In 2020, technology competence for lawyers is not a luxury or an added resume line. It’s an ethical requirement in many jurisdictions. Writes Law.com
When 19th Century English craftsmen known as Luddites protested against textile manufacturing technology, their attitudes were similar to those of 20th Century lawyers—with both groups fearing technology would take their jobs.
Just as the Luddites had to adapt, the lawyers must as well, and law school is the place to start.
At the 2020 Annual Meeting of the Association of American Law Schools (AALS) in Washington, DC, law school faculty gathered for a roundtable discussion: The Duty of Technology Competence: Understanding the Standards and Preparing Our Students. The discussion was a timely one because, in 2020, technology competence for lawyers is not a luxury or an added resume line, it’s an ethical requirement in many jurisdictions.
Where’s the Beef?
When, in 2012, the American Bar Association (ABA) amended Comment 8 to Rule 1.1 on attorney competence in the ABA Rules of Professional Conduct, reactions ranged from “Well, I guess that’s a good start” to “Where’s the beef?” The lukewarm reaction stemmed from the provision being buried in the comments with no real regulation or enforcement.
The 2012 amendment provided:
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 naysayers who questioned whether the ABA’s 2012 move would have any impact failed to predict an important development: state bars following the ABA’s lead and developing their own ethical requirements for lawyer technology competence.
The ABA’s provision may be buried in a comment, but today, 38 states have amended their own ethical requirements, and other states have implemented ethics opinions on attorney technology competence.
For instance, in the field of e-discovery, the State Bar of California’s Formal Opinion 2015-193 provides: “An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation.”
The Role of the Law School
The AALS attorney technology competence program was moderated by Hari Michele Osofsky, dean of Penn State Law. In a potential indicator of things to become commonplace in legal education, Osofsky serves also as dean of Penn State’s School of International Affairs in addition to her role as a professor of geography.
