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The Attorney's Ethical Duty to Maintain Technological Competence

By Alexandra G. Ah Loy

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According to an American Community Survey Report published by the U.S. Census Bureau in 2015, the percentage of households in the United States with a computer has steadily increased from 8 percent in 1984 to 87 percent in 2015.1 Likewise, the percentage of households using internet has steadily climbed from 18 percent in 1997 to 77 percent in 2015.2 Computers have become an integral part of everyday life. With advancements in technology, the practice of law has necessarily evolved as well. It would be unfathomable for a lawyer today to use a typewriter in his day-to-day practice, and lawyers practicing in the 1980s would have dismissed as fantastical the idea that legal research could be performed via an “app” on a hand-held cellular phone. The reality is, most entry-level lawyers of the 2030s will never have heard the expression “word processor.” As technology continues to advance, lawyers have an ethical obligation to stay abreast of practical developments in technology and to incorporate such advancements into their practice.

Lawyers have a duty to provide competent representation to clients. The Oklahoma Rules of Professional Conduct (ORPC) provide that “[c]ompetent representation requires the legal knowledge, skill thoroughness, and preparation reasonably necessary for that representation.”3 Since 1988, Comment 6 to Rule 1.1 has explained, in part, that maintaining competence meant to engage in continuing study and education.4 In 2008, Comment 6 to Rule 1.1 was amended to include “a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all legal education requirements to which the lawyer is subject.”5

Rule 1.1 of the ORPC largely mirrors its counterpart of the ABA Model Rules. In 2012, Comment 8 to ABA Model Rule 1.1 was amended to read:

[8] 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 subjected.6

Most of the states have adopted the duty of technological competence referenced in the ABA Model Rules.7 In 2016, the ORPC were amended to include their first reference to a duty of technological competence. Specifically, Comment 6 to Rule 1.1 was amended to provide:

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject, including the benefits and risks associated with relevant technology.8

Interestingly, Comment 6 to Rule 1.1 varies slightly from that of the ABA Model Rules. Although the clause related to relevant technology is identical, its location within the comment differs. With the ABA Model Rules, the duty of technological competence appears to be that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” 9 Although there is not yet any legal authority on point to address the construction of Oklahoma’s Comment 6 to Rule 1.1, it is arguable that Oklahoma has adopted a lesser standard: “a lawyer should…engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject, including the benefits and risks associated with relevant technology.”10 Thus, it is possible Oklahoma’s Rule 1.1 only imposes a duty upon attorneys to stay apprised of continuing legal education pertaining to technology. The reasoning behind this divergence from the ABA Model Rules is unclear.

Given the recentness in most states’ adoption of the duty of technological competence to Rule 1.1, few courts have had an opportunity to address this unique issue. However, some courts have authored scathing reprimands of attorneys who have defended discovery misconduct with claims of computer illiteracy. For example, in 2014, the Court of Chancery of Delaware flatly rejected such a defense by an attorney, interpreting the amendment to Rule 1.1 to include a duty to either master necessary technological advancements or to hire outside consultants who can assist such counsel in conforming to the duty of technological competence:

Then, during the hearing on the motion for sanctions, National’s counsel offered a different explanation: “I have to confess to this Court, I am not computer literate. I have not found presence in the cybernetic revolution. I need a secretary to help me turn on the computer. This was out of my bailiwick.”

Professed technological incompetence is not an excuse for discovery misconduct. Effective March 1, 2013, the Delaware Supreme Court amended Comment 8 to Rule 1.1 of the Delaware Lawyers Rules of Professional Conduct, which addresses competence, to include maintaining technological competence. The new comment states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology....”5 This language finds parallels in the Pennsylvania Rules of Professional Conduct, where National›s counsel is admitted to practice, and the Model Rules of Professional Conduct. Compare id. with Pa. Rules of Prof’l Conduct R. 1.1 cmt. 8 and Model Rules of Prof’l Conduct R. 1.1 cmt. 8. [D]eliberate ignorance of technology is inexcusable.... [I]f a lawyer cannot master the technology suitable for that lawyer›s practice, the lawyer should either hire tech-savvy lawyers tasked with responsibility to keep current, or hire an outside technology consultant who understands the practice of law and associated ethical constraints. Judith L. Maute, Facing 21st Century Realities, 32 Miss. C.L.Rev. 345, 369 (2013). Legal publications in Delaware and Pennsylvania have discussed the amendments to Rule 1.1 in similar terms. 11

Other courts have expressly recognized the duty upon attorneys to adapt to technological advancements, including learning to use computer-assisted legal research such as WestLaw or LexisNexis. In 2009, the Florida District Court of Appeals noted that “[l]awyers have also become expected to use computer-assisted legal research to ensure that their research is complete and up-to-date.”12 In sum, while courts have not had an opportunity to squarely address the interpretation of the duty of technological competence, there is a prevailing attitude among practitioners that, at a minimum, practicing attorneys have an ethical duty to maintain technological awareness.

Additionally, many states have begun issuing ethics opinions to provide additional guidance as to the precise requirements for technological competence. For example, many states have issued ethics opinions regarding attorneys’ use of “cloud computing,” explaining an attorney must take reasonable care to ensure the conduct of the cloud computing service provider conforms to the rules to which the attorney himself is subjected and outlining various safeguards that attorneys should employ to protect confidential information.13 Similarly, some states have issued ethics opinions explaining that attorneys should take due care to “scrub documents” (i.e., remove metadata) prior to producing electronic documents to opposing parties, and that there is a presumption that disclosure of metadata is inadvertent and would be unethical for opposing counsel to view.14

Finally, it bears noting that there has been a movement among courts toward electronic filing (e-filing) systems. For instance, all three of the federal district courts in Oklahoma have authorized e-filing. Some courts in other jurisdictions have moved toward mandatory e-filing and have been unforgiving with attorneys who refuse to learn how to e-file and at least arrange for someone in their office to e-file for them.15 In practice, filing pleadings electronically can save the time of traveling to the courthouse and copying costs.

