40th State Adopts a Duty of Technological Competence – Is It a Good Idea?

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Although the ABA’s “technological competence” standard is a good “first step,” it could be improved.  Simply telling attorneys “be competent” – – with no further guidance or implementation – – does little to advance the ball.  Several articles make this point and suggest the need for additional specificity, education, and greater emphasis on the relevancy limit of the ABA provision. E.g., Katy (Yin Yee) Ho, “Defining the Contours of an Ethical Duty of Technological Competence,” 30 Georgetown J. Leg. Ethics 853, 854 (2017); Lori D. Johnson, “Navigating Technology Competence in Transactional Practice,” 65 Vill. L. Rev. 159, 172 (2020).

The ABA Journal reports that Hawaii was the 40th State to adopt an express duty of technological competence for lawyers.  Amanda Robert, Hawaii joins states that mandate lawyers’ competence in technology (abajournal.com) (Mar. 25, 2022), citing Bob Ambrogi, Another State Adopts Duty of Technology Competence for Lawyers, Bringing Total to 40 | LawSites (lawnext.com) (Mar. 24, 2022).

Maryland is not one of those states, although the majority view is that the duty of technology competence is already implied in the current rules.[1]

The rules-based, technological competency requirement for lawyers began when “[t]he ABA approved an amendment to the Model Rules of Professional Conduct in 2012, to reinforce the principle that lawyers have a duty to be competent in technology.”  See ABA Commission on Ethics 20/20.[2]

The primary text is Comment [8] to ABA Model Rule 1.1, which added an express reference to “technology,” stating 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.” [emphasis added].

The ABA Commission on Ethics 20/20 explained that the reference was added because of the “sometimes bewildering pace of technological change.”  The Commission wrote that the duty was “implicit” in Comment [6]; however, the Commission felt it was important to make the duty “explicit.”

I ask whether – without more – an express “technology competency” amendment adds much.  Certainly, there has been controversy over the amendment.  In fact, in some states, the proposed addition has led to a “firestorm.”  S. Nelson and J. Simek, Why Do Lawyers Resist Ethical Rules Requiring Competence with Technology? – Slaw (Mar. 27, 2015). There are many questions.

First, as noted above, it is generally agreed that ABA Model Rule 1.1 has long included a requirement of competent representation.  Prior to 2012, however, technology was not mentioned.  A. Perlman, ABA: The Twenty-First Century Lawyer’s Evolving Ethical Duty of Competence, The Professional Lawyer, 2014 (michbar.org) (2014), 1.  When the technological competence requirement was added in 2012, it was placed in a “comment,” not in the text.  The ABA 20/20 Commission’s “work is silent as to this placement decision.”  Johnson, “Navigating Technology Competence,” 65 Vill. L. Rev. at 172.  Generally, “comments do not ‘add obligations’ to the Model Rules, and ‘the text of each Rule is authoritative.’” Id.; accord Md. Rule 19-300.1. It seems likely that this non-textual addition is surplusage both because it is redundant and due to its placement.[3]

Second, the “laboratories of federalism” have adopted differing versions of the duty.  “[S]everal of the states that have adopted Comment 8 have taken different positions on whether to adopt it verbatim, or to edit, limit, or expand the language provided by the Commission.”  Johnson, “Navigating Technology Competence,” 65 Vill. L. Rev. at 172. Some of the difference is whether the duty is mandatory or aspirational.  Given these differences, it is less than clear what the “best practice” would be.[4]

Third, the contours of the new duty are unclear. Generally, a “duty” is “[a] legal obligation that is owed or due to another and that needs to be satisfied; that which one is bound to do….”[5]  However, as Tad Simons asked: “But for a lawyer, what does technical competence mean?”  He wrote that “it constitutes the vaguest possible call for lawyers to recognize the increasingly important role technology plays in the practice of law,” and added:

“Competence” is the word most commonly used to describe the level of technical proficiency a lawyer is duty-bound to maintain. No one knows precisely what that means, however — only that it is important enough to worry about…. The question no one can answer is: What does a lawyer really need to know about technology?…. [emphasis added].

