National Association of Attorneys General
The Ethical Duty of Technology Competence: What Does it Mean for You?
Hedda Litwin, NAAG Cyberspace LAw Chief Counsel and NAGTRI Program Counsel
Competent representation, as stated in the American Bar Association (ABA) Model Rule 1.1, has always been a hallmark of a lawyer’s duties. Then, in 2012, the ABA revised Rule 1.1, amending Comment 8 to explain what “competent representation” means. The comment now reads “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 amendment certainly served as a wake-up call that emphasized the importance of technology in the practice of law today. Since it was adopted, 28 states to date have either adopted the amended comment or otherwise advised attorneys to stay abreast of technology as it relates to the practice of law. Some states have adopted the amendment verbatim, while other states have adopted a modified, and in some cases, less stringent version. For example, the New Hampshire Bar’s comment reads:
ABA comment …requires that a lawyer ‘should keep abreast of…the benefits and risks associated with relevant technology.’ This broad requirement may be read to assume more time and resources than will typically be available to many lawyers. Realistically, a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers similarly situated are using.
Some states have adopted the amendment and gone further. The Delaware Supreme Court created the Commission on Law and Technology to educate both the bench and bar on technology. Additionally, on January 1 of this year, Florida became the first state to require technology training as part of its ongoing continuing legal education (CLE) requirement.
Even if a state bar has not adopted the ABA amendment, it still serves as persuasive authority, and some states have addressed technology competence in later ethics opinions. For example, California issued Formal Opinion 2015-93, which posits that technological competence is an expectation and then goes on to articulate what the parameters of that expectation are.
So what does technical competence entail? The precise skills will vary depending on the lawyer’s area of practice, the case at hand, and the technology involved. For example, if the case involves the potential for production or review of electronically stored information (ESI) (and most civil litigation does in today’s world), the attorney must be competent in handling e-discovery tasks such as implementing preservation procedures, assessing the client’s data systems, identifying relevant ESI custodians, and producing relevant, non-privileged ESI in an appropriate format.
The duty also involves competence in the technology lawyers use in the practice of law and in the technology their clients and client agencies are using, such as computers, tablets, scanners, printers, and copiers, as well as the use of email and electronic or cloud storage of documents. Such competence can extend to software and programming designed specifically for lawyers to streamline the practice of law, such as document review or calendaring software. Additionally, trial attorneys need to have knowledge of, and familiarity with, technology that can be used in courtrooms.
No state has published a list of technologies that lawyers must master or skills that lawyers must acquire. If there were such a list, it might include email, document management software, and the Microsoft Office Suite, for starters. So, a first step might include an assessment of the technologies the lawyer uses and the technologies relevant to the cases he or she handles, followed by an honest evaluation of the lawyer’s competency in each of those technologies.
Then the lawyer should make a plan. For technologies in which the lawyer’s skills are lacking, technical competence can be gained through education and training. There are many CLE courses, webinars, and trainings available on technology issues, both from a basic level to more advanced subjects. Until that expertise is gained, note that Comment 2 to ABA Model Rule 1.1 provides that an attorney not yet achieving technical competence can partner with one with the required skills and expertise.
The ABA competency amendment and its state counterparts are not asking lawyers to be tech experts or geeks. They are, however, asking lawyers to make efforts to keep abreast of changing technologies and to obtain and use technology in an appropriate way consistent with the needs of their practice and the norms of their legal community.
 Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Nebraska, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin and Wyoming.