This article first appeared in Legal Web Watch October 2016. Legal Web Watch is a free email service which complements the Internet Newsletter for Lawyers. To receive Legal Web Watch regularly sign up here.

Across the pond, in 2012, the American Bar Association formally approved a change to their Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology, amending Comment 8 to Model Rule 1.1 to read as follows:

“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.”

To date, 24 State bars have adopted this duty.

Leading legal tech commentator Bob Ambrogi has been keeping a close eye on this and summarises what it means for lawyers:

You cannot assess the benefits and risks associated with various kinds of technology if you know nothing about the technology. Even if your state has yet to adopt this change, it is only a matter of time before it does. Don’t be a Luddite who fears or resists technology. Neither do you have to become a geek. Make an effort to understand the basics of the technology you use. Get on social media, if you’re not already. Ask questions. Learn. When it comes to technology, there is no more burying your head in the sand.

Richard Heinrich on the One Legal blog examines what it means to be technologically competent and suggests a few examples:

  • lawyers need to know enough about eDiscovery to supervise a case and find out when to outsource;
  • lawyers need to have a reasonable knowledge of secure electronic communications; and
  • lawyers need to understand the different rules and procedures that apply to electronically- versus physically-delivered filings.

In England and Wales the Solicitors Regulation Authority makes no mention at all of “technology” in its Statement of solicitor competence, neither does the Bar Standards Board in its proposed new approach to CPD. This is perhaps understandable since effective use of technology is a means by which a particular lawyer competence might be demonstrated, rather than a necessary lawyer competence in and of itself. Nevertheless, appropriate mentions of technology would have been apposite I think, if only to remind tech laggards of the need to keep up to date.

Joanna Goodman in the Law Society Gazette reviews the differing approaches to legal IT training taken by a number of larger firms:

Do lawyers need to learn to code? Should firms start including technology competencies in role profiling and assessment, or should it be down to individual lawyers to make sure they are up to speed with the latest software tools? Opinions are divided, ranging from suggestions that all lawyers should learn to code to the opinion that beyond the basic IT competence that is expected in any workplace, fee-earners should focus their efforts on – fee-earning.

Competence with various legal technologies is all very well, but there is one overarching technology that might be forgotten, simply because it is so all pervasive that we now take it for granted—the internet.

It may be that 5 year olds these days are quite proficient in using the internet, but they do not understand it sufficiently, with consequences that daily make the news. Likewise for the grown-up, professional lawyer, an appropriate higher level of understanding of the internet is required to effectively conduct their practice and advise and service their clients. This means knowing enough about new and emerging technologies to understand how they can benefit your practice and your clients. Further, matters of trust, privacy and confidentiality, copyright, contract and more are relevant to just about everything you do on the internet. You don’t have to be an expert in any of these, but you need to know enough about them to be able to practice competently.

Nick Holmes is Editor of the Internet Newsletter for Lawyers and Legal Web Watch. Follow him on Twitter @nickholmes.

Image: cc by Marc Di Luzio on Flickr.

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