Thirty-six states have adopted the duty of technology competence for lawyers, and now Michigan is considering joining the list with proposed changes to its Rules of Professional Conduct.

In April, the Michigan Supreme Court put out a request for public comment with regard to proposed amendments to Rules 1.1 and 1.6 of its professional conduct rules.

The comment period remains open, with Aug. 1 set as the deadline for filing comments.

Michigan’s proposal varies from ABA Model Rule 1.1, Comment 8, which is the version that most states have adopted. I find Michigan’s variation confusing. Here is the ABA version:

“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.)

By comparison, the Michigan proposal would read:

“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.” (Emphasis added.)

I am thrown off by the word “developing” in the Michigan version. Are lawyers required to be competent only with regard to “developing” technology, but not with regard to established technology? What does “developing” even mean in that context?

According to the court’s website, only one lawyer so far has filed comments on the proposed change, and he is not happy with it, writing that it “is probably the worst rule that I have ever seen.” He goes on:

How would you enforce this? Personally I have very limited knowledge or skills regarding developing technology as it relates to computers/laptops. I have been practicing law for 47 years and know very little about computers.

Are you going to send me to school to learn about computers? — Most lawyers have legal assistants, secretaries, and law clerks who are competent with knowledge or skills regarding developing technology. My staff does what is necessary regarding technology and preparation of documents when representing clients.

This lawyer might be chagrined to learn that two states do, in a sense, send lawyers to school to learn about computers, in that Florida and North Carolina have both adopted mandatory technology CLE. That said, the lawyer goes on to make a further point in his comments, and it is a worthy one:

If you are really serious about competence then I suggest that the State Board of Bar Examiners have a portion of the bar exam relating to “developing technology” and computer skills.

Good suggestion. Let’s not make technology competence a requirement only after a lawyer is admitted — let’s make it a condition of admission.

Meanwhile, if you are a lawyer in Michigan, consider adding your comments on this important proposal. Comments may be sent to the Supreme Court Clerk in writing or electronically by Aug. 1, 2019, at P.O. Box 30052, Lansing, MI 48909, or ADMcomment@courts.mi.gov. If filing a comment, refer to ADM File No. 2018-11.