Over the past couple of decades, many routine daily activities and the practice of law increasingly require the use of sophisticated technology. Chances are you’re reading this posting on your computer, a tablet, or a smartphone, and not likely reading it on paper. Lawyers use email to communicate with clients, opposing counsel, expert witnesses, and courts. They make court filings online, and gather, preserve, and review electronic evidence from computers, social media, and email. Technology has long outpaced the law and rules governing its use and application, but the law is catching up.
In 2012, the American Bar Association added one line to a comment on its Model Rule 1.1 of Professional Conduct that directly addressed the issue. Comment 8 reads in part, “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.”
While that rule – the duty of competence – has always required lawyers to maintain the requisite legal knowledge and skill to represent their clients, it now requires technological competence as well. Most states have adopted this rule, or one much like it. Pennsylvania adopted it verbatim in 2013. (204 Pa. Code Rule 1.1, Comment 8). But how has it been applied? And what kinds of technology are implicated?
We’ve seen the courts require the use of technology in litigation. For example, much has been written about the “broiler chicken” case and the use of technology-assisted review (TAR) generally. But not every case involves massive litigation. And e-discovery, of course, is not the only type of technology application in use by lawyers in representing their clients.
When it adopted the updated duty of technology competence in 2016, Florida simultaneously adopted a new continuing legal education (CLE) requirement in technology. It requires three hours of CLE every three years. In 2018, North Carolina became the second state to adopt a “technology training” CLE requirement – one hour per year. The North Carolina Supreme Court has even, helpfully, listed the types of technology training that may satisfy the requirement, which include:
- an IT tool, process, methodology;
- social media evidence investigation, collection, admission;
- electronic filing of legal documents;
- digital forensics;
- practice management software.
Pennsylvania is on the verge of adopting a similar CLE requirement. The Pennsylvania Bar Association recently recommended a one hour, every two years technology competence requirement, which is currently under consideration by the Pennsylvania Supreme Court. (“Will Pennsylvania Soon Have a Technology CLE Requirement?”)
With all the ways we and the practice of law have become dependent on technology, this is a useful exercise. It is no longer sufficient to merely know the law in order to provide the best counsel to clients. In fact, it has become unethical to avoid technology in legal practice, particularly considering how its use can make the practice of law more efficient, accurate, and insightful.