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): “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... read more
Page 4 of 41234