Michigan today become the 37th state to adopt the ethical duty of technology competence for lawyers.
The Michigan Supreme Court issued an order adopting a variation of Model Rule 1.1, Comment 8, of the American Bar Association’s Model Rules of Professional Conduct.
[See my Tech Competence page where I track the states that have adopted this duty.]
The order amends the comments to Rule 1.1 of the Michigan Rules of Professional Conduct so that the paragraph on maintaining competence is as follows, with the addition shown in italics:
Maintaining Competence. To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including the knowledge and skills regarding existing and 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.
While Michigan does not number the comments to its rules, this is similar to Comment 8 of the ABA model rule, but with a variation. The ABA version says:
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.)
In today’s order, the Michigan Supreme Court also amended its Rule 1.6, regarding the confidentiality of information, to add the following:
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.
A staff comment that is included in the court’s order provides this explanation:
The amendments of the comments of MRPC 1.1 and MRPC 1.6 address a lawyer’s obligation to maintain reasonable competence in relevant technology and ensure reasonable efforts to maintain confidentiality of documents.
The ABA adopted the amendment to Comment 8 in 2012. Michigan is now the 37th state to formally adopt it as part of its professional conduct rules. The Michigan amendments take effect on Jan. 1, 2020.