In 2012, the ABA changed the Model Rules of Professional Conduct to clarify that lawyers have a duty to be competent not only in the law, but also in technology. Many other states—including Ohio—have followed suit.
Ohio’s Duty of Technology Competency
Specifically, the Supreme Court of Ohio amended Comment 6 to Rule 1.1 (which will be the new Comment 8, which covers competence, to read 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 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 amendment was put into effect April 1.
This trend requiring technological competence continues to grow. Robert Ambrogi (@bobambrogi) recently provided a helpful update on which states have taken steps in this direction. He found 12 other states have formally adopted the revised comment to Rule 1.1 and a handful of others are acknowledging the duty through other means (advisory and formal ethics opinions). The list of states who have formally adopted the Rule change includes Arizona, Arkansas, Connecticut, Delaware, Idaho, Kansas, Minnesota, New Mexico, North Carolina, Pennsylvania, West Virginia, Wyoming. California, Massachusetts, Virginia and New Hampshire have also put attorneys on notice that the duty of competence extends to technology.
To be clear: We are not saying you need to be an expert or spend countless hours on social media. But attorneys can no longer shield themselves from technological developments. As Robert Ambrogi stated, “You cannot assess the benefits and risks associated with various kinds of technology if you know nothing about the technology.”
So dive in. Here are some suggestions on where to start:
- What technology are your clients using? Have a basic understanding of your clients’ email and document retention systems. Among other benefits, this will help you understand how to collect relevant documents more efficiently and talk with opposing counsel on what information exists. If they are on Facebook or Twitter, you should understand how these platforms work and what data is available and retrievable.
- What technology do you use? You should have an understanding of how your (and your clients’) data is transmitted through your systems. You should also learn what form of electronically stored information you need to review the information. This will help get the documents you need faster and in a format that requires less of your (and your clients’) time and money.
- What technology do others use? Learning what other firms or businesses use can be helpful to gauge what is possible and where your practice stands. Nowadays, there is a technology solution for problems of all sizes, so cost is not always a problem. Take free webinars or just google some firm technologies. You never know what you might find.
Not only will this technological competence help you meet your ethical duties, it also ensures efficient and effective client service. Everybody wins!