My adopted home state of Louisiana has come under a lot of fire recently for not being up to speed on the duty of technical competence. Bob Ambrogi rather pointedly called his blog post on the subject, A Tech Ethics Opinion that Misses the Mark and in that column referred to another post by Nicole Black who had previously written about the same subject in a Legal News column. I know and respect both Bob and Nicole but I’m going to go all NCAA College Game Day on them here and channel my inner Lee Corso.
Basically I think their comments miss the mark on several points. First, Bob states that
“ …. the ABA’s first opinion to address Model Rule 1.1, Comment 8 — Formal Opinion 477 issued in 2017 — makes the point repeatedly that the duty of technology competence encompasses the ability to understand how the client uses technology, what technology systems the client uses, and the client’s degree of technology sophistication.”
So first let’s recall that ABA Model Rule 1.1, Comment 8 was passed in August of 2012 and merely says “ … a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” As I noted at the time, it was horribly vague and it languished, rightfully so, for several years before states started incorporating some form of it into their Rules of Professional Conduct. Taken by itself it doesn’t mention anything repeatedly.
ABA Formal Opinion 477 was issued, as Bob notes, on May 1, 2017. This was well after the state technical competence bandwagon had started rolling but it dealt specifically with Securing Communication of Protected Client Information, the actual title of the Opinion. It does talk about technical competence quite a bit but, in my opinion, it is within the framework of protecting confidential client information, a specific technical discussion and not that of an overall duty of technical competence.
Next, both Bob and Nicole take the position that in today’s world, technical competence is a given. Their comments seem to echo this line:
For example, a lawyer would have difficulty providing competent legal services in today’s environment without knowing how to use email or create an electronic document.
But that quote isn’t from the Model Rules either. It’s from the ABA Commission on Ethics 20/20 Report issued in August of 2012. And in that report, Comment 8 of Formal Opinion 477 notes that the Commission said, in commenting on the proposed change to Model Rule 1.1:
The 20/20 Commission also noted that modification of Comment  did not change the lawyer’s substantive duty of competence: “Comment  already encompasses an obligation to remain aware of changes in technology that affect law practice, but the Commission concluded that making this explicit, by addition of the phrase ‘including the benefits and risks associated with relevant technology,’ would offer greater clarity in this area and emphasize the importance of technology to modern law practice. The proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.” (my emphasis added)
Finally, Bob, much like everyone discussing this topic, quotes the The State Bar of California’s Formal Opinion No. 2015-193 with it’s “6 things ever lawyer needs to know about technology” emphasis. I hasten to point out that the California opinion was written in August of 2016 and specifically refers ONLY to eDiscovery matters.
Further, the last para of the opinion specifically states:
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Trustees, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar
It is not a discussions of a general duty of technical competence and I am not aware that the California Bar has either offered an opinion regarding such a duty or offered a competency rule change on such. Nor has the California Supreme Court or Legislature amended their rules to reflect such a change.
So Louisiana amended its Code of Professionalism (not ts Rules of Professional Conduct) to reflect a duty of tech competence and in one para seemed to follow Model 1.1 by saying:
“I will stay informed about changes in the law, communication, and technology which affect the practice of law.”
Remember that ABA Model Rule 1/1 says
“ … a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
So, we left out the “benefits and risk” clause. That is a major departure form the tone of the ABA Commission on Ethics noted in their 20/20 Report comment. Really?
Sorry but I don’t think so. Long before this Code change, whenever I asked LSBA people ( and I speak at LSBA CLE events quite a bit … I’m talking to folks at the LSBA all the time) about the duty of tech competence I was basically told, “well we feel the duty of competence INCLUDES tech competence and that’s what we tell people who ask.” Exactly as the ABA Commission On Ethics 20/20 Report stated. It’s a reminder of an already existing duty.
Finally, Bob generally and Nicole specifically interpret the Louisiana wording as implying a choice of whether or not to use technology. I personally think that’s splitting hairs in a way the Code doesn’t intend. Perhaps a better word would have been “when” not “if”, but still, do we seriously think anyone is NOT using technology? I mean they could choose not to use a phone either but I’m guessing their work would diminish. Rapidly.
Honestly, you think the Louisiana Bar is telling people they don’t have to use technology? Why not ask all the states who haven’t implemented the recommendations of Comment 18 to ABA Model Rule 1.6 why they aren’t taking ″reasonable efforts″ to protect against the inadvertent or unauthorized disclosure of, or access to, client information? Or ask California why they don’t have any opinion at all. Or ask all the states who passed these nice vague rules if they have passed a subsequent CLE requirement for gaining that tech competence? I think we all know that the answer to that question is two.
But Louisiana has missed the mark? Come on man!!