I’ve said it once, and I’ll say it again: technology is advancing at unprecedented rates. The impact of technology on our day-to-day lives is inescapable and the practice of law is not immune. Technology’s reach can be felt across the legal spectrum, from the use of digital evidence in the courtroom and ediscovery, to using artificial intelligence and cloud computing software to streamline law firms and the practice of law.
That’s why, in response to the rapid pace of technological change, the American Bar Association adopted of an amendment to Comment 8 to Model Rule 1.1 in 2012. The comment imposed an ethical duty on lawyers to stay abreast of changes in technology. The amended comment reads as follows:
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).
Following the enactment of this amendment, 31 states have since adopted the revised comment to Rule 1.1, including New York, which did so in March of 2015.
Then in 2016, Florida became the first state to require that lawyers complete 3 credits of legal technology CLE per biennial cycle as part of their obligation to stay abreast of changes in technology.
Since then, no other state showed signs of following that course - until now. Last month, the North Carolina State Bar Council voted to adopt proposed amendments relating to the duty of technology competence. The proposed rules provide a definition of “technology training” and mandate “that one of the 12 hours of approved CLE required annually must be devoted to technology training.” If adopted, the amendments will go into effect in 2019.
The Council defined “technology training” as follows: “(T)he primary objective of the program must be to increase the participant’s professional competence and proficiency as a lawyer. Such programs include, but are not limited to, education on the following: a) an IT tool, process, or methodology designed to perform tasks that are specific or uniquely suited to the practice of law; b) using a generic IT tool process or methodology to increase the efficiency of performing tasks necessary to the practice of law; c) the investigation, collection, and introduction of social media evidence; d) e-discovery; e) electronic filing of legal documents; f) digital forensics for legal investigation or litigation; and g) practice management software.”
The Committee also provided clarification regarding the types of CLEs that will qualify for a technology credit - and which ones would not: “A program on the selection of an IT information technology (IT) product, device, platform, application, web-based technology, or other technology tool, process, or methodology, or the use of an IT tool, process, or methodology to enhance a lawyer’s proficiency as a lawyer or to improve law office management may be accredited… A program that provides general instruction on an IT tool, process, or methodology but does not include instruction on the practical application of the IT tool, process, or methodology to the practice of law shall not be accredited. The following are illustrative, non-exclusive examples of subject matter that will NOT receive CLE credit: generic education on how to use a tablet computer, laptop computer, or smart phone; training courses on Microsoft Office, Excel, Access, Word, Adobe, etc., programs; and instruction in the use of a particular desktop or mobile operating system.”
Will other states follow suit and mandate technology CLEs for lawyers? Only time will tell. But all signs point to this being the prudent course of action. After all, technology is here to stay and ignoring it is no longer an option. Lawyers need to stay up-to-date and a helpful nudge in the right direction by state bar associations may be the best solution for those attorneys who are unwilling to undertake this task on their own.
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at firstname.lastname@example.org.