Five years ago, in 2012, the American Bar Association approved some changes to the Model Rules of Professional Conduct, to make it clear that lawyers are required to be competent in the law and its practice as well as in the field of legal technology. What some viewed as long overdue, others viewed as a radical concept. So how much does a practicing attorney need to know about technology?
Specifically, the ABA’s House of Delegates amended Model Rule 1.1, Comment 8 to read as follows (underline represents amended language):
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.
The Model Rules
The Model Rules are in fact, just a model. Their goal is to provide a framework to the states in formulating statewide rules of professional conduct. But each state can modify, ignore, adopt or even reject the Model Rules. Each state’s highest court or the rule setting body has to proactively take action in order for lawyers to be held to a technological standard.
Over the last five years, 26 states (at last count) have adopted some form of the Model Rule that now requires lawyers to have some technological competence in order to practice law. The problem for many is that technology is a constantly moving target. Just when you understand your client’s email servers, network locations and backup procedures, your client moves to the Cloud, which changes everything. No sooner have your internal technology team mastered the process for exporting your client’s proprietary POS system then a new system is put in place without informing legal counsel of the changes. Mapping and defensibly collecting data continue to evolve.
What is Competence?
Competence does not mean perfection, expertise, or paranoia. It also doesn’t mean that lawyers must now become early adopters, anxious to discover, purchase, and learn every possible new piece of legal technology. But it does require at least a working understanding of, and reasonable proficiency in, the technology under consideration. And of course, specific proficiencies and competencies will vary between lawyers and practice areas. Most rules focus on two primary obligations:
- Attorneys need to try and remain familiar with technology developments that affect their clients.
- Attorneys need to understand their limitations and when needed, consult with other resources who can provide additional technology expertise.
In order to maintain the requisite knowledge and skill set, a lawyer needs to keep abreast of changes in the law and its practice, including the risks and benefits that are associated with the relevant technology and engage in continuing legal education requirements that they are subject to wherever they are members of the bar. If a lawyer is technologically incompetent there are three primary choices:
- Personally become conversant in the technology before undertaking the matter.
- Consult with technical people or competent technical counsel
- Decline the representation.
Since each state has adopted a variation of the Model Rules, it is important that lawyers research the specific obligations that apply to their circumstances. Even if your state has not yet adopted a form of the technology competence Model Rule, you should not wait to take personal action until it is required. You do not have to get a Masters in Computer Science to support your clients regarding technology. However, you can’t assess the benefits and risks associated with legal technology if you have no personal knowledge about how the technology works. In order to evaluate the conditions of an eDiscovery data exchange, you need to be aware of the major issues that could impact your client and their legal position. If you don’t have the requisite knowledge yourself, make sure you confer with technical consultant and competent counsel. It is no longer acceptable to say that technology is not a part of the practice of law; it is integral to many phases of litigation.