For many attorneys there will be a learning curve. However, it is incumbent upon attorneys to adapt with the practice of law and to utilize resources, such as e-filing, which save their clients billable time and costs. Although change can be difficult, the consequences for failing to adapt to changes in the practice of law can be costly, both ethically and competitively. As such, attorneys should embrace a bit of old wisdom from 1867: “In a progressive country change is constant. Change is inevitable.”16 Because advancements in technology are unavoidable, attorneys are behooved to stay abreast of developments and changes
in 
technology and to adapt their practices accordingly.

ABOUT THE AUTHOR
Alexandra G. Ah Loy is a partner at the law firm of Johnson, Hanan, Vosler, Hawthorne & Snider in Oklahoma City where she focuses her practice in civil litigation, including medical malpractice, civil rights defense and subrogation. Mrs. Ah Loy graduated with honors from the OCU School of Law in 2012 and currently serves as secretary of the OCU School of Law Alumni Association Board of Directors.

1. U.S. Census Bureau, American Community Survey (ACS). Computer and Internet Use in the United States: 2015. By Camille Ryan and Jamie M. Lewis. Washington: Government Printing Office, 2017. (ACS-37).
2. Id.
3. Oklahoma Rules of Prof’l Conduct, Rule 1.1 (Competence).
4. Rules of Prof’l Conduct, Rule 1.1, ST RPC Rule 1.1 (1988).
5. Rules of Prof’l Conduct, Rule 1.1, ST RPC Rule 1.1 (2008).
6. ABA Model Rules of Prof’l Conduct, Rule 1.1 (2016).
7. See, e.g., AK R RPC Rule 1.1 (eff. Oct. 15, 2017); AR R RPC Rule 1.1 (eff. June 26, 2014); AZ ST S CT Rule 42 RPC ER 1.1 (eff. Dec. 1, 2003); CO
ST RPC Rule 1.1 (eff. April 6, 2016); CT R RPC Rule 1.1 (eff. Jan. 1, 2014); DE R RPC Rule 1.1 (eff. March 1, 2013); IL R S CT RPC Rule 1.1 (eff. Jan. 1, 2016); IN ST RPC Rule 1.1 (eff. Jan. 1, 2018); KS R Rule 226 RPC KRPC 1.1 (eff. March 1, 2014); KY ST S CT Rule 3.130 (eff. Jan. 1, 2018); MA R S CT Rule 3:07 RPC Rule 1.1 (eff. July 1, 2015); ND R RPC Rule 1.1 (eff. March 1, 2016); NH R RPC Rule 1.1 (eff. Jan. 1, 2016); NY ST RPC Rule 1.1 (adopted March 28, 2015); OH ST RPC Rule 1.1 (eff. April 1, 2015); PA ST RPC Rule 1.1 (eff. Nov. 21, 2013); TN R S. Ct. Rule 8, RPC 1.1 (eff. March 6, 2018); UT R RPC Rule 1.1 (eff. May 1, 2015); VA R S CT PT 6 §2 RPC Rule 1.1 (eff. March 1, 2016); WA R RPC 1.1 (eff. Sept. 1, 2016); WV R RPC Rule 1.1 (eff. Jan. 1, 2015); WY R RPC Rule 1.1 (eff. Oct. 6, 2014).
8. Rules of Prof’l Conduct, Rule 1.1, OK ST RPC Rule 1.1 (2016) (Emphasis added).
9. ABA Model Rules of Prof’l Conduct, Rule 1.1 (2016).
10. Rules of Prof’l Conduct, Rule 1.1, OK ST RPC Rule 1.1 (2016) (Emphasis added).
11. James v. Nat’l Fin. LLC, No. CV 8931-VCL, 2014 WL 6845560, at *12 (Del. Ch. Dec. 5, 2014), not reported.
12. See Hagopian v. Justice Admin. Comm’n, 18 So. 3d 625, 642 (Fla. Dist. Ct. App. 2009), citing Michael Whiteman, “The Impact of the Internet and Other Electronic Sources on an Attorney’s Duty of Competence under the Rules of Professional Conduct, 11 Alb. L.J. Sci. & Tech. 89, 103 (2000) (concluding that computer-assisted legal research “has become recognized as a standard research technique among judges, lawyers[,] and law students, with price being perhaps the only thing holding back all attorneys from utilizing it in their research”).
13. See, e.g., PA Bar Ethics Op. 2011-200; CA Bar Ethics Op. 2010-179, p.3; NV Bar Ethics Op. 33 (2006); NY Bar Ethics Op. 842 (2010).
14. See, e.g., NYCLA Ethics Op. 738 (2008); see, also, AL State Bar Op. 2007-02 (2007) (prohibiting mining of an adversary’s inadvertently produced electronic metadata; AZ Bar Ethics Op. 07-03 (2007).
15. See, e.g., Arrington v. La Rabida Children’s Hosp., No. 06 C 5129, 2009 WL 928922, at *3–4 (N.D. Ill. Apr. 3, 2009).
16. Benjamin Disraeli, leader of the House of Commons, speech on Reform Bill of 1867, Edinburgh, Scotland (Oct. 29, 1867), in Selected Speeches of the Late Right Honourable the Earl of Beaconsfield 487 (T. E. Kebbel ed., vol. 2 1882).

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 10 (December 2018)