In my continuing quest to track the states that have adopted the duty of technology competence for lawyers, I have learned of two more that should be on the list, bringing the total to 34.
The new additions to the list are Alaska and Montana. Both adopted the rule some time ago, but I somehow managed to miss them. Thanks to an alert reader for pointing them out.
The Alaska Supreme Court adopted the duty in an order dated March 20, 2017, with an effective date of Oct. 15, 2017. The revised Alaska Rule 1.1, regarding competence, is identical to ABA Model Rule 1.1, Comment 8, except that Alaska does not number its comments.
The Supreme Court of Montana adopted the duty in an order dated Sept. 22, 2016, with an effective date of Jan. 1, 2017.
Montana took a different tack in its adoption of the rule. Montana has not fully adopted the comments that are part of the ABA Model Rules. For that reason, the State Bar of Montana, in proposing the changes, devised what it described as an “elegant solution” to the problem of how to adopt Comment 8 without actually adopting the comments in full.
That solution was to include the language in the preamble to the Rules of Professional Conduct. In that way, the rules would address the obligation, but not create a separate obligation. Thus, paragraph 5 of the preamble was amended to read:
(5) In all professional functions a lawyer should be competent, prompt and diligent. Competence implies an obligation to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.
That was the recommendation that the Montana Supreme Court voted to adopt.