In September, Michigan adopted an ethical duty of technology competency for lawyers. This makes Michigan the 37th state to adopt the standard since the American Bar Association amended Comment 8 to Rule 1.1. in its Model Rules of Professional Conduct in 2012. The Michigan amendment will take effect on January 1, 2020.
To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including the knowledge and skills regarding existing and developing technology that are reasonably necessary to provide competent representation for the client in a particular matter. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances.
The amendment to the rule varies from the ABA’s version and includes the additional language “for the client in a particular matter.”
“The reason we strayed from the model rule and added the language ‘for a client in a particular matter’ was to clarify that if a lawyer does not need to use technology to represent a client competently in a particular matter (or even a particular type of practice), then the lawyer does not need to keep abreast of all technological developments available to lawyers more generally,” said Kathryn Hennessey, Public Policy Counsel at the State Bar of Michigan. “In other words, the lawyer only needs to maintain technological competence to provide competent representation with regard to his or her clients and not maintain technological competence with regard to a more generalized concept of competent representation.”
The Michigan Supreme Court adopted the language as recommended by the Michigan State Bar, according to a spokesperson from the Court.
In October 2015, Illinois became the 15th state to adopt an ethical duty of technology competency. Illinois’ amendment also mirrored changes to the ABA’s model rule. Illinois’ amended Rule 1.1, Comment 8, now reads (modified text underlined):
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.
The Illinois rule change went into effect on January 1, 2016.
There are countless resources to help lawyers maintain their technology competency. Here are a select few:
- ABA’s “Don’t Let Technology ‘Bite You in the Backside’ – Ethically Speaking
- ISBA’s Technology Competency Series
- CBA’s Law Practice Management and Technology Events
How do you maintain your technology competency? Let us know in the comments below.
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