computing.  But they are all lacking two important elements, education and guidance such as best practices.  It will be Commissions, such as the one just created in Delaware, whose mission it is to develop and publish guidelines and best practices and to educate the members of the bar in their use.

But isn’t there a danger here?  Won’t these new best practices create a mine field for those attorneys who have not followed them?  Suppose in some malpractice action, some plaintiff attempts to establish liability on the grounds the attorney failed to follow the guidelines and best practices established in the legal community by the Supreme Court’s Commission.  The Court anticipated this issue and has made it clear in the Rules that it “is not the purpose of the Commission, its guidelines or best practices to mandate a standard that must be followed or to create any additional exposure to the Delaware Bar.  If the creation of guidelines or best practices could be used as evidence or support of a legal standard, there would be a tendency to create very limited or superficial guidelines or best practices.  The work of the Commission needs to be useful and without fear that its work product will be used for an unintended purpose.”  To this end, the Rule provides that the failure of an attorney to comply with a published guideline or best practice is not admissible for any purpose in a civil action in any court.

The effective date for the new Commission is September 2013.  This gives the Court sufficient time to select the 15 member Board which will include representative Judges from the courts, lawyers from law firms of many sizes, corporate counsel and CIO’s from Delaware law firms.  It is anticipated the business of the Commission will immediately take two tracts:  (1) the development of best practices; and (2) providing quality educational programming on technology for the Bar.  Since the mission of the Commission is centered on ethics, and since Delaware has an ethics CLE requirement, it should not be difficult to obtain a ready and enthusiastic audience of attorneys who are interested in making their practices more safe, efficient, within the Code of Professional Conduct, and, at the same time receiving free ethics credit.

There are a number of important current technology issues ripe for consideration.  We can call them the low hanging fruit.

  1. Metadata has been an issue for at least a decade.  A number of opinions exist from a number of jurisdictions.  There is a split of authority as to whether a lawyer receiving a document can intentionally look into track changes to see if an unknowing sending lawyer inadvertently sent the old draft language with it.  The more important issue, however, is what steps should a sending lawyer take to avoid the issue in the first place.  The Commission will publish these steps.
  2. Cloud Computing is currently a hot topic.  Is it safe to use the cloud and what steps should be taken to protect client confidentiality?  The ABA has a beautiful map showing the jurisdictions having issued opinions on the subject.  Of course, just looking at the domain name is enough to cause a lawyer to glaze over.  The opinions are interesting, and many get to the same point but not clearly to the technologically challenged.  For example, there are a few simple do’s and don’ts.  It is the simple list one can follow that is important if we are to reach those who need to understand the dangers most.
  3. Security is an issue which is clearly understood and then ignored for the sake of convenience.  When was the last time you have heard of a lawyer, particularly in a small firm without technology support, who had a thumb drive which was passworded?  In fact, how many of you use your smart phone or tablet without a required password?  The need for good network password security is rarely enforced.  If you are interested in a law firm encountering a password nightmare, read the West Virginia Supreme Court ethics opinion Lawyers Disciplinary Board v. Markins, No. 33256 (May 23, 2008).  It is a good read; I am still waiting for the movie.
  4. eDiscovery is a bit more complicated but obviously requires attention.  I don’t consider it the low hanging fruit.  The issues are not simple; nor are they straight forward.  A basic best practices approach for the novice is sorely needed.  Many lawyers have been burned by either not knowing the consequences of their actions or believing they could simply avoid the consequences by delegating.  Neither approach will work.  And even to those well educated in the field, dangers abound.  Simply ask Glaxo SmithKline. ( www.law360.com/m/articles/409104/gsk-says-e-discovery-co-ceo-is-holding-data-hostage ).

We should anticipate that technology and the law will be among the hottest of topics during the next several years.  Commissions, such as the one created in Delaware, will be the mark of the official start.  But there are other avenues for creation of best practices and education on the horizon.  The American Inns of Court has recently launched a virtual presence on the internet.  It is known as AIC Technology University (www.aictechu.org ).  The purpose of the Technology University is two-fold:  (1) to confront and discuss solutions for ethical issues which  arise when lawyers and judges use the latest technology in their practice; and (2) to distribute information on the latest technology available for lawyers and judges.  The University has a number of colleges for example, the College of Social Media, the College of Mobile  Technology,  the College of Courtroom Technology, and, of course, the College of Ethics and Technology.  Any of the 29,000 members of the American Inns is eligible to register and will have access to a growing body of information being developed by the Deans of each college and those supporting the effort.

[i] Richard K. Herrmann is an Intellectual Property Partner in the Delaware firm of Morris James LLP.  He is Co-Chair of the Delaware Supreme Court Commission on Technology and the Law, Chair of the Delaware Supreme Court Commission of Continuing Education, Co-Chair of the Delaware District Court Technology Committee and Chair of the Delaware State Bar Association Technology Committee.  He is the President of the American Inns of Court Technology University and is on the Executive Committee of the Richard K. Herrmann Technology Inn of Court.  He teaches technology related courses for the National Judicial College and is Visiting Professor at Widener University School of Law.