The legal profession underwent a sea change last month, but few
lawyers even knew about it. In a historic but little-heralded move,
the American Bar Association said that lawyers must be competent
not only in the law and its practice, but also in technology.
The ABA's House of Delegates, meeting in August, voted to amend
the comment to its Model Rule of Professional Conduct governing
lawyer competence to make clear that a lawyer's skill set must
The rule itself, Rule 1.1, remains unchanged. It says: "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 change was to the comment that follows the rule, which
provides interpretative guidance as to the rule's application and
meaning. The revised comment adds the clause shown in italics
"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."
While not binding on lawyers, the ABA Model Rules serve as models
for the ethics rules in most states. Only time will tell whether
state ethics regulators will adopt this change, but I predict most
The change regarding competence was one of several amendments to
the model rules approved at the annual meeting. The changes
resulted from the work of the ABA Commission on Ethics 20/20, which
spent three years reviewing legal ethics rules in light of advances
in legal technology and the increasing globalization of the legal
Too little, too late?
There are some who argue that this urging of technological
competence is too little, too late. It is hard to argue with that
position. Although the 20/20 Commission's report alluded to "the
sometimes bewildering pace of technological change," the fact is
that lawyers have been using PCs since the late 1970s and the
Internet for at least two decades.
Still, the pace of technological change has accelerated in
recent years, driven by our increasingly digital culture and an
unprecedented degree of digital mobility. And, even in the face of
so much change, Luddites remain. Just recently, a lawyer told me
that he refuses to use email in his law practice and he has no idea
what a blog is. It is one thing to draw a line in the sand, but it
is something else altogether to bury your head in it.
Interestingly, the 20/20 Commission takes the position that this
duty of technological competence is nothing new. "Comment 
already encompasses an obligation to remain aware of changes in
technology that affect law practice," the commission says in its
report to the ABA. "The proposed amendment … does not impose any
new obligations on lawyers. Rather, the amendment is intended to
serve as a reminder to lawyers that they should remain aware of
Luddites need not apply
That assertion may come as a surprise to many lawyers. But for
lawyers in areas of practice that rely heavily on technology - such
as electronic discovery - the need to be competent in technology
should be obvious. It is impossible to competently (let alone
zealously) represent a client in a matter involving electronically
stored information without a better-than-average familiarity with
technology. You cannot be both a Luddite and an advocate in
e-discovery - at least not for long.
In fact, some argue that the 2006 e-discovery amendments to the
Federal Rules of Civil Procedure already imposed on lawyers who
handle e-discovery a duty of technological competence. A 2008
article by the legal ethics counsel for the District of Columbia
Bar, "R U Competent?" made this point, citing a 2008 ABA report
that concluded that the FRCP changes required lawyers to understand
their clients' IT systems, know how to identify ESI, and have
knowledge regarding digital file formats, sources of electronic
data, and how computers operate.
Note that I said that the need for technological competence in
e-discovery and certain other fields should be obvious.
Regrettably, it isn't always so. As I said above, many lawyers
choose to stick their heads in the sand when it comes to anything
involving technology - even when the technology benefits both them
and their clients.
And let's also face the fact that this stuff isn't always easy.
With reference to e-discovery, U.S. Magistrate Judge John M.
Facciola, a Washington, D.C. jurist who is considered a leading
authority in the field, has described the complexity of just one
aspect of e-discovery - search - as taking legal professionals into
an area "where angels fear to tread."
Fortunately, the ABA rule does not require that we all run out
and enroll in advanced courses at MIT. We can understand the
"benefits and risks" of technology without understanding its
most-intricate inner workings. I have long believed that a key to
technological competence is knowing what you do not know. Lawyers
do not have to be IT professionals or engineers - but they need to
know when they need one.
Of course, even knowing what you do not know requires a higher
level of understanding about technology than many lawyers have
today. That is why this rule amendment from the ABA is welcome, if
overdue. While I can't argue with those who say this is "too
little, too late," I prefer to view it as "better late than never."
Maybe this official pronouncement from the ABA will force a few
lawyers to pull their heads out of the sand.
Robert J. Ambrogi is a lawyer and media consultant based
in Rockport, Mass., and author of the blog LawSites,