Question

You have spoken at various times about the need to be competent in using technology when representing a client. What does that really mean?

Answer

There is no specific definition of “competence” in the Rules of Professional Conduct. SCR 20:1.1 of the Wisconsin Rules is titled “Competence” and provides as follows:

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Obviously, this rule is open ended and does not establish a bright-line test of what must or must not be done to provide competent representation. It is clear, however, that lawyers must pay attention to and use the necessary amounts of knowledge, skill, and preparation to provide proper representation to clients.

The scope of competence has been expanded by changes to a comment to this rule, to clearly indicate that lawyers must have a clear understanding of the technology that they use as part of the representation of a client, whether it is using email to communicate with the client or using electronic research programs to gain the legal knowledge necessary to provide advice and to advocate for a client. This does not mean that lawyers must become computer experts; it does mean that lawyers must pay attention to the programs and technology being used in the representation and understand the fundamentals of that technology, particularly regarding security.

Comment [8] to Model Rule 1.1 gives lawyers the only real guidance as to what must be done:

“Maintaining Competence. [8] 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.”

Much discussion about competence has focused on protecting client information from attack or some type of hacking by another party that would result in the disclosure of client information. Lawyers cannot guarantee the protection of all client information, but it is certainly an obligation to be aware of the security measures that are available or should be taken to protect client information. Lawyers also must be aware of the different technology advances that can be used to gather information or do legal research that will assist them in representing clients.

It is safe to say that a competent lawyer uses experience, legal resources, and technology resources to obtain all available information to provide for effective representation. When lawyers think about simplifying their lives, they should keep in mind whether that can actually occur because of the need to be thorough in obtaining information and legal research necessary to provide representation to clients.

» Cite this article: 94 Wis. Law. 12-17 (October 2021).