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Technological competence for lawyers - an introductory overview

In 2012, the American Bar Association amended its Model Rules to include language requiring that lawyers in that jurisdiction maintain technology competence as part of their ethical obligations. Model Rule 1.1 reads:

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. (emphasis added)

Since that time, 35 state Bar Associations have formally adopted that requirement: see https://www.lawsitesblog.com/tech-competence (22 July 2019).

Whilst the NSW Bar Rules only express a general requirement to act with “competence”, it is undoubtedly the case that for barristers to discharge their obligations pursuant to the Rules, it is necessary for them to “keep abreast of changes in legal practice, including the benefits and risks associated with relevant technology” (being the terminology used in ABA Model Rules 1.1).

For example, as computers have become more ubiquitous, and the volume of data recorded has grown, the likelihood of that data becoming forensically significant has increased with it. And with it come evidentiary challenges relating to provenance, authenticity, reliability, interpretation and manipulation.

Beyond the courtroom, legal technology promises to assist barristers to discharge their professional duties, and deliver legal services in a more efficient manner in a number of ways, including:

  • practice management systems;

  • process management;

  • project management;

  • e-discovery;

  • document management;

  • document automation;

  • communication tools; and

  • data analysis.

Once it is accepted that barristers have a duty to be technologically competent, the next question becomes, what strategies can I use to develop or maintain technological competence? There is no easy answer. Maintaining technological competence requires maintaining an awareness of new developments, regularly evaluating available tools, and seeking training in new technologies.

More posts to follow on this topic.

Resources:

1.    ABA Tech Report 2018 https://www.americanbar.org/groups/law_practice/publications/techreport/ABATECHREPORT2018/2018TechTraining/

2.    State Bar of California Formal Opinion No 2015-193 – technology competence in the context of ediscovery http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202015-193%20%5B11-0004%5D%20(06-30-15)%20-%20FINAL1.pdf

3.    https://abovethelaw.com/2017/11/ok-we-get-technology-competence-but-how-do-we-get-technologically-competent/

Anton Hughes