Understanding Legal Technology Is A Professional Requirement
Throughout the nation, the rules that control how attorneys act are being updated to include rules about how attorneys should use and understand technology.
Competent lawyers must strive to understand the potential benefits and risks of relevant technology. Increasingly, practicing attorneys are ethically required to understand technology to meet competency standards. This requirement is ongoing and evolves with technological advancements.
Attorneys are governed by different rules than other professionals. The ethical rules that control how attorneys should act are constantly evolving to adapt to changes in society.
Starting with the personal computer revolution, our society has undergone unprecedented change in how businesses and technology interoperate. Law firms, although often slow to adopt technological change, have not been exempt from this unparalleled technological transformation.
Throughout the nation, the rules that control how attorneys act are being updated to govern how attorneys should use and regard technology and legal IT solutions.
An example of this type of update can be seen in Illinois, where attorneys are governed by the Illinois Supreme Court Rules of Professional Conduct (IRPC). IRPC Rule 1.1 is a competency rule that requires lawyers to “provide competent representation to a client,” and states, “competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” IRPC Rule 1.1 (2017).
IRPC Rule 1.1 is accompanied by comments intended to explain and illustrate the meaning of the rule. In Illinois, these comments are intended to be instructive, and generally provide good goal-posts by which to gauge an attorney’s conduct.
Comment 8 to Rule 1.1, titled Maintaining Competence, was amended on October 15, 2015, and became effective January 1, 2016. This comment states:
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 to comply with all continuing legal education requirements to which the lawyer is subject.
By amending this comment, the drafters of the comment recognize that a competent lawyer not only understands the potential risks of relevant technology, presumably to protect clients from those risks; but a competent lawyer also understands the potential benefits offered by relevant technology.
An attorney who understands technology can offer his clients better representation by utilizing the benefits of the technology to enhance representation of his clients, while protecting clients from potential pitfalls.
A recent Illinois State Bar Association ethics opinion discusses Comment 8 to Rule 1.1 in the context of cloud computing. In that opinion, the ISBA cites to this comment in deciding that, while an attorney may use cloud based computing services, the attorney must “comply with his or her duties of competence in selecting a provider, assessing the risks, reviewing existing practices, and monitoring compliance with the lawyer’s professional obligations.” . (ISBA Professional Conduct Advisory Opinion No. 16-06 October 2016).
An attorney who understands technology can offer his clients better representation by utilizing the benefits of the technology to enhance representation of his clients, while protecting his clients from potential pitfalls.
Illinois is not alone in its attempt to reconcile modern technology with the requirement that attorneys represent clients competently. The drafters of the professional conduct rules in Florida have amended Florida's ethics rules in an attempt to adapt to the increased use of technology by the legal profession.
Florida, like most states, requires lawyers to regularly attend a number of continuing legal education classes. Florida lawyers are required to include three hours of technology programs to complete this continuing legal education requirement. This is a unique requirement, but is inline with the requirement that attorneys provide competent representation to clients, including technological competence.
Many states have adopted rules like those adopted by Illinois and Florida. Eventually, it is likely all states will adopt similar rules.
Lawyers must provide competent representation to clients. To provide competent representation in a modern law practice, a lawyer must keep abreast of the benefits and risks of technology. Understanding technology is not only a good business practice, it is an ethical requirement.
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