Legal Tech Series: Should there be ethical rules on tech competence?

In 2012, the ABA drafting a model rule that would require attorneys to maintain a certain, unspecified, level of tech competence. The rule 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."

Rule 1, comment [8].

Some argue that this rule does not go far enough, saying states should clearly define what tech competence looks like. But, I think the ABA got it right.

Technology is constantly changing. So, what qualifies as tech competence today may not be true a few years from now. It would not make sense to try to adopt a strict regulation on such a fleeting topic. It is better to allow flexibility, which the ABA's vague rule does.

There is another piece to the ABA's rule; it requires attorneys to comply with continuing legal education (CLE) requirements on technology. This is a more effective approach to actually ensuring attorneys maintain an appropriate level of tech competence. CLE courses on technology can teach attorneys about emerging legal technologies, rather than just punish them after they violate some ethical rule.

But don't just take my word for it! Check out my references below:

• Katy Ho, Defining the Contours of an Ethical Duty of Technological Competence, 30 Geo. J. Legal Ethics 853 (2017).

• https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1/

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