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.
Comment 8 to Rule 1.1 of the ABA Model Rules of Professional Conduct, above, got a lot of attention when it came out in 2012. And for good reason, the ABA came right out and explicitly said lawyers should be technologically competent. Since then, state bars (fourteen so far) have been making similar modifications to their rules.
The general feeling seems to be that the duty of technological competence is something new. The comment itself seems to support this view, since it says should, not must, and since it is a comment after all, not the body of the rule. But technological competence was part of Rule 1.1 long before 2012. The comment did not create the obligation to be technologically competent. It has always been part and parcel of regular old professional competence.
In the report accompanying the new comment, the ABA Commission on Ethics 20/20 explained:
The proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.
That last part is the important part. Technological competence is “part of a lawyer’s general ethical duty to remain competent.” The comment is just a reminder of the technological component of that duty.
So what is competence? Remember that being incompetent does not mean you are stupid or a bad lawyer. It means that you lack the skills or knowledge necessary to represent your client. You can become competent by acquiring those skills. That might mean spending extra time reading up on the relevant law, or it might mean associating with another lawyer who is competent. But you must become competent before you represent that client.
In the case of technology, competence has more to do with the tools you use than the substance of your legal arguments and strategies. Can you communicate securely with your clients? Can you build a useful, well-structured contract in Microsoft Word? Can you lay a foundation for a tweet in a deposition or trial? Can you properly redact a PDF? Can you store your client’s information securely on your computer, your network, or the cloud?
Your brilliant legal strategy will not count for much if you can not navigate e-discovery or if you lose your draft summary judgment memorandum hours before it is due. And sooner or later, your clients will find another lawyer if you waste their money and time on basic tasks because you aren’t proficient with your devices.
There are a whole lot of incompetent lawyers out there. Not technologically incompetent, mind you. Incompetent. As in should not be representing clients. They are incompetent because they think an email disclaimer counts as a security measure. Or because they think they aren’t using the cloud. Or because they don’t know how to use Styles in Word.
What does it mean to be technologically competent? The rule obviously does not contain a checklist (nor should it; technology changes too fast), so I made one. It is necessarily a work in progress (hence the DRAFT watermark) but it is a good start. If you want to reassure yourself that you are basically competent, block off time each week to address one thing on the checklist. Start looking for information using the search box here on Lawyerist, look up the terms on Wikipedia, or explore Google.
Whether or not you get my checklist (or agree with the things I’ve chosen to put on it), you cannot put competence off. Start working on it now.
Featured image: “Portrait senior man investigator looking through magnifying glass at smart phone” from Shutterstock.