by Emily Dreiling
The Evolution of “Competence”
A lawyer’s “Duty of Competence” has been around for a long time. Model Rule 1.1 provides that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Generally, lawyers have understood competence to mean their substantive knowledge of a certain area of law, in addition to their ability to adequately represent a client. The scope of this competence, however, has changed.
In 2012, the American Bar Association edited its Model Rules to emphasize that lawyers have a duty to not only to be competent generally, but also to be “Technology Competent.” Specifically, it amended Model Rule 1.1, Comment 8, “Maintaining 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. (Emphasis added.)
Just this year, Nebraska became the 28th state to adopt Comment 8; a majority of states now require a duty of Technology Competence. According to legal tech expert Robert Ambrogi, in a recent interview with the legal tech podcast “The Digital Edge,” this duty will likely soon be adopted by all states.
So, what does it mean to be “Technology Competent?”
Lawyers didn’t need this amendment to understand the importance of technology in the legal profession. The fact that you’re here, reading my post on a Tech Law blog, shows you understand the importance of, or at least value the use of, technology in the law.
Yet, when Lawyers Casey Flaherty and Darth Vaughn administered basic technology assessments to hundreds of law school students in 2016, asking them to complete several tasks in MS Word, only about 33% of the students could perform these tasks on their first attempt:
- accept/turn-off track changes;
- cut & paste;
- replace text;
- format font and paragraph;
- fix footers;
- insert hyperlink;
- apply/modify style;
- insert/update cross-references;
- insert page break;
- insert non-breaking space;
- clean document properties; and/or
- create comparison document (i.e., a redline).
It seems reasonable that, to be tech competent, lawyers should know the above skills—and arguably even more. Yet, if I am being completely honest, I do not think that I could complete at least several of these tasks on my own, on the first try, without the aid of Google. Most law students, like myself, can get through school without ever having to do most of the above tasks. This limited exposure leads to a more limited tech competence. If we lack basic competence in MS Word, however, what sorts of roadblocks may we encounter when we enter the legal profession?
Given the increasing adoption of mandatory e-filing, service via email, and eDiscovery, lawyers can no longer get by living in technological ignorance. Furthermore, prevalent professional use of modern technologies—such as case-management software, document-management software, billing software, e-mail, PDF systems with redaction, and the MS Office Suite—emphasizes the need for lawyers to be tech competent, at least when it comes to these programs.
So, if students are lacking this competence, how do they get it?
Here’s a call out to the law schools. Despite the prevalence of tech in the legal profession, few law schools offer any substantive training in its use. This may be due to a fear of tech, or a belief that tech is reserved for the STEM curriculum. Moreover, academic faculty may lack an understanding of tech, and therefore feel uncomfortable teaching it, or may be ignorant to the shifting landscape of the legal profession, causing them to dismiss the importance of tech courses altogether.
Regardless, with the new ethical duty of technology competence, it is vital that law schools begin to teach these basic competencies to their students. Whether in one of the 28 “Comment 8” states or in one of the states that has not yet adopted this change, law schools should not only provide substantive courses on the use of prevalent legal technologies, but require them. And students, in turn, should demand these courses.
*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.