Sunday, February 18, 2018

What is a lawyer's duty of technology competence?

From National Jurist Magazine:

What Is A Lawyer's Duty Of Technology Competence?


At the core of legal professional conduct is a lawyer’s duty to provide competent representation to his or her clients. Today, this means that lawyers are expected to take reasonable steps to understand how technology may affect their legal representation.


In the past, lawyers were deemed to be competent based on their experience and knowledge of a substantive area of the law. As technology evolved, so to did the concept of competence.


As mandated by the American Bar Association’s Model Rules of Professional Conduct, lawyers are required to have the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation, including the use of methods and procedures that meet the standards of competent practitioners. 


But what does this mean in an age when client information is stored electronically?


In 2012, the American Bar Association modified its Model Rules to require lawyers to stay abreast of changes in the law and its practice, including the benefits and the risks associated with relevant technology. The duty of competence includes both substantive knowledge of law and competent use of the technology that lawyers use to practice law.


“The seemingly minor change to a Comment to Rule 1.1 captures an important shift in thinking about competent twenty-first century lawyering,” Suffolk University Law School Dean Andrew Perlman wrote. “Technology is playing an ever more important role, and lawyers who fail to keep abreast of new developments face a heightened risk of discipline or malpractice as well as formidable new challenges in an increasingly crowded and competitive legal marketplace.”


Writing about a lawyer’s duty of technical competence, lawyer Steven Puiszis listed several broad areas in which lawyers are expected to demonstrate technological competency. They are:


1. Cyber security, or safeguarding electronically stored client information

2. Electronic Discovery, including the preservation review and production of electronic information

3. Leveraging technology to deliver legal services, such as automated document assembly, electronic court scheduling and file share technologies

4. Understanding how technology is used by clients to offer services or manufacture products

5. Technology used to present information and/or evidence in the courtroom

6. Internet-based investigations through simple Internet searches and other research tools available online

. . . . 

Continue reading here.


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