The “Competent” Lawyer

There has been no shortage of opinion in the blogosphere about recent amendments to the American Bar Association’s Model Rules of Professional Conduct. Although several amendments impacting an attorney’s use of technology were made, the amendment getting the most attention reads as follows (new language adopted August 2012 is underlined):

footer_logo“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.”

Ok, so what does it mean? Some have suggested that the amendment institutes some new requirement that lawyers become experts in technology in order to maintain their licenses (for example here and here).

While not the worst idea in the world, the non-tech savvy among us can relax; no such requirement exists.

First, contrary to what an awful lot of people who have written articles about this new amendment, the ABA does not set the rules for lawyers. Lawyers are licensed by state, not by the ABA. Ethics rules are determined by each individual state, and enforced through that state’s bar. That’s why they’re called “Model Rules.” You would be AMAZED how many non-lawyers (and a disturbing number of actual lawyers) writing about technology have overlooked that piece of information.

Second, the rule is “legalese” at its best – nonspecific and open to an infinite number of interpretations. How does one measure and identify the correct “benefits and risks associated with relevant technology.” Any trial lawyer will quickly recognize that the word “relevant” was included, and breathe a sigh of relief. Although some view the change as sweeping – one interpretation holds that lawyers now must “… track how technology is revolutionizing the economy.” No state has even suggested, let alone adopted, such a sweeping requirement.

Third, the amendment’s practical impact is likely to be limited. Only one state, Delaware, has adopted the new language. Moreover, unlike many of the other amendments, the language itself does not lend itself to situational examples. (As an exercise, try to come up with a workable definition of “relevant technology.”)

Generally speaking, the ABA Model Rules are pretty solid. (Want proof? 49 states have adopted them, and the only holdout, California, refused adoption because it has a system that actually goes a step further on most rules.) However, the language of this amendment is a failure of good intentions, and a benign failure at that. More specific language could have really given this requirement some legs and started an important discussion on how attorneys approach technology.

As an attorney, I should be obligated to know what the implications of using certain software and equipment are on my practice, my clients, and my firm. I should have to investigate data security and new software and equipment. I should AT LEAST be aware of their existence.

Then again, if everyone WAS aware, I wouldn’t have any reason for this blog…