THE DUTY OF TECHNOLOGICAL COMPETENCE AND ALABAMA LAWYERS: THE TIME FOR ADOPTION IS NOW.

• Author: Browning, John G.

1. INTRODUCTION

   In 2012, a sea change occurred in the legal profession, particularly for those who came of age in the "good old days" when you ventured to court armed with a legal pad rather than an iPad. Back then, being competent in representing one's clients meant staying abreast of recent case law and statutory or code changes in one's area of practice. But in August 2012, the American Bar Association ("ABA")--following the recommendations of its Ethics 20/20 Commission--formally approved a change in the Model Rules of Professional Conduct to make it clear that lawyers have a duty to be competent not only in the law and its practice, but in the technology relevant to the practice as well. Specifically, the ABA's House of Delegates voted to amend Comment 8 to Model Rule 1.1, which deals with competence, to read 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. (1) Now, of course, the ABA Model Rules are precisely that--a model. They provide guidance to states in formulating their own rules of professional conduct, and each state is free to adopt, ignore, or modify the Model Rules. For a duty of technological competence to apply to lawyers in a given state, that state's particular rulemaking body (usually the state's highest court) would have to adopt it.

   In the ten years since Comment 8 to Rule 1.1 was amended, forty states have adopted the duty of technological competence by formally adopting either the revised comment to Rule 1.1 or some variation of it. For some of these states, even before the formal adoption of a technological competence requirement, there were clear indications that lawyers would be held to a higher standard when it came to technology impacting the practice of law. For example, in a 2012 New Hampshire Bar Association ethics opinion on cloud computing, the Bar noted that "[c]ompetent lawyers must have a basic understanding of the technologies they use. Furthermore, as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes." (2)

   Even the one state that has not adopted the ABA Model Rules, California, has joined the tidal wave of states adopting a duty of tech competence. (3) It adopted Comment 8 to Model Rule 1.1 in February 2021. (4) Yet even before this formal adoption, California acknowledged the importance of technological competence. In a 2015 formal ethics opinion on e-discovery, the California Bar made it clear that it requires attorneys who represent clients in litigation either to be competent in e-discovery or to get help from those who are competent. (5) Its opinion even expressly cited Comment 8, stating "[m]aintaining learning and skill consistent with an attorney's duty of competence includes 'keeping abreast of changes in the law and its practice, including the benefits and risks associated with technology.'" (6)

   However, there are ten states that have lagged behind in terms of adopting a duty of technological competence for attorneys: Alabama, Georgia, Mississippi, South Dakota, Oregon, Nevada, Maine, Maryland, New Jersey, and Rhode Island. This article will focus on Alabama and why the need to formally embrace a duty of technological competence can be crucial for Alabama lawyers. We will begin with a look at just what is meant by technological competence, and will examine how other states have varied in their approach to adoption of this standard. Then, we will move on to a discussion of where Alabama currently stands and how actual cases and disciplinary actions involving Alabama lawyers underscore the need for adopting a duty of technological competence. Finally, the article will look at a cross-section of cautionary tales from across the country involving lawyers' technology missteps--both to demonstrate the wide variety of ways in which lawyers' lack of competence can adversely impact themselves and their clients and to show Alabama attorneys the very real dangers of technological incompetence, as "there but for the grace of God go I."

2. TECHNOLOGICAL COMPETENCE AND ITS ADOPTION ELSEWHERE

   Bring up the issue of "technological competence" in a group of lawyers, and chances are the reactions you will receive will vary along generational lines. Older lawyers may shudder at the thought of having to "go back to school," or dread the prospects for viral humiliation at being the next lawyer to mistakenly adopt a cat persona as a visual overlay in a virtual court hearing. (7) Younger lawyers will likely chuckle at the thought of worrying about "old" technology like Facebook, Twitter, and email while they are communicating on collaborative platforms like Slack. For the rest, they may have some sense of the importance of technological competence to the effective conduct of their lawyerly duties but are not really sure what the standard means.

   And, truthfully, the ABA's standard in Comment 8 does not provide any bright line rules, boundaries, or roadmap to follow in determining whether a lawyer has breached this ethical duty of technological competence. There are lawyers who rely on data analytics in assessing probable trial outcomes, while others read verdict reports. Similarly, some lawyers may use artificial intelligence during voir dire to correlate information on human behaviors based on patterns sourced from public data sets, while other lawyers use the tried and true verbal questioning of prospective jurors to ascertain their viewpoints. Can it be said that one group of lawyers is behaving ethically and competently while the other one is not? Cost is another issue. Use of technology that might be viewed as reasonable and economically feasible for one engagement may not make financial sense for another.

   In reality, the standard is purposefully vague, not merely because of the challenge of deciding on and articulating defined criteria for "technological competence." Comment 8 refers to the benefits and risks associated with "relevant technology." Relevance, however, will differ by practice area. Should a transactional lawyer doing estate planning be considered less "competent" because she is not conversant in certain technologies more germane to a litigation practice, like e-filing or e-discovery tools? Of course not. Another reason for the vagueness of this standard is the fact that the law and its practice can never keep pace with technological innovation. Law practice management software is far different today than it was just fifteen years ago, and the practitioners of tomorrow may look back at what we viewed as "cutting edge," but which to them is merely "quaint."

   The standard of technological competence is meant to be viewed broadly, lest we place lawyers at constant risk of disciplinary violations and malpractice exposure in a world characterized by fast-paced technological changes. Consequently, technological competence should be viewed as a bar that continually rises. While a lawyer may never truly "attain" total technological competence, he should continually strive to stay informed and remain tuned in to the technological changes that are relevant to his practice.

   Rule 1.1 states that competence in representation demands the "legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." (8) Black's Law Dictionary defines competence as "the mental ability to understand problems and make decisions." (9) The same source defines technology as "[m]odern equipment, machines, and methods based on contemporary knowledge of science and computers." (10) Read in conjunction, technological competence may be defined as "the mental ability to understand problems and make decisions regarding and using modern equipment, machines, and methods based on contemporary knowledge of science and computers."

   Some of the disciplinary cases meant to serve as examples of a lack of technological competence actually reflect a deeper lack of core competencies. For example, in 2021, the Supreme Court of Ohio upheld a disciplinary board finding that attorney Kimberly Valenti was not "sufficiently technologically competent" in her handling of multiple client matters. (11) Among other things, she had filed pleadings with the courts after deadlines had passed, scheduled a deposition the same day as a court hearing, and failed to notify either the court or her client about the scheduling conflict. (12) The board recommended Valenti's suspension from the practice of law for six months, along with a requirement that she complete six hours of continuing legal education ("CLE") in law office management with a focus on law office technology and calendar management. (13) While calendaring tools and case management technology certainly would have been helpful to Ms. Valenti, viewing this solely as a lack of technological competence ignores a deficiency that has nothing to do with technology. Plenty of lawyers still employ handwritten calendaring, whether solely or in conjunction with an electronic version. Valenti's case speaks to deeper concerns with organization and time management skills.

   The reaction to Comment 8 by jurisdictions can be loosely categorized as follows: (1) those jurisdictions either that have not yet adopted it (like Alabama) or that have considered and rejected its language; (2) those states that have adopted Comment 8 verbatim; and (3) those states that have adopted a modified version of Comment 8. In the first category, Washington, D.C. stands out as an example. Its competency rule reads "a lawyer should keep abreast of changes in the law and its practice[,] and engage in such continuing study and education as may be necessary to maintain competence." (14) According to...