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Scott MacMullan

Disbarred for being a luddite? It could happen.

“I’m not a technology person.” “I have someone in my firm that handles that technology stuff.” “I remember the times when pencils were technology.” “I just learned how to fax!”

Sound familiar? Lots of lawyers are either ignorant to technology or are playing dumb. Well this is not OK anymore. You might be disbarred for being a luddite.

With Anne Arundel County launching criminal e-filing on Monday, if you now want to practice law in the courts there, you need to have some working knowledge of MDEC. In other words, you have to be competent, acording to Model Rule 1.1, with MDEC to practice in Anne Arundel County and soon the rest of Maryland.

You also have to have a working knowledge of social media to practice in Maryland. In Griffin v. Maryland, 192 Md. App. 518 (2010), the court considered it a “matter of professional competence” that lawyers should investigate social networking sites as part of their due diligence. Griffin’s holding was overruled but the concept that the attorneys have an obligation to review social media evidence as part of their due diligence was not discussed.  (See also Luddite Lawyers are ethical violations ready to happen.)

As time goes on, what is acceptable and what is unacceptable in our society has changed. (As it always tends to do.) The definition of “reasonably necessary” competence has, and will further develop, to include technological know-how. It is reasonable to be competent in E-Discovery. It is reasonable to be competent in MDEC. It is reasonable to be competent about the confidentiality of your client’s files when they are in the “cloud”. It is also reasonable to be competent about emailing and working on an unsecure connection. We must ask if these confidential files are truly safe?

With the Maryland Court of Appeals’ recent decision in Sublet v. State, authenticating social media evidence is subject to a higher standard. Therefore, it is more necessary than ever to research, review and investigate one’s own parties social media accounts as well as other parties and witnesses to a case’s account.

Being ignorant or feigning ignorance is no longer an excuse regarding technology in the practice of law. You might lose a competitive advantage and worse, you might get disbarred.