Another state has adopted the ethical duty of technology competence for lawyers, bringing the total that have done so to 32.

Related: Full list of states that have adopted the duty of technology competence.

This week, the Vermont Supreme Court ordered amendments to the comments to Rule 1.1 of the Vermont Rules of Professional Conduct. The amendments track the 2012 changes to the ABA Model Rules of Professional Conduct, and specifically include Comment 8’s duty of technology 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.)

The court also adopted comments 6 and 7, pertaining to outsourcing work by lawyers.

The court entered its order on Oct. 9, 2018, and the changes take effect on Dec. 10, 2018.

Hat tip to Michael Kennedy for letting me know about this.

Should legal ethics rules be changed to allow non-lawyer ownership of legal services providers? So controversial is the question that it was major news in July when the State Bar of California voted to appoint a task force to study and make recommendations on the issue. What spurred the bar to take this action was the Legal Market Landscape Report it commissioned from William D. Henderson, professor at Indiana University Maurer School of Law. Henderson is my guest on today’s episode to discuss his findings and recommendations.

Henderson’s report makes the case that the legal profession is failing in its core mission of serving those who need legal services. The situation has brought the profession to an inflection point that requires action by regulators, Henderson says. The most effective regulatory action would be to ease rules on non-lawyer investment in order to allow lawyers to more closely collaborate with professionals from other disciplines, such as technology, process design, data analytics, accounting, marketing and finance.

“By modifying the ethics rules to facilitate this close collaboration,” Henderson writes in his report, “the legal profession will accelerate the development of one-to-many productized legal solutions that will drive down overall costs; improve access for the poor, working and middle class; improve the predictability and transparency of legal services; aid the growth of new businesses; and elevate the stature and reputation of the legal profession as one serving the broader needs of society.”

At Maurer, Henderson holds the Stephen F. Burns Chair on the Legal Profession. In 2017, he founded Legal Evolution, an online publication that chronicles successful innovation within the legal industry. A prolific author and speaker, he focuses primarily on the empirical analysis of the legal profession. Among his honors, he was named by the ABA Journal as a Legal Rebel, included on the National Law Journal’s list of The 100 Most Influential Lawyers in America, and in both 2015 and 2016 named the Most Influential Person in Legal Education by The National Jurist magazine.

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Since 2015, I have been tracking the states that have adopted the duty of technology competence for lawyers. I have been doing that by updating a now three-year-old blog post. The post has become messy and unwieldy.

To clean it up, I’ve created a new page where I will continue to track adoption. The new page can be found here:

From now on, all updates will be listed at this new page. I will no longer update the old page. Please update any bookmarks or links you may have.

The new page features:

  • The full list of states that have adopted ABA Model Rule 1.1, Comment 8.
  • A clickable map that takes you to more information for each state that has adopted the rule.
  • Other resources for further reading on the duty of technology competence.

Let me know if you have any other suggestions for this page.

 

In 2016, Florida became the first state to mandate technology training for lawyers, when it adopted a rule requiring lawyers to complete three hours of CLE every three years “in approved technology programs.”

So far, no other state has followed suit. But now one has moved a giant step closer to following in Florida’s footsteps. The North Carolina State Bar Council has approved a proposed amendment to lawyers’ annual CLE requirements that would mandate that one hour of the required 12 hours of CLE training annually be devoted to technology training.

The council adopted the proposed amendment on April 20. The proposed amendment now goes to the North Carolina Supreme Court for approval.

The proposed amendment would also add a definition of technology training:

“Technology training” shall mean a program, or a segment of a program, devoted to education on information technology (IT) or cybersecurity (see N.C. Gen. Stat. §143B-1320(a)(11), or successor statutory provision, for a definition of “information technology”), including education on an information technology product, device, platform, application, or other tool, process, or methodology. To be eligible for CLE accreditation as a technology training program, the program must satisfy the accreditation standards in Rule .1519 of this subchapter: specifically, the primary objective of the program must be to increase the participant’s professional competence and proficiency as a lawyer. Such programs include, but are not limited to, education on the following: a) an IT tool, process, or methodology designed to perform tasks that are specific or uniquely suited to the practice of law; b) using a generic IT tool process or methodology to increase the efficiency of performing tasks necessary to the practice of law; c) the investigation, collection, and introduction of social media evidence; d) e-discovery; e) electronic filing of legal documents; f) digital forensics for legal investigation or litigation; and g) practice management software. See Rule .1602 of this subchapter for additional information on accreditation of technology training programs.

