Two More States Adopt Duty of Technology Competence

In my continuing effort to tally the states that have adopted the duty of technology competence, I have two more to add: New Hampshire and New York. They bring the total to 17.

Yesterday, the Supreme Court of New Hampshire entered an order adopting various amendments to court rules. In that order, it adopted a modified and less-stringent version of Comment 8 than that adopted by the ABA in Model Rule 1.1. In place of the ABA version, the N.H. Supreme Court adopted a New Hampshire Bar Association Ethics Committee comment that states:

ABA comment [8] (formerly Comment [6]) requires that a lawyer should keep abreast of . . . the benefits and risks associated with relevant technology.” This broad requirement may be read to assume more time and resources than will typically be available to many lawyers. Realistically, a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers similarly situated are using.

The New Hampshire change takes effect on Jan. 1, 2016.

The other state that has adopted the duty of technology competence is New York. It was adopted by the New York State Bar Association on March 28, 2015. In New York, the Rules of Professional Conduct are promulgated by the Appellate Division of the Supreme Court, but the Appellate Division has not adopted any of the comments to the rules. Instead, the NYSBA adopts and publishes comments “to provide guidance for attorneys in complying with the Rules.”

The version of Comment 8 adopted by the NYSBA differs from the ABA’s version. It says that a lawyer should:

keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.

For more on the duty of technology competence and the states that have adopted it, see my original post.