By: Caroline Grossweiler,

The past few decades have been filled with significant technology advancements. While almost all professions have had to adapt to this technology change, lawyers are experiencing a unique challenge. Lawyers are bound by a duty of competence, which may subject them to additional, more severe pressures to keep up with technological advancements.[1]

The duty of technology competence was first encountered in 2012 when the American Bar Association formally approved a change to the Model Rules of Professional Conduct to require that lawyers have a duty to be competent not only in the law and its practice, but also in technology.[2] However, the Model Rules are a suggested framework for the ethical practice of law; states can choose to adopt or not to adopt these rules.[3]

Whether or not the duty of technology competence has been adopted in a specific state, states generally agree that this duty exists in some form.[4] As of March 2018, 31 states have formally adopted the rule of a lawyer’s duty to be technologically competent.[5] Regardless of formal adoption of the rule, the general concept in support of a duty of technology competence is premised on the belief that “… as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes.”[6] But, this begs the question: How do we get lawyers to become technologically competent?

One approach, taken only by Florida, is to formally educate lawyers on changing technologies.[7] Florida is one of the 31 states that have adopted the duty of technology competence, but more significantly, became the first state to require technology CLE for lawyers.[8]

Another approach, taken by Illinois and New York, focuses on tools and services that can be given to lawyers in order to answer their specific concerns.[9] “…Illinois focuses … on helping lawyers with their technological needs as they come up.”[10] Illinois does not think CLE requirements for technology are an appropriate response to the concern, and that state bar associations should be able to trust lawyers to take CLEs in areas where they need more education.[11] New York focuses on helping lawyers by giving them the tools they need to be technologically competent; CLE classes are not one of these tools.[12]

In conclusion, while states agree that lawyers should probably be technologically competent, no one really agrees on how to achieve this goal. Within the next decade or so, it would not be surprising to see additional methods other than the ones listed in this article arise out of other states. One of the main concerns the American Bar Association and each state bar association should have when making these judgments is this: How can we set up our profession to comply with the ever-changing technology while not unduly burdening lawyers? With this focus in mind, lawyers will be able to swiftly adapt to technology as it grows.

 

[1] See Model Rules of Prof’l Conduct, r. 1.1 (Am. Bar Ass’n 1983).

[2] See Model Rules of Prof’l Conduct, r. 1.1, cmt. (Am. Bar Ass’n 1983).

[3] See Model Rules of Prof’l Conduct, Preamble and Scope (Am. Bar Ass’n 1983).

[4] See Robert Ambrogi, 31 States Have Adopted Ethical Duty of Technology Competence, LawSites (Mar. 16, 2015), https://www.lawsitesblog.com/2015-01/11-states-have-adopted-ethical-duty-of-technology-competence.html.

[5] See id.

[6] Id.

[7] See generally Robert Ambrogi, Florida Becomes First State to Mandate Tech CLE, LawSites (Oct. 3, 2016), https://www.lawsitesblog.com/2016/10/florida-becomes-first-state-mandate-tech-cle.html (discussing Florida’s use of Continuing Legal Education (“CLE”) to address technology changes).

[8] See id.

[9] See Victor Li, Florida Requires Lawyers to Include Tech in CLE, ABA Journal (Feb. 2017, www.abajournal.com/magazine/article/technology_training_cle/).

[10] Id.

[11] See id.

[12] See id.

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