Recent State Developments on The Ethical Duty to Stay Up-to-Date on Technology

With lawyers’ increasing reliance on technology, including cloud computing, mobile devices, social media, and predictive coding, a working knowledge of technology is essential to the competent practice of law.

In August 2012, the American Bar Association (ABA) codified this distinction when it amended Comment 8 to Rule 1.1 of the Model Rules of Professional Conduct, which addresses lawyer competence. The rule provides that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The revised comment states that “[t]o 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).

When it suggested revising Comment 8, the ABA Commission on Ethics 20/20 explained that the proposed amendment “does not impose any new obligations on lawyers. Rather, the amendment is intended to emphasize that a lawyer 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.” Although this remark seems to water down the effect of the amendment, lawyers would be remiss to ignore that the competent use of technology affects lawyers’ ability to abide by other ethical rules, such as maintaining client confidences.

In 2013, several states have followed the ABA’s lead. For example, the Pennsylvania Supreme Court recently amended the Pennsylvania Rules of Professional Conduct to mirror ABA Rule 1.1, requiring lawyers to understand the “benefits and risks associated with technology” to comply with their obligation to provide competent legal representation to clients. The amended rules became effective in November.

Similarly, the Massachusetts Supreme Judicial Court’s Standing Advisory Committee on the Rules of Professional Conduct published proposed revisions to the state’s professional conduct rules that reflect the ABA’s rule. If approved, the revised comment to Massachusetts Rule 1.1 would read: “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, and engage in continuing study and education.” Additional amendments and ethical opinions will undoubtedly follow.

Based on these recent state developments, attorneys must fulfill their obligation to maintain a working knowledge of relevant technology—and to associate with technology and discovery experts who can fill in any gaps—in order to provide competent representation.

Rob Hellewell is vice president at Conduent. He can be reached at info@conduent.com.