heads-in-the-sand

Important note: I have moved this list to a new page. This page is no longer being updated. For the up-to-date list, please see the new page. 

[Update 3/15/18: Indiana adopted the rule, so the total is now 31.]

[Update 3/14/18: Kentucky adopts the rule, bringing total to 30.]

[Update 3/5/18: Adoption by Missouri brings the number to 29.]

[Update 9/5/17: Nebraska’s adoption brings the number to 28.]

[Update 3/8/17: Add Tennessee to the list, bringing it to 27.]

[Update 12/28/16: Colorado has also adopted the rule, making it 26 states.]

[Update 9/30/16: Add Florida to the list, making it 25 states.]

[Update 9/22/16: Oklahoma adopts the rule, bringing the number to 24.]

[Update: Wisconsin and Washington are the latest to adopt the rule.]

[Update: North Dakota’s adoption of the rule brings the total to 21 states.]

[Update: As of Dec. 23, 2015, it is 20 states, with the addition of Iowa and Utah.]

[Update: As of Dec. 17, 2015, it is 18 states, with the addition of Virginia.]

[Update: As of Nov. 11, 2015, it is 17 states, with the addition of two more.]

[Update: As of Oct. 15, 2015, it is 15 states, with the adoption of the rule in Illinois.]

[Update: It is now 14 states. See my 3/27/15 post on the rule’s adoption in Massachusetts.]

In 2012, something happened that I called a sea change in the legal profession: The American Bar Association formally approved a change to the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology.

More specifically, the ABA’s House of Delegates voted to amend Comment 8 to Model Rule 1.1, which pertains to competence, to read as follows:

Maintaining Competence

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.)

Of course, the Model Rules are just that — a model. They provide guidance to the states in formulating their own rules of professional conduct. But each state is free to adopt, reject, ignore or modify the Model Rules. For the duty of technology competence to apply to the lawyers in any given state, that state’s high court (or rule-setting body) would first have to adopt it.

So, roughly 30 48 many months after the ABA approved this amendment, how many states have adopted the duty of technology competence? By my count, 13 15 28 states have so far formally adopted the revised comment to Rule 1.1. They are:

On Feb. 28, 2015, the Virginia State Bar Council voted to adopt the Rule 1.1 change. However, the change does not take effect unless and until it is approved by the Virginia Supreme Court.

In Massachusetts, where I am located, the Supreme Judicial Court has issued a notice stating that it will adopt a package of proposed rule changes that includes Comment 8. However, the SJC said that it will not issue a formal order adopting the rules or set an effective date until it announces its decision on other proposed changes for which it has scheduled oral arguments. More information on the proposed changes and their status can be found here.

Some other states, while not having formally adopted the change to their rules of professional conduct, have nonetheless acknowledged a duty of lawyers to be competent in technology.  For example, the New Hampshire Bar Association, in Advisory Opinion #2012-13/4 concerning cloud computing, said:

Competent lawyers must have a basic understanding of the technologies they use. Furthermore, as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes.

And in California, a proposed final ethics opinion of the State Bar of California (Proposed Formal Opinion Interim No. 11-0004) (Formal Opinion No. 2015-193) would requires attorneys who represent clients in litigation either to be competent in e-discovery or associate with others who are competent. The opinion expressly cites the ABA’s Comment 8 and states:

Maintaining learning and skill consistent with an attorney’s duty of competence includes “keeping abreast of changes in the law and its practice, including the benefits and risks associated with technology.”

If you know of other states I have missed, please let me know.

What does all this mean to you? It is simple. You cannot assess the benefits and risks associated with various kinds of technology if you know nothing about the technology. Even if your state has yet to adopt this change, it is only a matter of time before it does. Don’t be a Luddite who fears or resists technology. Neither do you have to become a geek. Make an effort to understand the basics of the technology you use. Get on social media, if you’re not already. Ask questions. Learn. When it comes to technology, there is no more burying your head in the sand.