Five years ago, the American Bar Association declared that lawyers have a duty of competency not just with regards to the law and legal practice, but to technology as well. In a 2012 update to Comment 8 of Model Rule 1.1, explaining attorneys’ duty to provide competent representation, the ABA announced that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”.
The change acknowledged the evolving face of the law, as technology alters both day-to-day practice and creates novel legal issues. In the years following, states have slowly begun adopting the ABA’s change, with 28 state bar associations, covering 53.4 percent of America’s lawyers, now recognizing attorneys’ ethical duty to be competent in technology.
That tech knowledge is necessary for competent practice shouldn’t be too surprising to most lawyers. After all, barely a week goes by without some poor law firm’s tech-related disaster making headings in the legal press, whether it’s a major eDiscovery-related data breach, a cyberattack, or simply a bad ESI agreement that leaves a client at the mercy of expensive and slow vendors. What’s at stake in such disasters isn’t just potential disciplinary action from the state bar. Reputations and client relationships can also be jeopardized by a failure to understand technology.
Conversely, more and more attorneys are realizing the benefits of technology for their practice, recognizing that the right technology can be essential to keeping clients happy, gaining a competitive advantage, and securing client confidences.
Since the ABA’s change to the Model Rule commentary, states have slowly incorporated similar duties into their rules of professional conduct, often verbatim. Delaware was the first, approving tech competency rules changes in early 2013. Nebraska is the latest, marking the 28th state to recognize that attorneys need to be proficient with technology, and aware of both its benefits and potential pitfalls, in order to provide competent representation. The Cornhusker State adopted the changes on June 28th, according to Robert Ambrogi, who is keeping a running tally of state adoption on his Law Sites blog.
States that require lawyers to maintain technological competency now include:
Together, those state bars represent 713,975 attorneys, or 53.4 percent of all 1,334,963 lawyers in the United States.
There are some notable omissions, of course. The District of Columbia, with its nearly 55,000 bar members, has not adopted a duty of technological competency, according to Ambrogi's list. This is particularly disturbing given the sensitive data government lawyers deal with and how frequently the government is subject to cyberattacks.
California, too, isn’t on the roster. The California State Bar is the second largest in the nation, with nearly 170,000 members, and it remains the only state that does not base its ethics rules on the ABA’s Model Rules.
However, though California lacks the ABA’s technological competency rule, in 2015 the California Bar issued a formal ethics opinion requiring a more narrowly focused form of technological competency: competency in eDiscovery. Under California’s Rules 3-100 and 3-110, the bar explained, competent representation requires, “at a minimum, a basic understanding of, and facility with, issues relating to e-discovery”.
Of course, lawyers don’t need the bar to tell them that technology is important. In the ABA’s 2016 Legal Technology Survey, 81.4 percent of surveyed attorneys agreed that technology training was very or somewhat important. Just 18.9 percent said that staying on top of technology was not very or not at all important.
A large number of attorneys, 70.5 percent, also have technology training available to them.
But according to analysis by Mark Rosch, that number conceals a significant divide. One-hundred percent of lawyers at firms with more than 500 lawyers and 96 percent of attorneys at firms with 100-499 lawyers had easy access to training. For small firms with two to nine attorneys, only 64.7 percent of lawyers reported access to training. For solos, that number was only 54.3 percent.
This is particularly troubling because, as we see time and time again, that difference in technological competency, can make or break cases—regardless of whether your state bar has a tech competency requirement or not. Failure to understand discovery can lead lawyers to expose their clients to huge, unnecessary costs and put them at a strategic disadvantage. Failure to understand technology can lead to the inadvertent release of sensitive and embarrassing client data. It’s not just individual matters that are put at risk here, but careers.
Thankfully, there are a wealth of resources available to attorneys. Attorneys can take online CLE courses for legal professionals, learn about legal technologies, follow legal blogs, read white papers and guides, and more—often for no cost at all. These resources are well worth checking out, whether you’re in Lincoln, Nebraska, or Capitol Hill, as those legal professionals best able to understand and leverage are increasingly finding themselves with an advantage over their less tech-savvy colleagues.