More and more courts and bar associations have revised their ethics rules to specifically state that lawyers must have some level of technological competence to qualify as “competent counsel.” What exactly does that mean, and how can a lawyer work towards obtaining and maintaining such expertise?
In 2012, in response to legal ethics questions that had arisen all over the country about the use (and mis-use) of electronic communications, the discovery of electronically stored information (ESI), and the use of other technologies such as artificial intelligence (AI) in the practice of law, the American Bar Association (ABA) formally approved a change to its Model Rules of Professional Conduct to add a new requirement to the concept of lawyer competence (Model Rule 1). Comment 8 to Model Rule 1.1 now reads, in relevant part:
“Maintaining Competence — 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)
Since Comment 8 was released, 38 of 50 states have incorporated this comment and the associated duty to maintain technological competence into their own ethical rules. (As of this writing, Alabama, Georgia, Hawaii, Maine, Maryland, Mississippi, Nevada, New Jersey, Oregon, Rhode Island, and South Dakota have not yet adopted Comment 8 in any form.) In addition, the State Bar of California, while not amending its Rules of Professional Responsibility, issued Formal Opinion 2015-193, adding a duty of competence in e-discovery for any lawyer representing clients in litigation.
The directive of Comment 8 seems straightforward enough on its face, but what obligations does this new requirement really impose? And how can lawyers translate these requirements into practical steps to ensure their compliance?
Unpacking the Meaning of “Technological Competence”
Comment 8 charges lawyers with understanding “the benefits and risks associated with relevant technology.” While vague on its face, this open-ended standard was crafted to remain technology-agnostic and relevant even as technology changes over time. From a regulatory perspective, this approach has been quite successful, as current legal technologies such as digital signatures, cloud storage, and AI-driven evidence analytics are covered as completely by the rule as the earlier technologies of a decade ago, when Comment 8 was first drafted.
From a practitioner standpoint, this approach also imposes an ongoing open-ended obligation to follow changes in technology. The drafters clearly believed this was for the best, as legal technology has a long history of newer solutions displacing seemingly adequate existing tools — meaning that technological competence can quickly turn into technological illiteracy if one is not paying attention.
Further, Comment 8 requires an understanding of technology, but it does not require lawyers to become masters of technology. Comment 8 does not abrogate other provisions of Rule 1; for example, Pennsylvania Comment 2 to Rule 1 echoes the language and requirement of virtually all other jurisdictions: “Competent representation can also be provided through the association of a lawyer of established competence in the field in question.”
Lawyers, however, must have sufficient issue-spotting expertise — they must, for example, understand the difference between adding a scan of someone’s signature to a document and digitally signing it with properly validated e-signature technology. Understanding this nuance is important so lawyers can both: i) assess potential client legal issues; and ii) understand when it may be necessary to bring in additional resources with specific technological expertise.
Practical Steps for Achieving Technological Competence
Lawyers typically build specialized knowledge through classes or other structured educational events. Here, the challenge is not so much finding opportunities for education and briefings on the risks and benefits of technology, but rather sifting out the highest-value opportunities from a flood of educational programs, seminars, and hands-on workshops. Fortunately, a few broad principles can help make this task easier, such as:
1. Find an appropriate level of instruction
One of the easiest ways to lose the value of a class or meeting is if you cannot understand the subject matter. Just like college, it makes no sense to take an advanced seminar before first taking an introductory class to learn the vocabulary and basic concepts that will be covered in greater detail in subsequent classes.
In evaluating educational opportunities, check each program description for a statement of its intended audience. Better classes will generally identify their target audience with some specificity. Be skeptical of programs that say that they are helpful for anyone interested in the topic — this could be a sign that the program will be so broad and full of generalities that it ends up providing little practical guidance.
2. Look for neutral but informed presenters
Many solution-providers or vendors offer free or low-cost training on technology topics. These programs can be excellent, but many are focused on discussing specific technology issues through the filter of the proprietary tools or services offered by the solution-provider or vendor.
This can introduce bias (inadvertently or intentionally) into how topics are presented. And for those who have less experience with a specific topic, this bias may be difficult to spot and separate out from the actual subject matter. To reduce this risk, it may make more sense to look for guidance coming from more neutral presenters. Local bar associations typically offer neutral programming — and often at low cost. Non-profit legal education organizations, such as The Sedona Conference and the Electronic Discovery Institute, also offer a variety of intermediate and advanced education on technology issues.
An increasing number of law schools offer continuing legal education programs on technology and e-discovery, typically featuring practitioner instructors to maximize the practical impact of the programs.
3. Sign up for low-impact updates
As already noted, a lawyer’s ethical obligation to maintain technological competence requires regular attention. One low-cost or no-cost way to remain current on these issues is to sign up for one or more newsletters or caselaw alerts focused on the intersection of technology and the law. A number of legal technology vendors, as well as multiple law firms that wish to advertise their depth e-discovery knowledge, offer free quarterly or semi-annual newsletters that digest key case law or regulatory changes that impact the use of technology in the practice of law. It is no longer possible to track every single e-discovery case or technology-focused ethics opinion, given the never-ending fire hose of potentially relevant materials; it is, however, far easier to review a carefully curated (and much shorter) summary of cases and decisions selected by experts in the field.
For more in-depth coverage of specific topics, legal blogs (blawgs) remain a valuable (and free) source of commentary and education for deeper explorations of legal technology issues. Like electronic newsletters and alerts, these sites curate content to promote content that the authors believe is most important in their respective areas of interest.
Some legal technology blawgs are the work of a single practitioner or a single law firm; others draw from multiple authors and more closely resemble online law publications than the thoughts and voice of a single entity. The ABA periodically publishes lists of high-value blawgs, some of which focus on technology topics.
Understanding the benefits and risks of technology has become an extremely common and valuable requirement for lawyers. To date, jurisdictions that have adopted Comment 8 of the ABA Model Rules have been generally hesitant to discipline lawyers for a failure of technological competence.
More typically — for now — courts have found that litigants, not their lawyers, are liable for technology-based problems in their cases. It’s only a matter of time, however, before a lawyer faces ethics charges for failing to make good faith efforts to understand and proactively address technological challenges in the context of a client matter.