With new ABA ethics rule, there's no more hiding from technology

Issue October 2012 By Robert J. Ambrogi

The legal profession underwent a sea change last month, but few lawyers even knew about it. In a historic but little-heralded move, the American Bar Association said that lawyers must be competent not only in the law and its practice, but also in technology.

The ABA's House of Delegates, meeting in August, voted to amend the comment to its Model Rule of Professional Conduct governing lawyer competence to make clear that a lawyer's skill set must include technology.

The rule itself, Rule 1.1, remains unchanged. It says: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

The change was to the comment that follows the rule, which provides interpretative guidance as to the rule's application and meaning. The revised comment adds the clause shown in italics here:

"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 not binding on lawyers, the ABA Model Rules serve as models for the ethics rules in most states. Only time will tell whether state ethics regulators will adopt this change, but I predict most will.

The change regarding competence was one of several amendments to the model rules approved at the annual meeting. The changes resulted from the work of the ABA Commission on Ethics 20/20, which spent three years reviewing legal ethics rules in light of advances in legal technology and the increasing globalization of the legal profession.

Too little, too late?

There are some who argue that this urging of technological competence is too little, too late. It is hard to argue with that position. Although the 20/20 Commission's report alluded to "the sometimes bewildering pace of technological change," the fact is that lawyers have been using PCs since the late 1970s and the Internet for at least two decades.

Still, the pace of technological change has accelerated in recent years, driven by our increasingly digital culture and an unprecedented degree of digital mobility. And, even in the face of so much change, Luddites remain. Just recently, a lawyer told me that he refuses to use email in his law practice and he has no idea what a blog is. It is one thing to draw a line in the sand, but it is something else altogether to bury your head in it.

Interestingly, the 20/20 Commission takes the position that this duty of technological competence is nothing new. "Comment [6] already encompasses an obligation to remain aware of changes in technology that affect law practice," the commission says in its report to the ABA. "The proposed amendment … does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology."

Luddites need not apply

That assertion may come as a surprise to many lawyers. But for lawyers in areas of practice that rely heavily on technology - such as electronic discovery - the need to be competent in technology should be obvious. It is impossible to competently (let alone zealously) represent a client in a matter involving electronically stored information without a better-than-average familiarity with technology. You cannot be both a Luddite and an advocate in e-discovery - at least not for long.

In fact, some argue that the 2006 e-discovery amendments to the Federal Rules of Civil Procedure already imposed on lawyers who handle e-discovery a duty of technological competence. A 2008 article by the legal ethics counsel for the District of Columbia Bar, "R U Competent?" made this point, citing a 2008 ABA report that concluded that the FRCP changes required lawyers to understand their clients' IT systems, know how to identify ESI, and have knowledge regarding digital file formats, sources of electronic data, and how computers operate.

Note that I said that the need for technological competence in e-discovery and certain other fields should be obvious. Regrettably, it isn't always so. As I said above, many lawyers choose to stick their heads in the sand when it comes to anything involving technology - even when the technology benefits both them and their clients.

And let's also face the fact that this stuff isn't always easy. With reference to e-discovery, U.S. Magistrate Judge John M. Facciola, a Washington, D.C. jurist who is considered a leading authority in the field, has described the complexity of just one aspect of e-discovery - search - as taking legal professionals into an area "where angels fear to tread."

Fortunately, the ABA rule does not require that we all run out and enroll in advanced courses at MIT. We can understand the "benefits and risks" of technology without understanding its most-intricate inner workings. I have long believed that a key to technological competence is knowing what you do not know. Lawyers do not have to be IT professionals or engineers - but they need to know when they need one.

Of course, even knowing what you do not know requires a higher level of understanding about technology than many lawyers have today. That is why this rule amendment from the ABA is welcome, if overdue. While I can't argue with those who say this is "too little, too late," I prefer to view it as "better late than never." Maybe this official pronouncement from the ABA will force a few lawyers to pull their heads out of the sand.

Robert J. Ambrogi is a lawyer and media consultant based in Rockport, Mass., and author of the blog LawSites, www.lawsitesblog.com.