Reminder: Attorneys’ Duty of Competence Extends to Technological Competence

Within each United States jurisdiction in which attorneys are licensed to practice law, the relevant rules of professional responsibility require attorneys to meet a duty of competence. Such competence is not limited to legal judgment and skill. Instead, this legal ethical duty has been interpreted by most of these jurisdictions to include a duty of technological competence. Technological competence is particularly important when attorneys advise clients regarding electronic discovery, information governance, and other legal issues involving electronic data and information systems.

In 2012, the American Bar Association amended Rule 1.1 of its Model Rules of Professional Conduct by revising Comment 8 to explain that, to provide “competent representation,” attorneys “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.” Most bodies responsible for legal ethics have either adopted this comment within their rules of professional responsibility for attorneys or have similarly addressed this ethical requirement in other ways. Some of these bodies have expounded on this duty of technological competence considerable. For example, in its Formal Opinion No. 2015-93, the State Bar of California Standing Committee on Professional Responsibility and Conduct drew upon attorneys’ duties of competence, supervision, and confidentiality when addresses their ethical duties in electronic discovery.

Significantly, no jurisdiction’s ethical rules have been interpreted to require mastery of particular technology tools or skills. Instead, the technological competence required by these rules must be considered on a case-by-case basis. For attorneys counseling clients on e-discovery and information governance matters, such competence has extend to at least two subject areas: (1) the client’s electronically-stored information and the different systems, functions, and attributes that relate to its management, retention, preservation, searching, exporting, and disposal, and (2) the tools and technologies that will be used outside of the scope of the first subject area to collect, process, search, analyze, review, and produce such information for a given matter and/or to evaluate and assess the information for purposes of determining the next steps for its management, retention, security, transfer, and disposition.