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The Ethical Duty of Technology Competence – The Day is Coming in California

Posted on: December 5th, 2019

By: Renata Hoddinott

Recognizing the emergence of technology, its impact on the practice of law, and the importance of lawyers understanding technology, the American Bar Association modified its Model Rules in 2012 to make clear a lawyer’s duty of competence includes both a substantive knowledge of the law and the competent use of technology. ABA Model Rule 1.1 Comment 8 provides, in part, that, “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.”

Since then, 38 states* have now adopted some version of Comment 8. In 2016, Florida went even further and became the first state to require lawyers to complete three hours of continuing legal education on technology every three years. In 2019, North Carolina followed suit and requires lawyers to complete one hour of continuing education devoted to technology training every year.

But where California normally leads the nation in many areas, in this it is in the minority of hold-out states which have not adopted a version of Comment 8. While the State Bar of California’s Standing Committee on Professional Responsibility and Conduct has issued several opinions involving technology to date, California has not yet expressly referred to a technology component of a lawyer’s duty of competence in its Rules of Professional Conduct.

There are constantly emerging technologies to assist lawyers in delivering legal services to their clients. In the past, lawyers were deemed competent based on their experience and knowledge of a substantive area of law. As technology evolved, so too did the concept of competence. Types of  technology used  by today’s lawyers include the technology used to run a law firm and practice, case management software, billing software, and email, as well as data security to protect client confidentiality, technology used to present information to the court, electronic discovery, saving client information in the cloud and other third-party service platforms, and the use of social media such as Facebook, LinkedIn, and blogs. There is also the growing area of artificial intelligence or AI which is transforming the way lawyers and law firms perform legal research, due diligence, document review, and even more.

While these technologies offer many benefits to help increase efficiency, minimize mistakes, and decrease labor costs, there are also associated risks and pitfalls. Technology competence includes an understanding of the technology a lawyer currently utilizes in his or her practice, the additional technology available, and the technology that a client or prospective client uses or owns. Lawyers who are not technologically competent may be putting their clients and themselves at a disadvantage, as well as potentially risking a malpractice action in certain cases.

Attorneys must recognize the ways in which technology influences the practice of law in California. While it is not yet mandated as in many other states, that day is coming soon. And while technology continues to advance faster than developments in California law, lawyers should consider their duties of competence, diligence, supervision, and maintaining confidentiality when implementing and using technology.

*The states which have adopted some version of Comment 8 are: Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

If you have any questions or would like more information, please contact Renata Hoddinott at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.

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