This article originally ran on SuccessfulFirm.com. We are reprinting a portion of it for our readers who are likely very focused on ways to maintain technology competence! You can find another link to the full article below.
The American Bar Association (ABA) Model Rules of Professional Conduct serve as ethical models for the legal industry. Rule 1.1 outlines an attorney’s ethical duty to provide “competent representation to a client” and defines competence in the areas of legal knowledge and skill, thoroughness and preparation, and retaining or contracting with lawyers. In 2012, the ABA amended Comment 8 of the rule to address technology competency and an attorney’s duty to maintain competence.
But what does technology competence mean and how is it obtained and maintained?
The Successful Firm Project explored these questions and more in The Duty of Technology Competence Q&A Today Huddle with panelists Bonnie Beuth, Tony Gerdes, and Michael Quartararo.
How to Maintain Technology Competence
Advances in legal technology are continuously improving the business of law, allowing firms to operate more efficiently and serve clients in new ways. But as new technology emerges, so to do questions regarding an attorney’s duty of technology competence and ethical responsibilities. In 2012, The American Bar Association (ABA) attempted to address these questions by revising Rule 1.1 with the amendment of Comment 8.
“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 ABA’s guidance on the issue of technology competence is limited to this brief statement, leaving it up to the 40 states that have adopted the rule to further interpret it for themselves. There is not an industrywide standard for legal technology competence, nor is there guidance on how to prioritize and engage in training.
“While that’s a great thing to say, what does it mean and does it have any teeth?” asks Michael Quartararo, President of the Association of Certified E-Discovery Specialists (ACEDS). “What happens if someone is not technologically competent? Do they get sanctioned, do they get fired, or is the client simply unhappy?”
The definition of technology competence is as varied as the technology options themselves. A firm’s size and practice area play a large role in how firms view competency, and being technologically competent means different things depending on the role within a firm. For instance, while it is important for a firm’s equity partner to understand what technology is available, it’s the duty of the associate to properly utilize the technology.
“Those attorneys who distribute the work, whether they are equity partners or not, they have to understand what they are asking their firm to do,” says Bonnie Beuth, Information Systems Trainer at FordHarrison. Additionally, Beuth says it’s important for equity partners to prioritize the technology competency training of firm associates. “If you really are creating a high standard for those groups to be trained, you are effectively leaning toward the future and how [21st century] technology and technology competence will be viewed.”
To begin the path to technology competence, the panelists recommended the following:
Begin with your own definition. While the ABA provides a broad overview of technology competence, it fails to give firms specific steps and regulations. Therefore, firms must define technology competence for themselves by exploring elements such as practice needs, firmwide roles, workflows, and current technology already in place. Additionally, firms should survey clients to determine how best to serve them and determine the role technology will play in meeting client needs. Once a competency definition is in place, firms must be willing and ready to reexamine and adapt it as needed.
“Any standard that is defined has to be fluid. It literally does change in a day. When everyone went home in the pandemic, we rolled out Zoom and Microsoft Teams; we changed the competency level and the competency definition,” says Beuth.
Read the rest of the recommended strategies here.
Savvy Training & Consulting is a trusted partner of Procertas, which provides a Legal Technology Assessment for law firms. With results from that assessment, our SavvySMART Content Library provides all of the training materials you need to achieve and maintain technology compliance. Contact Savvy today for a short demo.