Technology Competence: It’s Your Ethical Obligation

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Technology: it’s a topic many lawyers have chosen to ignore. There are many reasons for this. First, for hundreds of years, lawyers practiced law quite adequately without the assistance of technology, thank you very much. And then, even when it became apparent that technology could improve some aspects of legal practice, it was still possible to function without it.

And then, right after the turn of the millennium, everything changed. Technology began to advance at incredible rate, affecting all aspects of our culture, from the ways that we consumed entertainment and the methods that we used to communicate with loved ones and friends to the tools used to conduct business. With the advent of social media, smartphones, tablets, cloud computing, wearables, and the Internet of Things, the world as we knew it was turned upside down. And these changes occurred quickly — so much so that if you weren’t paying attention, it seemed as if the world was passing you by.

Such was the case for the vast majority of lawyers, many of whom simply put on blinders and ignored the rapid advancements. At first, some believed that the changes were more of a fad than a phenomenon. And when it became clear that it was the latter, many felt overwhelmed at the thought of trying to catch up, and simply followed the path of avoidance.

However, beginning in 2012, that option was removed from the table as the tide began to turn. That was the year that the American Bar Association adopted an amendment to Comment 8 to Model Rule 1.1, imposing an ethical duty on lawyers to stay abreast of changes in technology. The comment now reads as follows:

Maintaining Competence

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 amendment was enacted, 23 states have followed suit and have likewise adopted
the revised comment to Rule 1.1. New York is one of those states and joined the bandwagon in March of 2015.

If you still remain unconvinced that you have an obligation to learn about and understand technology, then perhaps the words uttered by the president-elect of the American Bar Association as she accepted the position last week at the ABA’s annual meeting in San Francisco will persuade you: “(I)t is clear that the longer our profession refuses to adopt and adapt its practices to new technologies, the more opportunities there are for alternative services providers and web-based platforms that have found ways to use technology to provide legal services in a more efficient and less costly manner—in many cases reaching people previously unserved by traditional providers of legal services.”

Let this be a rallying cry to my fellow attorneys: technology is here to stay. Hiding your heads in the sand is no longer an option. You have an ethical duty to learn about technology and make educated, informed decisions when choosing the right tools for your law practice. It won’t be easy and it will take time and effort. But it will pay off in the long run.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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 West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].