The Evolving Duty of Technology Competence, eDiscovery Competence Series Part 1

In two thirds of states, attorneys bear a duty of competence that extends to technology, including competence with eDiscovery technology, ESI sources, and more

In discovery specifically, and in legal practice generally, the role of electronically-stored information (ESI) and new technology has grown exponentially over the past decade, as new sources have proliferated, as new tools have become normalized, and as new communication channels have supplanted the old.  As a result, it has become a practical reality that effective legal practice and effective discovery requires some level of technology literacy and competence, and since 2012, that practical reality has been slowly transforming into a formal requirement, which may come as “a very scary wake-up call for some lawyers.”

A Formal Duty of Technology Competence

In August 2012, the American Bar Association (ABA) implemented changes to its Model Rules of Professional Conduct, which most state bars look to as a model for their own.  Among the changes implemented, was a change to make the need for technology competence explicit.

Model Rule of Professional Conduct 1.1 establishes a lawyer’s general duty of competence in their work, which is the foundational requirement of professional practice:

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 last Comment to that rule covers “Maintaining Competence” over time through continuing legal education (CLE), individual study, and other efforts.  The new change revised that comment to add technology as an explicit focus: 

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.  [emphasis added]

Although this change was spurred in large part by the rapid rise of ESI and eDiscovery, it is not limited to just that area:

Broadly speaking, there are five realms of technological competence reasonably necessary for most engagements. The first realm involves data security . . . .  The second involves electronic discovery . . . .  The third realm involves the technology lawyers use to run their practices . . . .  The fourth realm involves the technology used by our clients . . . .  The fifth realm involves the technology used to present information in the courtroom.  [emphasis added]

Widespread Adoption

In the six years since the change to the Model was implemented, thirty-three states have adopted some form of technology competence requirement for lawyers.  The vast majority of those states have adopted the change either verbatim or without any major differences.  Those twenty-eight states are:

• Arizona (2015)
• Arkansas (2014)
• Connecticut (2014)
• Delaware (2013)
• Idaho (2014)
• Illinois (2016)
• Indiana (2018)
• Iowa (2015)
• Kansas (2014)
• Kentucky (2018)
• Massachusetts (2015)
• Minnesota (2015)
• Missouri (2017)
• Nebraska (2017)
• New Mexico (2013)
• New York (2015)
• North Dakota (2016)
• Ohio (2015)
• Oklahoma (2016)
• Pennsylvania (2013)
• Tennessee (2017)
• Utah (2015)
• Vermont (2018)
• Virginia (2016)
• Washington (2016)
• West Virginia (2015)
• Wisconsin (2017)
• Wyoming  (2014)

A few states have made more noteworthy modifications or taken different approaches entirely.

The Colorado, Florida, North Carolina, and New Hampshire Variations

Colorado, Florida, North Carolina, and New Hampshire have each made some noteworthy modifications to the model change.  Colorado made their version place a greater emphasis on communications technologies and protecting client data and communications.  Florida’s version adds an explicit technology CLE requirement and explicitly addresses the role of technical experts in fulfilling the duty.  North Carolina’s version adds the qualifier “technology relevant to the lawyer’s practice.”  And, finally, New Hampshire’s variation adds qualifiers stressing reasonable efforts and evaluation against peers.

The California Approach

California has not formally adopted a parallel rule or comment change.  It has however promulgated a detailed ethics opinion establishing a duty of technology competence for eDiscovery.  In 2015, Formal Opinion No. 2015-193 established that:

Attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery.  Depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery, absent curative assistance . . . .  [emphasis added]

This opinion went beyond just establishing a general duty, however.  It also identified nine core requirements necessary to fulfill this duty of technology competence for eDiscovery:

1. “initially assess e-discovery needs and issues, if any”
2. “implement/cause to implement appropriate ESI preservation procedures”
3. “analyze and understand a client’s ESI systems and storage”
4. “advise the client on available options for collection and preservation of ESI”
5. “identify custodians of potentially relevant ESI”
6. “engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan”
7. “perform data searches”
8. “collect responsive ESI in a manner that preserves the integrity of that ESI”
9. “produce responsive non-privileged ESI in a recognized and appropriate manner”

This list of requirements has been widely discussed as a useful model for all attorneys seeking to fulfill their duty of technology competence for eDiscovery.

Upcoming in this Series

In this short series, we will discuss each of the nine requirements identified by the California order and the fulfillment of the duty of technology competence for eDiscovery.