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Massachusetts has joined the ranks of states requiring attorneys to keep pace with technology as part of their ethical obligations. Among the changes the Supreme Judicial Court authorized to the state rules of professional conduct was the addition of a comment to Rule 1.1, which outlines a lawyer's duty to provide competent representation.
The change comes as more and more states, and the ABA, are recognizing that lawyers who don't understand new technology aren't just adorable throwbacks, but could be endangering their clients' interests.
Though the text of Rule 1.1 itself remains the same, the court authorized adding a new explanatory comment: "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, and engage in continuing study and education."
The new comment is, word for word, the same as the comment added to ABA Model Rule 1.1 in 2012.
As technology becomes more and more integral to our lives, lawyers can no longer afford to be Luddites, as though computers and the Internet were little more than a passing fad. They're here to stay, and their ubiquity in commerce and communications means that a lawyer's failure to understand how computers work -- or at least hire someone who does -- compromises clients.
Massachusetts is hardly the first state to come up with this idea, however. Last August, the State Bar of California issued a proposed formal opinion that would require lawyers to understand how e-discovery works, including what kinds of things are storable and discoverable and how electronic storage systems work.
Ten years ago, a federal district judge admonished in-house lawyers for not knowing how their own company's backup retention system worked, resulting in the loss of highly probative evidence. That case, Zubulake v. UBS Warburg, isn't remembered as an employment discrimination case, but as a wake-up call for electronic discovery. While some states over the years have inferred that understanding technology is folded into a lawyer's duty to competently represent her client, few have been as explicit as Massachusetts.
While e-discovery is at the front of everyone's minds when the phrase "legal technology" comes up, the duty described by the new Comment 8 is by no means limited just to litigation. The Oklahoma Bar Journal pointed out, describing the change to the ABA model rules in 2013, that it can extend to legal research, too. "[A] lawyer not competent at CALR [computer-assisted legal research] is increasingly at risk for being found negligent when failing to find relevant authority and information on the Internet," the journal said, quoting another article from Kentucky.
So don't think you're exempt just because you're not engaging in e-discovery. "Legal technology" is a big universe, and even though it might be difficult to stay on top of new advances, failing to do so could definitely adversely impact a client.
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