That is a good question.  If a “duty” cannot be clearly defined, is it a duty?  Articles on technological competence run the gamut from the so-called “Duty to Google,”[6] to handling ESI in litigation; information governance; cybersecurity; and, they include cryptocurrency; social media;[7] cloud technology; virtual meetings; court e-filing rules; technology assisted review;[8] security of email communications; avoiding scam email schemes; business transactions;[9] encryption; ephemeral messaging; outsourcing; and more.

Fourth, my concern with adopting an express, but vague, requirement of technological competence is that it will further “weaponize” e-discovery.[10]  There is reason to be concerned. For example, one author suggested the use of sanctions to implement the duty: “The firms lagging far enough behind in technological competence may not even know they are lagging behind. Sanctions will send that message….”  Murphy, “Discovery Sanctions for Luddite Lawyers,” 25 Geo. Mason L. Rev. at 74–75 (emphasis added).  The author wrote that: “Sanctioning lawyers who refuse to keep up with technology will force luddites to operate at a professional level….”  Id. at 76.[11]

Despite these concerns, I am not opposed to requiring technological competence.  It is a good idea. But, in my opinion, telling attorneys “be competent” with no further guidance or implementation does not go far enough.

True wisdom is knowing what you don’t know.” — Confucius.

Initially, it is important to acknowledge and re-emphasize that the 2012 ABA provision is a good first step.  Ho, “Defining the Contours of an Ethical Duty,” 30 Georgetown J. Leg. Ethics at 854.

Several improvements have been proposed.

First, as Ms. Ho posits, there is a need for more specificity.[12]  Ms. Ho maintains that the ABA “should define the contours of the ethical duty by providing specific guidance for attorneys to help define this duty and its scope.”  She explains:

Attorneys cannot fulfill their duty of competence if they do not know what it entails…. The discussion in the legal community should not be focused on whether such a duty is necessary in the legal profession, but rather to what extent this duty should be defined and imposed upon an attorney…. [M]ere recognition of the importance of technology is an inadequate response. Rather, the ABA should take a larger leap forward by adopting a disciplined approach to rule-making and balancing the need to address challenges brought by technology with the necessity of maintaining flexibility to address future changes. The ABA should define the contours of an ethical duty of technological competence and provide guidelines as to the scope of the duty surrounding the interplay of technology and legal practice. This would provide attorneys with notice of incompetent behavior, and allow attorneys to truly be zealous advocates for their clients in a modern world.

Id. at 871 (emphasis added).

Second, while the rule directs lawyers to “engage in continuing study and education,” it is only aspirational and a one-hour “check the box” seminar is insufficient.[13]  As one noted commentator wrote: “One aspect we hear little about is how lawyers can get and remain technologically competent. There are no easy answers to that question.” R. Ambrogi, OK, We Get Technology Competence, But How Do We Get Technologically Competent? – Above the Law (Nov. 6,  2017).  There should be additional education through law schools, bar associations, and e-discovery vendors.

As to law schools see The Need for Law School Classes in Discovery Procedures.[14] One author notes:

Today, the lack of legal technology requirements in law school curricula is remarkable. The ABA should revisit its standards for law school accreditation and incorporate legal technology into the required curriculum. This would harmonize law school curricula with the duty of technological competence that the ABA has already articulated under the Model Rules.  It is strange indeed that the ABA’s own mandates are out of sync in this respect. Chief Justice Burger would likely agree: just as “no medical graduate can leave the medical school, hang up a shingle, and immediately begin treating patients or performing surgery” without learning or experiencing the tools of the trade, the same should apply with respect to law graduates.

Christopher A. Suarez, “Disruptive Legal Technology, Covid-19, and Resilience in the Profession,” 72 S.C. L. Rev. 393, 436 (2020); accord Craig Ball, The Conundrum of Competence in E-Discovery: Need Input | Ball in your Court (craigball.net) (May 6, 2019)(“Requiring competence is just part of the solution to the competence crisis.  The balance comes from supplying the education and training needed to become competent.  You can’t just order someone who’s lost to “get there;” you must show them the way.  In this, the bar associations and, to a lesser extent, the law schools have not just failed; they’ve not tried to succeed.”).

