Most of us know that several states (at least 25) and even some local bars have adopted the ethical duty rule that requires lawyers to stay “technically competent” as part of the ethical obligations of their license to practice law. The official language reads as follows:
ABA Model Rules of Professional Conduct, Comment 8 to Model Rule 1.1:
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.
Over the course of the last several months I have read blogs, participated in webinars and attended conferences, all of which focused on the fact that the rules of “technical competence” are not really defined. They continue to discuss that there are no standards, checklists, certifications or a path that outlines how to obtain technical eCompetence™. I’m surprised at this and would offer that while many attorneys are relying on a clear definition, they don’t even know if their state has adopted these requirements (which might be considered step number one). But more importantly, I hope that this is not the defense they will use when asked why they have not pursued this ethical duty. This is the “no spin zone.” Let’s just call it as we see it. Are we implying that since the ABA or the local bar associations haven’t provided a clear definition and path that you can just sit idle? Isn’t there something that can be done to start the process even if it is refined later? I have empathy for the clients that don’t know what they don’t know. But for attorneys who choose to ignore the rule, I have no empathy.
I’ve heard many reasons why lawyers don’t participate . . . billable hours, this is how we’ve always done it, etc. Unfortunately, their lack of pursuit in this regard sets the tone for the rest of the staff and stifles the desire for continued education. Perhaps there are a few here and there in the organization that take it to the next level and attend monthly luncheons in an attempt to engage in continuous education. There is a lot to be said for people who pursue additional learning to make them better at their job.
Not knowing where to start can be overwhelming. Which workflows, which technologies? Start by studying the EDRM and identifying the processes, the rules and the technologies that align with each phase. Identify your weak areas and start there.
Support staff is awesome and that’s what they are there for but we need to stop relying on them 100% in this area. Leverage them of course but the attorneys will be better equipped during their strategic thought process of the case as a whole if they can become educated enough to hold an intelligent discussion with the client, the staff, opposing counsel, and the court as it relates to the benefits and risks associated with technology.
What’s the legacy you want to leave in your organization? By breaking down the complexities of working with electronic discovery and understanding the risks and benefits associated with the technology, you achieve eCompetence™! Be the one that paves the way and encourages growth and pride knowing you’re doing the best you can for your clients.