Legal Competence Requires Tech Competence

Over the last couple of years, I have given multiple CLE presentations on the need for attorneys to have basic technology competence. Below is a revised version of an article that I had previously prepared on this topic. I think is particularly relevant today, in that, as of January 1, 2018, efiling becomes mandatory in Illinois in civil cases.

Until recently most people gave little thought to the question of whether ethics rules required attorneys to exercise competence in technology. That changed however with the ABA Ethics 20/20 revision of the model ethics rules. Of particular import is Rule 1.1 Competence. This rule provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

iPad and Galaxy TabThis rule certainly seems reasonable and in line with what one would expect out of a competent attorney. The interesting part aspect of the rule is found in comment number 8, which provides: “[8] 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).

This comment, therefore explicitly requires an attorney to keep abreast of the benefits and risks of technology relevant to the law. Further, this is not just a laudatory goal propounded by the ABA. As of the writing of this post, at least 28 states have adopted this comment, or a modified version of it [when I first wrote these materials, the number was 20]. Illinois formally adopted this comment effective January 1, 2016.

Illinois has gone even further down this road with recent amendments to Supreme Court Rules 11, and 131. Rule 131(d) now requires that, on all documents filed in court, attorneys must include an email address for service. It also permits an attorney to include up to two secondary email addresses for service. Further, Rule 11(c) now provides “Unless otherwise specified by rule or order of court, documents shall be served electronically.”

An interesting nugget is that the ABA committee that proposed the change in language to comment number 8 to refer specifically to technology, specifically noted: “The proposed amendment, which appears in a Comment, 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, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.” (Emphasis added).

This emphasizes the point that technology is not some new thing that attorneys suddenly have to comply with. Instead, improvements in technology have been with us all along. When we moved from handwriting documents to typing them, that was a change in technology in the same way that moving from typewriters to word processors was a change in technology. All along, in order to remain competent, an attorney needed to have some understanding of the benefits and risks of technology used in the legal world.

Neither the rule nor the comment contains specific information about the exact level of technological proficiency that is required. In fact, this is likely to vary from attorney to attorney and practice area to practice area. However, I would argue that, at least in Illinois, it requires knowledge about how to use email to send and receive notices, and how to operate the courts’ efiling system.

Additionally, anyone who is using a computer should understand the risks of clicking on links in random emails and be aware of the risks of using publicly available Wi-Fi networks. They should be aware of the security risks inherent in mobile devices and know that these devices can be remotely wiped, and know how to make that happen.

Significantly, neither the rule nor the comment requires or expects all attorneys to be experts in technology. What they do require, however, is that attorneys educate themselves about technology, how it is used in their practice, and how it is used in court.

The simple reality is that we live in a world that is full of technology. Having some understanding of what that technology is and how it can be used and abused is basic foundational knowledge that is required of attorneys to meet the competency standard established by the ethics rules. This is no different from requiring attorneys to have a basic foundation in the substantive areas of law in which they practice.

The world is constantly changing. As attorneys, we must remain aware of the changes that are occurring. We need not be experts in everything. However, we must know enough to know when we need to make further inquiries or we need to hire someone to assist us or to educate us. If we keep this fact in mind and follow that up with the touchstone of reasonableness, we will likely be in compliance with our ethical obligations when it comes to issues of technology.