To the same effect, regarding bar associations, “[t]he state bars have also done little to emphasize the importance of legal technology…. [O]nly two states — Florida and North Carolina — require their members to maintain some measure of continuing legal education on legal technology.” Id.;  In re Amends. to Rules Regulating The Fla. Bar 4-1.1, 6-10.3, 200 So. 3d 1225, 1226 (Fla. 2016) (imposing CLE requirement of three hours every three years).

Third, the rule makers should re-emphasize that technological competence is focused only on “relevant technology” under Comment [8]. The word “relevant” was added late in the drafting process.  It lacks clarity and has been glossed over by some:

[T]he [ABA Committee’s] meeting minutes and the Introduction are silent as to why the term “relevant” was added, and similarly silent as to the application of the term. It remains unclear if the technology with regard to which a lawyer must maintain competence should be relevant to the lawyer’s practice, firm, industry, client, or some other area. This lack of clarity impacts the enforcement of the rule and precipitates some of the problems in directly applying Comment 8….

Johnson, “Navigating Technology Competence,” 65 Vill. L. Rev. at 169.  This lack of clarity is reflected in an article by an Assistant Bar Counsel of the Maryland Attorney Grievance Commission that seems to ignore the word “relevant”:

But say the extent of your cloud computing is limited to the free 5GB that Apple gives you. Are you required to learn more about the cloud? (Do you even understand how your 5GB works?) If your law practice isn’t pushing towards the 22nd century, are you required to keep yourself abreast of technology you believe that you will never conceivably use? Absolutely.

 James N. Gaither, “Are You E-Competent?,” 47 Md. Bar J. 51, 52 (Jan./Feb. 2014) (emphasis added).[15]

In my opinion, in most situations that approach does not make sense. It removes the additional word “relevant” from the text of Comment [8]. Nor would it be proportionate and proportionality should always be a lodestar.

Re-focusing on, and clarifying, “relevance” could ameliorate many of the concerns with Comment [8].[16]  For example, cryptocurrency is irrelevant to many practices.  There is no need to be technologically competent on irrelevant technology.  To the same effect, many transactional attorneys may not need competence on litigation review platforms, such as Relativity or Digital WarRoom.  Similarly, the use of collaboration software, such as Microsoft Teams or Slack,  or ephemeral messaging, may be inapplicable to many practices. On the other hand, security of email communications likely cuts across-the-board and has general applicability. “Relevance” should be a touchstone.

At bottom, forty states have found it appropriate to adopt a version of the 2012 ABA provision.  That is a powerful vote of confidence in it, and “technology competence” as a goal is a positive first step; however, additional steps would be an improvement.

______

[1] See P. Raschke, “A Maryland Attorney’s Ethical Obligations in Handling ESI,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 479; Md. Rule 19-301.1, Comment [6].

[2] Many other professions also require technological competence.  E.g., Tang v. City of Seattle, 194 Wash. App. 1054 n. 14 (2016)(professional engineers);  l Ohio Admin. Code 4757-5-13 (teletherapists); Wash. Admin. Code 196-33-200 (wastewater treatment licensees);  Ga. Comp. R. & Regs. 510-5-.07 (telepsychologists).

[3] As to redundancy:

“The proposed amendment … does not impose any new obligations on lawyers,” the Commission’s report said. “Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.”

Patricia A. Sallen, “Technology Competence: New Wine in an Old Ethical Bottle: Lawyers Can No Longer Swear Off the Sauce of Technology,” ABA Law Prac., March/April 2016, at 34, 37; accord Michael D. McCabe, Jr., What They Didn’t Teach In Law School: The Ethical Duty Of “Technical Competence” – IPethics & INsights (ipethicslaw.com) (McCabe/Ali LLP)(citing authority from 2008); Michael T. Murphy, “Just and Speedy: On Civil Sanctions for Luddite Lawyers,” 25 Geo. Mason L. Rev. 36, 43 (2017)(quoting Prof. James Moliterno: “The proposed changes do not change.”); contra John Browning, The New Duty of Tech Competence in Texas: Staying Ethical and Competent in the Digital Age, 89 The Advoc. (Texas) 26, 26 (2019)(describing addition as a “sea change”).

