The roster of states that have adopted the duty of technology competence for lawyers is at 36, but now Michigan is on track to possibly make it 37.
Yesterday, the Michigan Supreme Court posted a notice that it is considering adopting the duty and requesting public comment.
The proposal would amend a paragraph of the comments to Rule 1.1 of the Michigan Rules of Professional Conduct to read as follows:
Maintaining Competence. To maintain the requisite knowledge and skill, a lawyer should
engage in continuing study and education, including the knowledge and skills regarding
developing technology that are reasonably necessary to provide competent representation
for the client in a particular matter. If a system of peer review has been established, the
lawyer should consider making use of it in appropriate circumstances.
This proposed language varies from that of ABA Model Rule 1.1, Comment 8, which is what most states have adopted. It reads:
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.
The Michigan version appears to suggest that technology training would have to be part of a lawyer’s continuing education. The version places emphasis on having the technology skills needed to provide competent representation to specific clients in specific cases.
The notice also includes a proposed change to the comments to rule 1.6 on confidentiality. It also relates to a lawyer’s duty to understand technology. The change would add a new paragraph:
Confidentiality of Information. When transmitting a communication that contains confidential and/or privileged information relating to the representation of a client, the lawyer should take reasonable measures and act competently so that the confidential and/or privileged client information will not be revealed to unintended third parties. Such reasonable measures should reflect the lawyer’s adequate knowledge and understanding of the technology used to transmit the confidential and/or privileged client information.
The court says that it will accept written comments until Aug. 1, 2019. They are to be sent by mail to the Supreme Court at P.O. Box 30052, Lansing, MI 48909, or by email at ADMcomment@courts.mi.gov. The court will also hold a public hearing on the proposed changes, but it has not set a date for that.