32 States Have Adopted the Duty of Technology Competence

In 2012, something happened that I called a sea change in the legal profession: The American Bar Association formally 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.

More specifically, the ABA’s House of Delegates voted to amend Comment 8 to Model Rule 1.1, which pertains to competence, to read as follows:

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.)

Of course, the Model Rules are just that — a model. They provide guidance to the states in formulating their own rules of professional conduct. Each state is free to adopt, reject, ignore or modify the Model Rules. For the duty of technology competence to apply to the lawyers in any given state, that state’s high court (or rule-setting body) would first have to adopt it.

On this page, I track the states that have formally adopted the revised comment to Rule 1.1. The total so far is 32.

California, while not having formally adopted the change to its rules of professional conduct, has issued an ethics opinion that expressly acknowledges a duty of lawyers to be competent in technology. State Bar of California Formal Opinion No. 2015-193 requires attorneys who represent clients in litigation either to be competent in e-discovery or associate with others who are competent. The opinion expressly cites the ABA’s Comment 8 and states:

Maintaining learning and skill consistent with an attorney’s duty of competence includes “keeping abreast of changes in the law and its practice, including the benefits and risks associated with technology.”

If you know of other states I have missed, please let me know.

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