California Adopts Duty of Technological Competency

This month California did what most states have done, and adopted Comment 8 to the ABA's Model Rule 1.1. Rule 1.1 concerns the duty to provide competent representation to a client, and Comment 8 states that an attorney, "must keep abreast of all changes in law and its practice, including the benefits and risks associated with relevant technology." Comment 1 to Rule 1.1 of California's Rule of Professional Conduct as approved by California Supreme Court on March 22, 2021 uses the exact same language:

The Comment was adopted at the recommendation of the State Bar of California Task Force on Access Through Innovation of Legal Services See its complete report posted here. The report noted the following points about the new duty of technological competency:

1. A lawyer is not required to become an expert in a type of technology, but may have to engage an expert to assist her.

2. Technology should be used to make legal representation more efficient and less expensive.

3. A lawyer should not be punished for not being aware of the benefits of a technological process, only for how he or she uses technology in the representation of a client.

4. A single mistake in the use of technology will not be grounds to discipline an attorney, unless it was intentional, reckless, or grossly negligent. Repeated mistakes may provide the necessary grounds.

Colorado Change to Comment 8 on Rule 1.1

The Tip of the Night for June 28, 2020 noted while comment 8 the ABA's Model Rule 1.1 has been adopted by most states, some have changed this provision to the rule, which addresses the need to be knowledgeable about technology relevant to the practice of law.

Colorado altered comment 8 to place a special emphasis on an understanding of electronic communications.

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, and changes in communications and other relevant technologies, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

See this document showing changes to the Colorado Rules of Professional Conduct posted on the web site of the Colorado Judicial Branch. The added language is underlined and boldfaced. This modification should be considered in light of the duty to keep client information confidential under Rule 1.6.

Some States Qualify Duty of Technology Competency

The ABA's Model Rule 1.1 imposes on a duty of technology competency on attorneys, and has been adopted in most states. Comment 8 to the rule states 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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject." See the Litigation Support Tip of the Night for May 9, 2016.

Some states which have adopted these rules have qualified the language in Comment 8 requiring knowledge of legal technology.

The Supreme Court of the State of New Hampshire states in its court rules with respect to Comment 8 that:

"This broad requirement may be read to assume more time and resources than will typically be available to many lawyers. Realistically, a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers similarly situated are using."

Supreme Court of New Hampshire Order, dated Nov. 10, 2015 at p. 51, available at: https://www.courts.state.nh.us/supreme/orders/11-10-15-Order.pdf

So, a lawyer is bound to both have knowledge of the electronic discovery methods he or she uses, or those used by attorneys practicing in the same field.

In New York, Comment 8 to Rule 1.1 states that:

"To maintain the requisite knowledge and skill, a lawyer should (i) keep abreast of changes in substantive and procedural law relevant to the lawyer’s practice, (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information, and (iii) engage in continuing study and education and comply with all applicable continuing legal education requirements under 22 N.Y.C.R.R.Part 1500."

New York Rules of Professional Conduct, Effective April 1, 2009, As amended through June 1, 2018, at p. 13, available at: https://nysba.org/NYSBA/Practice%20Resources/Professional%20Standards%20for%20Attorneys/Professional%20Standards%20for%20Attorneys/Rules%20of%20Professional%20Conduct%20as%20amended%20060118.pdf

There is a special emphasis placed on keeping client data secure.