Do as we say, not as we do.
That’s the message that the regulators send, as they fall in lock step behind the ABA in adopting the ABA Model Code’s rule requiring lawyers to keep abreast of the benefits and risks of technology, as reported by Bob Ambrogi at Law Sites. According to Bob, thirteen states have adopted the ethical duty of technical competence, with several others slated to follow suit, according to commenters.
So what are the bars doing to help solos and smalls gain technological competence? Not much, from what I can tell. For example, it would be fairly easy to create standard website terms of service that lawyers could use at their websites, but I’ve not seen a product like that. Likewise, except for my 21st Century Retainer Agreement book (click for Table of Contents or purchase), there’s very little available on how lawyers need to incorporate obligations – such as preservation of digital files, accepting credit card payment or using the cloud – into representation agreements.
Many bars aren’t all that tech savvy either. Some don’t yet allow lawyers to use credit cards to pay bar dues, while others don’t have list serves, or a referral service where clients can register online. How can state regulators expect lawyers to be tech savvy when the bar associations that serve members are woefully behind the times?
Finally – and on a different topic – will lawyers face discipline for lacking tech competence? That’s also being discussed in the comments at Bob’s site, with most agreeing that the standard is simply too vague to carry much weight. I agree that the standard is vague – and that bars aren’t giving lawyers much guidance, but I can see the provision being cited gratuitously in every ethics opinion that touches on technology whether it’s e-discovery or use of social media – even though the duties they may have violated such as client confidentiality or attorney advertising apply whether lawyers use tech or not.
What’s your view of these new technical competence requirements? Chime in here below – or join the conversation at Law Sites.