Exploring the Ethical Duty of Technology Competence, Part I
9 March, 2017
By Ivy B. Grey
Tech Savvy Is a Requirement, Not an Option
This is not yet another article about e-discovery. We will not discuss confidentiality issues. Technology competence is broad, it is more than data security, it is more than e-discovery—it is about everything that lawyers do and every tool that we use to serve our clients.
This series will focus on the ethics of technology competency. Competency directly relates to performing our duties as an attorney (Model Rule 1.1) and indirectly relates to fees and billing (Model Rule 1.5). Our ethical duties require us to do more than just to maintain client confidences, therefore our duty to be technologically competent must extend beyond confidentiality, too. A lawyer must be competent in all matters reasonably necessary for the representation.
Technology is becoming increasingly important in the business and practice of law, as evidenced by the ABA Ethics 20/20 Commission (the “Commission”) which studied technology in law and then revised ABA Model Rules of Professional Conduct (the “Model Rules”) accordingly. States started adopting revised Model Rule 1.1 in 2013, with the first state being Delaware on March 1, 2013. The most recent state to adopt the rule was Colorado on December 28, 2016. At the time of drafting, 26 states had adopted some version of the new Model Rule. In addition, California and New Hampshire have not adopted the Model Rules, but have made other efforts to acknowledge a duty of competence.
On January 1, 2017, Florida became the first state to require technology training as part of its continuing legal education (“CLE”) requirement. Now attorneys licensed in Florida must obtain three additional hours of technology CLE during each three-year reporting cycle. Though Florida is the first state to take the additional step of requiring attorneys to complete technology CLE courses, it probably won’t be the only one for long.
Technological Competence is a Mandate, Not an Option
Updating the Existing Duty of Competence
A lawyer’s fundamental duty has always been to provide competent representation to her client. In the past, lawyers thought of competence as focused solely on the substantive knowledge of a certain area of law combined with the experience and ability to adequately represent a client in a specific engagement. As times changed, so did the view of what it meant to be competent.
The technology update does not change the duty to maintain competence under Model Rule 1.1, it merely clarifies that maintaining technological competence is part of meeting that duty. In short: lawyers can no longer be proudly unaware of technology and still claim to ethically serve their clients’ needs.
Model Rule 1.1 provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” And now Comment 8 to Model Rule 1.1 provides: “ 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 [CLE] requirements to which the lawyer is subject.”
It is most beneficial to view the amendment to Comment 8 as a codification of changes to the practice of law that have already occurred. Lawyers were keeping up with technology because life was keeping up with technology. Eventually the technology of life made its way into the practice of law. Comment 8 merely makes the duty to stay abreast of technology explicit—for attorneys who were not actively resisting technology, this rule is not new.
Becoming Technologically Competent
Competence does not mean perfection, expertise, or paranoia. It does not mean that lawyers must now become early adopters, anxious to discover, purchase, and learn every possible new piece of legal tech. But it does require a baseline understanding of, and reasonable proficiency in, the technology at hand. Of course, specific proficiencies and competencies will vary between lawyers and practice areas.
If a lawyer is incompetent, the lawyer has three choices:
- Sufficiently learn the necessary information before undertaking the matter.
- Associate or consult with technical consultants and competent counsel.
- Decline the representation.
Lawyers may seek help in meeting their duty of competence. But they may not delegate all technology duties to others in their firm. This would be an abdication of their responsibility to understand technology.
Stop Looking Backward: Resistance is Futile
There’s a temptation to resist change, especially in law. However, arguing that this rule requires lawyers to become experts or to become their own IT departments is intellectually dishonest. It is clear that expertise is not required. Similarly, arguing that it’s acceptable to hunt and peck on a keyboard and barely able to format a document to meet court requirements also ridiculous. Any lawyer who relies on these arguments to avoid learning is setting herself up for ethical violations, such as suspension or disbarment.
Importantly, Model Rule 1.1 is elastic. It is currently expanding as legal technology solutions expand. The ever-changing shape of this rule makes clear that a lawyer cannot simply learn technology today and never again update their skills or knowledge. There is a continuing duty to learn about technology.
Identifying Technology in Your Practice
Technology is now a major part of the practice of law. And competence is more about the tools that lawyers use to practice law than the substance of the law that we practice. The software that we use in the business of law is necessarily included in the mandate. There are no longer any business, practical, or ethical excuses that lawyers can make to avoid learning about, understanding, and adopting technology. Lawyers who refuse to keep up with modern technology risk violating ethical obligations and face becoming obsolete.
No state has published a list of technology programs that lawyers must learn or skills that lawyers must possess. However, if such a list were to be made, it would include case management software, document management software, billing software, email, a PDF system with redacting capabilities, and the MS Office Suite, particularly MS Word. All lawyers will use these programs, particularly MS Word, because all lawyers write—regardless of practice area. Any lawyer who does not have basic skills in these six types of software is risking ethical rebuke.
Start Looking Forward: A Deep Dive in Part II
Now that there is a duty to develop and maintain technology competence, failure to make a plan to keep up with technology invites clients to bring malpractice suits and file ethics claims against their lawyers. So start thinking about the tools that you use. Part II of this series sets forth and supports the bold assertion that inability to use MS Word effectively may constitute a violation of your ethical duties. The standard for acceptable minimum proficiency in programs that lawyers use every day has been raised. Knowingly wasting client time and money due to lack of computer skills is unacceptable. While maximum efficiency is not required, it is past time to recognize that lawyers must truly learn the tools of the trade. Click to read Part II now.
Ivy B. Grey is the author of American Legal Style for PerfectIt, which is a proofreading and editing program for lawyers that runs inside of MS Word. It adds polish, reduces frustration, and saves non-billable time. Ms. Grey is also a Senior Attorney at Griffin Hamersky LLP. She's been named as a Rising Star in the New York Metro Area for four consecutive years, and her significant representations include In re AMR Corp. (American Airlines), In re Dewey & LeBoeuf LLP, In re Eastman Kodak Company, and In re Filmed Entertainment Inc. (Columbia House).
This article was originally published in Law Technology Today on March 8, 2017. Last updated June 26, 2017.