Just last week, I reported that Oklahoma had adopted the duty of technology competence for lawyers, becoming the 24th state on my ongoing tally of states that have adopted the ABA Model Rule. Now there is another. Yesterday, the Supreme Court of Florida ordered adoption of the duty of tech competence for that state, effective Jan. 1, 2017.
From the court’s order:
The comment to rule 4-1.1 (Competence) is amended to add language providing that competent representation may involve a lawyer’s association with, or retention of, a non-lawyer advisor with established technological competence in the relevant field. Competent representation may also entail safeguarding confidential information related to the representation, including electronic transmission and communications. Additionally, we add language to the comment providing that, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.
In adopting the rule, the Supreme Court went farther than other states have done, adding two separate comments pertaining to technology competence. One is based on the ABA Model Rule on maintaining competence, but varies slightly:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education, including an understanding of the benefits and risks associated with the use of technology, and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)
The italicized language is the same as the ABA rule except for the addition of the words “an understanding of.” I’ll leave it to scholars to debate why the court added those three words and what their significance may be.
In addition, the Supreme Court added language that other states rules do not have:
Competent representation may also involve the association or retention of a non-lawyer advisor of established technological competence in the field in question. Competent representation also involves safeguarding confidential information relating to the representation, including, but not limited to, electronic transmissions and communications.
I’ve inserted the full Supreme Court order below. See the full list of states that have adopted this here.