Technical Competence

December 16, 2019 § 2 Comments

Are you technically competent enough to protect your clients’ interests and represent them zealously?

As Philip Thomas pointed out in a blog post last month, 37 states already impose a duty of technical competence in their ethical rules. Mississippi will probably be the 50th, based on past experience, but most of us will probably be around when the requirement is imposed in Mississippi.

So what is technical competence, anyway? Here’s how one proposed rule defines the duty:

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 [My emphasis].

All of that looks like the existing duty to stay current with case law and changes in rules and practice EXCEPT for the highlighted language “including the benefits and risks associated with relevant technology.” That’s a pretty broad statement. What exactly is relevant technology?

Some benefits and risks are apparent to even the most technically illiterate person. For example, MEC, computer word processing, computer billing, and online research we can recognize are benefits. On the other hand, if you send an email with confidential information to opposing counsel, or if you send a document with unredacted metadata, or if don’t protect your servers from hackers, you soon find out what are the risks. I guess that’s part of what the rule considers “relevant technology.”

Those are fairly obvious and familiar to almost all of us. But there are developments in technology and the law that only a few know about and it will be a while, if ever, before they reach the mainstream. If I knew what they were, I’d itemize some for you. Are those cutting-edge changes included in what one is chargeable for?

As of right now, I think lawyers are already under a duty to understand the risks and benefits of internet communication, electronic discovery as practiced by the great majority of lawyers, wireless communication, metadata, and internet security, and to take appropriate steps to protect from or reap advantages out of them.

Fortunately, the number of older lawyers (my age group) who only a few years ago proudly boasted of computer illiteracy (“I don’t even know how to turn one on! Haw, haw, haw!”) is shrinking. Some of that shrinkage may be due to attrition, but I think mostly it’s due to the fact that they have come to understand that keeping up with changing technology, in some degree, is vital for survival in the profession.

One thing you might find helpful is to follow Mr. Thomas’s blog. He often touches on technical developments in the law.



§ 2 Responses to Technical Competence

  • Bill Featherston says:

    If a Chancery Court district prohibits computers, smart phones and smart watches from the Courtroom and anterooms, how can a lawyer effectively practice with the technology that benefits lawyers?

    • Larry says:

      As you know, every chancellor has their own preferences. There is still plenty of technology available for outside the courtroom, including calendaring, case management, communications, filing, word processing, and much more. I wonder whether the chancellor(s) you referred to would be open to a request to make exceptions for specific uses. It may be worth a try. I don’t allow cell phones, but I did grant a lawyer’s request to refer to his phone where he had his research in a file stored in the cloud.

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