arrows-1229845_1280Just 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.

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  • Brian Tannebaum

    Words like “may” and “should” are different then “must” and “shall.” Also no rule was adopted. The language is in the comment to the rule. To call this a “duty,” is a disservice to lawyers.

    • Bob Ambrogi

      The ABA commission that originally proposed this change to the comment argued that the competence rule itself — not any comment — implicitly encompassed an obligation to remain aware of changes in technology, and that the comment was needed primarily to highlight was the rule already required. On top of that, there have been several court opinions — primarily in the e-discovery area — in which lawyers have been sanctioned for screw-ups relating to their failure to understand the technology implications of matters related to their cases. None of this means that lawyers need to become technology experts. It means only that they need to have enough understanding to recognize issues, to know what they don’t know, and to know when to bring in expert help in order to best serve their clients.

      • Brian Tannebaum

        Ill just keep saying this as long as I have to. There is no duty in the rule, and no lawyer has been disciplined by the State Bar based on it. It’s a nice recommendation and I think lawyers should pay attention to technology but we need to start using language appropriately.

        • Bob Ambrogi

          When a Supreme Court order says a lawyer “should” do something, it is more than a “nice recommendation.” Maybe no lawyer will get brought up on ethics charges, but maybe that lawyer will face judicial sanctions or malpractice when the lawyer’s ignorance of a tech issue results in a screw up. I don’t think it’s inappropriate to say that lawyers have a duty to their clients to be minimally competent in technology.

          • Brian Tannebaum

            Bob, wrong. There is a difference between what a lawyer should do and what they are obligated to do. This is what lawyers who practice ethics deal with daily. The tech world’s grabbing of this commentary to try and profit off the fear of lawyers is deplorable. Lawyers should be competent in technology, yet no one can define the duty, because it doesn’t exist. Saying lawyers should maintain trust account records is different than saying lawyers have to maintain monthly reconcilliations and ledger cards. I can’ explain it, I just cant help understand it.

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