[4] See Tad Simons, For a Lawyer, What Does “Technological Competence” Really Mean? (thomsonreuters.com) (Apr. 20, 2018) (describing variations); Johnson, “Navigating Technology Competence,” 65 Vill. L. Rev. at 173 (same); Amy B. Cyphert, “A Human Being Wrote This Law Review Article: Gpt-3 and the Practice of Law,” 55 U.C. Davis L. Rev. 401, 426-27 (2021)(same); “Litigation, Technology, and Ethics: The Importance of Technological Competence,” Practical Law Article 5-575-6745 (same).

[5] Black’s Law Dictionary (11th ed. 2019).

[6] Michael T. Murphy, “The Search for Clarity in an Attorney’s Duty to Google,” 18 Legal Comm. & Rhetoric: JALWD 133, 133 (2021)(“This Duty to Google contemplates that certain readily available information on the public Internet about a legal matter is so easily accessible that it must be discovered, collected, and examined by an attorney, or else that attorney is acting unethically, committing malpractice, or both.”).  “So the Duty to Google really is one of technological competence….” Id. at 142.  However, the “duty” is not limited to Google: “On that note, the Duty to Google facts has extended into searching social media.”  Id.

[7] “[W]e want to use LinkedIn as a model of how to think about the duty of technology competence…. Realistically, the practical risk that a lawyer will be disbarred or suspended for failing to meet the technology competence requirement with respect to LinkedIn is quite low. The greater risk will be in malpractice, when a client believes that a lawyer missed important facts available through LinkedIn (although the duty of technology competence may come into play when assessing whether malpractice was, in fact, committed)….”  Dennis Kennedy & Allison C. Shields, “Making Better Use of Linkedin (Part 2) Business Intelligence and Technology Competence,” Mich. B.J., March 2020, at 50, 51.

[8] For example, one legal journal suggests: “In order to be in compliance with the rule, an attorney involved in litigation must keep up with the legal changes surrounding predictive coding.”  Lauren Kellerhouse, “Comment 8 of Rule 1.1: The Implications of Technological Competence on Investigation, Discovery, and Client Security,” 40 J. Legal Prof. 291, 299 (2016).  Another suggests: “Judges and lawyers have the duty of technology competence, which includes competence in artificial intelligence (‘AI’).”  Mark L. Shope, “Lawyer and Judicial Competency in the Era of Artificial Intelligence: Ethical Requirements for Documenting Datasets and Machine Learning Models,” 34 Geo. J. Legal Ethics 191, 192 (2021).

[9] Johnson, “Navigating Technology Competence,” 65 Vill. L. Rev. at 185.

[10] As to “weaponization” generally, see What Does “The Making of a Surgeon” Have to Do With ESI and “Software Glitches?” (“civil litigators could obtain a tactical advantage by alleging deficiencies in the performance of opposing counsel”).

[11] Admittedly, my concern about sanctions does not appear to have materialized.  Kennedy, Making Better Use of Linkedin (Part 2), Mich. B.J., March 2020, at 50, 51 (“As of the time of this writing, we have not been able to locate a published disciplinary opinion where a lawyer was disciplined solely for failure to meet the duty of technology competence.”); see generally Md. Rule 19-300.1.  That, however, may be due to fact that there are many other sources of the power to impose sanctions, e.g., Fed.R.Civ.P. 37(e).

[12] Ho, “Defining the Contours,” 30 Georgetown J. Leg. Ethics at 854, 867; accord Johnson, “Navigating Technology Competence,” 65 Vill. L. Rev. at 185.

[13] Larry Zimmerman, “Mandatory Technology Cle-Yes or No?, “J. Kan. B. Ass’n, July/August 2019, at 18 (“A one-hour CLE credit requirement for technology training underestimates the difficulty of obtaining technological competence.”); Johnson, “Navigating Technology Competence,” 65 Vill. L. Rev. at 186 (criticizing a “check the box” approach to CLE).

[14] I co-teach a three-credit seminar titled “Civil Discovery in the Digital Age” at the University of Baltimore School of Law.

[15] While not stated on Westlaw, presumably this was an individual opinion and not that of the Attorney Grievance Commission.

[16] See Johnson, “Navigating Technology Competence,” 65 Vill. L. Rev. at 186; accord, The Hon. John M. Facciola, “A Judicial Perspective: Technological Competence and the Law Schools,” Journal of the Professional Lawyer (West 2015), at 119, 122 (both suggesting a focus on “relevant” technology).

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