Question

I have heard you and others speak about the need to be competent and understand the different types of technology that I use in my practice. What does being competent really mean?

Answer

What you are referring to are recent amendments to the Wisconsin Rules of Professional Conduct in which the Wisconsin Supreme Court adopted and incorporated various changes to the ABA Model Rules and a comment to the ABA Model Rules. One of the changes was to the comment to SCR 20:1.1, which is the competence rule of the Wisconsin Rules of Professional Conduct. This rule 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.”

The ABA Model Rules comment that was changed under this provision indicates that a lawyer must keep abreast of changes in the law and its practice, “including the benefits and risks associated with relevant technology.…” The essence of this comment is that lawyers need to understand how they use different types of technology and different types of electronic devices to provide services to their clients and also understand the benefits and the risks of using these new technology advancements.

As has been often stated, this comment does not mean that all lawyers must go back to school to obtain an electrical engineering or computer science degree, but it does mean that lawyers need to understand the different types of technology that they use to practice law.

A recent opinion from the ABA Standing Committee on Ethics and Professional Responsibility (Formal Opinion 477, May 11, 2017) gave some additional insights for lawyers on this requirement for competence in the use of technology as part of a lawyer’s practice. In the opinion, the standing committee cited to the report from the ABA Commission on Ethics 20/20 in which this change to the comment was addressed. The commission stated the following:

“Model Rule 1.1 requires a lawyer to provide competent representation, and Comment [8] specifies that, to remain competent, lawyers need to ‘keep abreast of changes in the law and its practice.’ The Commission concluded that, in order to keep abreast of changes in law practice in a digital age, lawyers necessarily need to understand basic features of relevant technology and that this aspect of competence should be expressed in the Comment. For example, a lawyer would have difficulty providing competent legal services in today’s environment without knowing how to use email or create an electronic document.”

[A] lawyer must keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.

This commentary again emphasizes that a lawyer does not have to receive a professional degree in computer technology, however a lawyer must “understand basic features of relevant technology.” The report went on to suggest that a lawyer would have to know how to use email and how to create an electronic document, which certainly makes sense in the age of electronic court filings. The lawyer does not have to be proficient in these activities and certainly can hire other staff to assist himself or herself, but the lawyer still must have a fundamental understanding of how these technology systems work in order to be competent and to properly supervise those staff who assist the lawyer in providing representation.

Lawyers should do an inventory of the different types of technology systems and electronic devices that they use in their law practice and understand the fundamentals of how those systems and devices actually work. Lawyers can no longer simply ignore the different aspects of technology and how technology has changed the practice of law.

Lawyers also must be prepared to advise clients on their use of technology when communicating with the lawyer, especially to ensure the confidentiality of client communications. The lawyer’s ethical duties to ensure confidential communications and handling of client information will be addressed in future articles.