Are You Fulfilling Your Duty of Technology Competence?

At the core of legal professional conduct is a lawyer’s duty to provide competent representation to his or her clients. Today, this means that lawyers are expected to take reasonable steps to understand how technology may affect their legal representation.

In the past, lawyers were deemed to be competent based on their experience and knowledge of a substantive area of the law. As technology evolved, so to did the concept of competence.

As mandated by the American Bar Association’s Model Rules of Professional Conduct, lawyers are required to have the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation, including the use of methods and procedures that meet the standards of competent practitioners. 

But what does this mean in an age when client information is stored electronically,

In 2012, the American Bar Association modified its Model Rules to require lawyers to stay abreast of changes in the law and its practice, including the benefits and the risks associated with relevant technology. The duty of competence includes both substantive knowledge of law and competent use of the technology that lawyers use to practice law.

“The seemingly minor change to a Comment to Rule 1.1 captures an important shift in thinking about competent twenty-first century lawyering,” Suffolk University Law School Dean Andrew Perlman wrote. “Technology is playing an ever more important role, and lawyers who fail to keep abreast of new developments face a heightened risk of discipline or malpractice as well as formidable new challenges in an increasingly crowded and competitive legal marketplace.”

Writing about a lawyer’s duty of technical competence, lawyer Steven Puiszis listed several broad areas in which lawyers are expected to demonstrate technological competency. They are:

1. Cyber security, or safeguarding electronically stored client information

2. Electronic Discovery, including the preservation review and production of electronic information

3. Leveraging technology to deliver legal services, such as automated document assembly, electronic court scheduling and file share technologies

4. Understanding how technology is used by clients to offer services or manufacture products

5. Technology used to present information and/or evidence in the courtroom

6. Internet-based investigations through simple Internet searches and other research tools available online

Lawyers are precluded from pleading ignorance of new technologies. While the Model Rules do not require lawyers to be technological experts, all lawyers are required to have at least a basic understanding of the technologies they and their clients use.

Technology that lawyers may already be familiar with includes case management software, billing software, email and the Microsoft Office Suite. Lawyers are also expected to know how to conduct simple web searches and use eDiscovery tools. These tools cut down on the time a lawyer spends researching a case. The inability to use these tools could cost clients time and adequate representation.

Writing for the ABA blog Legal Rebels, Ivy B. Grey said:

“By remaining technologically incompetent, lawyers are knowingly wasting clients’ time and money due to lack of computer skills. That is unacceptable. It is time to recognize that inefficient use of technology, such as MS Word, could mean overbilling a client. When lawyers choose not to learn technology because the old way of doing things leads to more billable hours, they are not serving their clients fairly.”

The challenge to maintain technology competence is unique. New technology enters the legal market every year, and staying up-to-date on those advancements requires a lawyers knowledge to continually evolve. Like all other areas of the law, taking reasonable steps to become technologically competent entails continuing legal education or by associating with other professionals who are competent in the area.

The language of the modified rule was intentionally vague to create space for the duty of technological competence to evolve along with changes in technology, Puiszis wrote. As the use of artificial intelligence and other innovative tools are rolled out, lawyers will be expected to use those tools effectively.

“The specific skills lawyers will need in the decades ahead are difficult to imagine,” Perlman wrote.

More than half of state bar associations have adopted the Duty of Technology Competence. Nebraska was latest state to adopt the Model Rule in September 2017, bringing the total to 28. Arizona, Colorado, Florida, North Carolina Utah and Virginia are a few other states that have adopted the ABA’s 2012 amendments to the Model Rules. 

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