Now the question is, Which state will be next?

My post yesterday about Kentucky having adopted the duty of technology competence brought an email alerting me that Indiana had also adopted the duty, bringing the total to 31. The complete list of states that have adopted this duty can be found here.

A hat tip to William C. Wagner, partner at Taft Stettinius & Hollister LLP in Indianapolis, for pointing me to the Indiana Supreme Court’s order on July 31, 2017, adopting Comment 6 to Rule 1.1 on competence. The revised rule took effect on Jan. 1, 2018.

Indiana’s Comment 6 is now identical to ABA Model Rule 1.1, Comment 6, and 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 the technology relevant to the lawyer’s practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

If you know of any others that I have missed, please let me know.

Just a week ago, I reported on the 29th state to have adopted the duty of technology competence, as part of my ongoing tally of states, and now there is the 30th to add: Kentucky.

The duty took effect on Jan. 1, 2018, having been adopted by the Supreme Court of Kentucky on Nov. 15, 2017 (Order 2017-18). Among a number of rules amendments, the order amended SCR 3.130(1.1), Kentucky’s corollary to ABA Model Rule 1.1 on competence, to add the same Comment 6 as the model rule:

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.

The phrase I’ve italicized is the same as the language that the ABA recommended in 2012 when it approved a change to the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology.

Here is the full list of states that have adopted the duty of technology competence.

As I continue my effort to keep a tally of the states that have adopted the duty of technology competence. I’ve just learned, belatedly, of another.

On Sept. 26, 2017, the Supreme Court of Missouri adopted the amendment.  It amends Rule 4-1.1 of Missouri’s Rules of Professional Conduct by revising Comment 6, Maintaining Competence, to be in accord with ABA Model Rule 1.1. The Missouri rule now 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 phrase I’ve italicized is the same as the language that the ABA recommended in 2012 when it approved a change to the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology.

Here is the full list of states that have adopted the duty of technology competence.

(A big tip of the hat to Carole Levitt of Internet for Lawyers for alerting me to this change.)

I’ve written any number of posts about the duty of technology competence under ABA Model Rule 1.1, Comment 8, and I’ve been tracking its adoption by the states. But one aspect of this duty that does not get as much attention is how lawyers can get and remain technologically competent.

There have been several developments on this front, including news over the past week of two more initiatives that should further promote technology competence among legal professionals. One is online training for lawyers in legal innovation and technology, the other an index tracking how well law schools are preparing students to deliver legal services in the 21st Century.

This is the topic of my column this week at Above the Law: OK, We Get Technology Competence, But How Do We Get Technologically Competent?

In my continuing effort to keep a tally of the states that have adopted the duty of technology competence, I’ve discovered another, Nebraska, which brings the total to 28 states.

The Nebraska Supreme Court adopted the amendment on June 28, 2017.  It amends comment 6 to Nebraska Rule of Professional Conduct § 3-501.1 — the corollary to ABA Model Rule 1.1 on competence — to read as follows:

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 italicized phrase is the same as the language that the ABA recommended in 2012 when it approved a change to the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology.

Here is the full list of states that have adopted the duty of technology competence.

During the past week, I’ve had the great honor and pleasure of presenting a four-hour program on legal ethics and technology to members of the Solo & Small Firm Section of the Florida Bar. What made this program particularly special was that it took place during a 10-day cruise along the Danube River, from Vilshofen, Germany, to Budapest, Hungary.

In case anyone is interested in seeing the slides from my presentation, they are below. Two notes about the presentation. One, it is long. Two, it is oriented to Florida and so discusses many Florida ethics rules and opinions. Even so, much of it applies to lawyers in any state.