Bob Ambrogi blogged this morning that two more U.S. states have adopted amendments to their legal profession rules of conduct that include technological competence as part of a lawyer’s overall duty of competence, bringing the total number of states having adopted this duty to 17. The duty first appeared in the ABA Model Rules in 2012, as Comment 8 to Rule 1.1, as follows:
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.
States that have moved in this direction have taken a variety of approaches, mostly variations on the Model Rule Comment, as Ambrogi explains here.
In Canada, we’ve not yet moved in that direction. Indeed, a search of the Federation of Law Societies Model Code of Professional Conduct reveals that the word “technology” appears only one time, and that’s in the Preface to the Code:
The practice of law continues to evolve. Advances in technology, changes in the culture of those accessing legal services and the economics associated with practising law will continue to present challenges to lawyers. The ethical guidance provided to lawyers by their regulators should be responsive to this evolution. Rules of conduct should assist, not hinder, lawyers in providing legal services to the public in a way that ensures the public interest is protected.
The evolution of how lawyers practice law is indeed ongoing and advances in the arena of technology do continue to present challenges to lawyers. Some choose to face those challenges head on and become familiar with the tools that technology offers, but others respond to the challenge of technology by attempting to ignore it, pleading ignorance or running from it.
There is no question but that lawyers find themselves in a world in which technology increasingly impacts how they go about doing their business. It reaches well beyond office tools and practices into firm and client communications, information and document management, evidence gathering and document discovery, marketing and client development.
One could argue that a failure to understand current technologies to the extent required to assess risks and benefits, as required by the ABA Model Rules demonstrates a lack of competence. The Commentary to the Federation Model Rule on Competence (Rule 3.1-2) sets out that:
 A lawyer must recognize a task for which the lawyer lacks competence and the disservice that would be done to the client by undertaking that task. If consulted about such a task, the lawyer should: (a) decline to act; (b) obtain the client’s instructions to retain, consult or collaborate with a lawyer who is competent for that task; or (c) obtain the client’s consent for the lawyer to become competent without undue delay, risk or expense to the client.
 A lawyer should also recognize that competence for a particular task may require seeking advice from or collaborating with experts in scientific, accounting or other nonlegal fields, and, when it is appropriate, the lawyer should not hesitate to seek the client’s instructions to consult experts.
I wonder if most lawyers recognize that a lack competence for a technological task required in the representation of a client places them in a position where the retainer should be refused or a competent lawyer retained or such technological competence should be gained without undue delay, risk or expense to the client. And in some cases, this means that experts will need to be brought in to consult.
Generally I’m not inclined to address emerging issues through the creation of more detailed ethical and regulatory requirements. In most cases, a principled approach that provides appropriate guidance will suffice; however I find it troubling that the ethical guidelines for lawyers in Canada don’t even address in the most general way, the need to lawyers to keep abreast of the technology tools commonly used in legal practice and business environments.
Whether we go the route of the ABA and a growing number of states or craft our own Canadian response, it’s time we acknowledge the increasing ubiquity of technology in all aspects of legal practice and determine how best to ensure that lawyers are competent in its use. It may require an amendment to the definition of competence or maybe we need to dedicate some mandatory CPD hours to these issues. Ambrogi concludes with a challenge to 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.
I have to agree. This is an area in which career-long learning is required. Change is ongoing and complacency won’t win the day. To remain relevant, efficient, effective and competent, lawyers must keep abreast of changes in technology, whether law societies require it or not.