Insights: Article

A Lawyer's Duty of Technical Competence

By Isaac DeLaGarza

May 21, 2018

TECHNOLOGY COMPETENCE AND ATTORNEYS

A few years ago, a good friend and I developed curriculum for a small community college course. The content was focused on providing students with the knowledge and ability to utilize technology in full capacity. Most of the students were business owners who found themselves in difficult situations because they felt that technology was passing them by. Many of the students who attended expressed their gratitude and described how their successful use of technology helped in understanding and growing their businesses systems. Clearly, it is in the best interest of business owners to understand how they might leverage technology to grow. Similarly, hiring an attorney who can navigate relevant technology is also in one’s best interest.

DEFINING TECHNOLOGICAL DUTY OF COMPETENCE

There is a steady increase in the recognition of attorneys’ ethical technological competence. Fundamentally, in the Model Rules of Professional Conduct Rule 1.1, an attorney’s ethical duty is to provide competent representation to his or her client. While most attorneys do well to uphold these requisites and maintain ethical competence, the model rules—at the time of their writing—could not foresee the impact technology would have in the increasing globalization of the economy and the practice of law itself. The advancements in technology in the past decade have allowed lawyers to change the way they communicate, investigate, secure client information, market their services and even receive payments. In addition to the benefits technology has facilitated not only to lawyers but to the global business arena, it has spawned equally significant complications and issues for attorneys in the court room. Several formal opinions have been documented at the state level for such issues. However, it wasn’t until 2009 that this was addressed by the American Bar Association. In August of 2012, the rules were amended to include additional language that supports the ethical obligation to be technologically competent. The insertions to the language are found in Rule 1.1 comment 8. In maintaining competence, an attorney “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology .”[1] On June 28, 2017, Nebraska became the 28th state to adopt the amendment made to the Model Rule. States including Arizona, Colorado, Iowa, Kansas, Minnesota, Oklahoma, and Utah have adopted the ABA’s 2012 amendment[2].

UNDERSTANING THE TECHNOLOGICAL DUTY OF COMPETENCE

A basic understanding of technology used in the practice of law and in representing a client is required to adhere to the new amendments to the rule. Whether it’s “to secure client data, to retain investigative or paraprofessional services, or in hiring a document retention company to create and maintain information for complex eDiscovery cases, a lawyer must give appropriate instruction and take reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.[3] As previously stated, technology continues to advance the globalization of the economy. In the same way, eDiscovery has become a frequent part of litigation in modern life. As such, the lack of basic technology understanding may render an attorney ethically incompetent. The duty of technological competence does not mean that an attorney or their paralegal needs to become a technology expert, but it does require basic understanding of the technology they use to practice law and the technology employed by their clients in legal matters. They also need to understand the electronic risks and benefits afforded by those pieces of technology.

ACHIEVING TECHNOLOGICAL DUTY OF COMPETENCE

It is unlikely that technology will take a break from revolutionizing our world, and one can only expect that the required proficiencies for lawyers will also continue to grow. Just as the public seeks legal advice from a qualified attorney and not their legal assistant, a trained and vetted computer forensic expert can explain, for example, how or if documents were securely preserved and untampered better than a computer repair technician. The ability to provide basic technical and scientific explanations can be gained by consulting with trained professionals or through adequate continuing legal education sessions. Thankfully, CLE sessions on this subject are provided by many organizations including eDiscovery vendors and service providers over the internet. It is not expected that attorneys become technology experts, but it is wise to retain knowledgeable and qualified consultants. These consultants should be aware of and compatible with the ethical obligations required of attorneys, and they can assess the technological plane for identifying unforeseen issues that live between the legal and technological world.



[1] MODEL RULES OF PROF'L CONDUCT R. 1.1 Competence cmt. [8] (https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1.html)

[2] See “Another State Adopts Dufy of Technology Competence, Bringing Total To 28” Sept. 6, 2017 (https://www.lawsitesblog.com/2017/09/another-state-adopts-duty-technology-competence-bringing-total-28.html)

See “13 15 17 18 20 21 23 24 25 26 27 28 States Have Adopted Ethical Duty of Technology Competence” (https://www.lawsitesblog.com/2015/03/11-states-have-adopted-ethical-duty-of-technology-competence.html)

[3] MODEL RULES OF PROF'L CONDUCT R. 5.3 Responsibilities Regarding Nonlawyer Assistance cmt. [2] & [3] (https://www.americanbar.org/content/dam/aba/administrative/ethics_2020/2012_hod_annual_meeting_105c.authcheckdam.pdf)

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