ETHICS CORNER - REQUIREMENT OF TECHNOLOGICAL COMPETENCE

Much has been written about the proposals released for comment by The ABA Commission on Ethics 20/20 recommending Amendments to various aspects of the Model Rules of Professional Conduct. Since the comment period expires on November 30, 2011, those interested in providing input still have an opportunity. Click here for the proposals. 

Recognizing the growing impact of technology on the practice of law, the Commission devoted a great deal of attention to the areas of Technology and Confidentiality as well as Technology and Client Development. The fundamental topic of attorney competence is one of the first addressed.

Although the text of Model Rule 1.1* relating to Competence would remain the same under the Amendments, Comment 6 (Maintaining Competence) would be revised as follows: “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 technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” (Underlined language represents the insertions made by the Commission.)

Attorneys who continue to stick their heads in the sand regarding technological developments and concepts could be in for a rude awakening. Those who fail to keep up with the times could very well inadvertently violate their ethical duties. These violations could include transgressions such as maintaining a weak password, neglecting to utilize a metadata scrubber or ignoring the internet as a discovery tool.   

The message is clear - mastering substantive law is not enough. All lawyers must acquire technological skill in order to continue serving clients efficiently AND ethically.

*Model Rule 1.1 provides “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”