Legal Competence in the Digital Age

As technological competence becomes integral to being a lawyer, the ABA and individual states are tackling what it means for a lawyer to be tech-savvy enough to be competent. The ABA put its thoughts on the subject in comment 8 to Model Rule 1.1. States have made their decrees by adopting that comment, modifying other rules, or taking directed action at technological competence. In the end, the basic tenet by which to practice is clear: you cannot meet the ethical obligations of the profession in today’s world without knowing the basics of technology.

ABA Model Rule 1.1 Comment 8

Model Rule 1.1, Competence, states, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Bringing in the issue of technology, comment 8 to Rule 1.1 states:

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.

(Emphasis added.)

As with all ABA Model Rules, the states can choose whether to adopt the rule and the comments or not. Model Rule 1.1 has been adopted by 49 states (all but California), but the comments are not always incorporated. States are slowly integrating comment 8, including Arizona, Arkansas, Connecticut, Idaho, Kansas, Louisiana, Massachusetts, Minnesota, New York, Ohio, Pennsylvania, Utah, West Virginia and Wyoming. Many states have not modified their rules since comment 8 was adopted by the ABA, so it is likely only a matter of time before this list grows.

The Real World Beyond Model Rule 1.1

Beyond Model Rule 1.1, many states have delved into the world of technology on the specific topics of cloud computing and metadata, both of which can get very complicated, hence the need (and permission by ethics regulators) for lawyers to ask experts or more tech-savvy lawyers to help. The ABA maintains lists of current ethics opinions from individual states on these subjects.

In between the Model Rule comment on competence and the detailed ethics opinions on cloud computing and metadata falls the idea that attorneys must possess general technological competence in order to meet their ethical obligations — not because the rules have changed but because the world has changed.

In Delaware, the Supreme Court set up its Commission on Law & Technology in 2013 for the purpose of issuing guidance on the use of technology in the practice of law. The guidance issued so far includes Leading Practice papers on multiple computing subjects, including “Basic Skills.” In the Basic Skills section is guidance on selecting operating systems and hardware while conforming to the Rules of Professional Conduct; it does not get much more basic than purchasing hardware.

The Commission makes the rather obvious and yet extremely important comment in the very first sentence of the paper that “it is impossible to practice law in Delaware today, or even to become a lawyer, without a basic understanding of how to use technology.” That is exactly the point. A lawyer must have some basic skills on technology in order to get by.

Following on the ABA’s Ethics 20/20 Commission’s proposed revisions to the Model Rules, North Carolina proposed in 2014 amendments specifically to address the growing use of technology, including proposing to adopt comment 8 to Rule 1.1. (At this point, that amendment has not been adopted.)

StateTech Competence Requirement
ArizonaState Bar of Arizona Ethics Opinion 09-04: as a matter of legal competence under Rule 1.1, a lawyer must have competence in the skills reasonably necessary for representation, which includes technology.
CaliforniaCalifornia Committee on Professional Responsibility and Conduct Formal Opinion 2015-193 recognizes that even if e-discovery is relatively new, the duty of competence is not, and in today’s technological world, every case has the potential to involve e-discovery.
New HampshireNew Hampshire Ethics Committee Advisory Opinion #2012-13/4: "Minimal competence requires a lawyer to perform the techniques of practice with skill” and required techniques include the way client information and attorney work is electronically stored.
PennsylvaniaPennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility Formal Opinion 2011-200 recognes the dramatic rise in the use of technology in the profession and lists in detail the legal ethics implications of technology.

Beyond Model Rule 1.1 and comment 8, ethics regulators recognize the practice of law has evolved. Attorneys cannot meet their basic ethical obligations to clients, courts, and the profession without understanding the tools in their hands — their smartphones, their email accounts, and their cloud-based software.

It Is Really Nothing New

As we look into how the states formalize the idea that tech savvy is required for legal competence, do not wait for a state regulator to tell you to stay on top of tech. Basic competence requires knowing how to use the tools of the trade, and whether the state says so or not, the fact is that technology is a basic tool of the legal profession in 2015. The days of it being acceptable for a lawyer not to know how to send an email are long gone (Bill Clinton aside).

The rule of competence requires a lawyer to possess the “skill” reasonably necessary for representation, and it would be a losing argument to say that any lawyer today can competently represent a client without knowing the basics of technology.

Featured image: “Young nerds sitting at the desk” from Shutterstock.

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