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A lawyer’s duty of technological competence in the land of technology

what does duty of technological competence mean in California?

It’s a little bit shocking that California – home to Silicon Valley, countless technology companies, and critical technological innovations – was the 39th state to enact a rule of technological competence for lawyers. In fact, that rule didn’t become effective until March 2021.

Meanwhile, legal technology has evolved and advanced at the speed of light over the past two decades. Today, a lawyer can file court documents, have them served, and monitor case progress online. Artificial intelligence assists with e-discovery, legal research, and document management.

Additionally, lawyers are expected to have some level of competence in those processes.

What does this all mean for your day-to-day practice? Let’s break it down.

What the rules say about technological competence

In order to understand a California lawyer’s duty of technological competence, we must approach the issue like any other legal problem – we’ll start with the rules.

The rule that we’re concerned with here is found in Comment 1 to California Rule of Professional Conduct 1.1 dealing with “Competence.”

Rule 1.1 is stated in the negative. It tells lawyers they must not “intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” (Rule 1.1(a).)

It goes on to explain that “competence” in this context applies to “the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service.” (Rule 1.1(b).)

Comment 1 then adds that competence includes “the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.”

Let’s break that down into more practical terms.


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Practical implications for California lawyers

Interestingly, California’s formal enactment of Rule 1.1, Comment 1 became effective about a year after it was desperately needed.

In the year 2020, of course, the United States was in the midst of the COVID-19 pandemic and most of California was in lockdown. That meant that even the old-guard lawyers who were still doing things like handwriting briefs and filing documents in-person were forced to practice via remote technologies.

Never was technological incompetence more dangerous to the legal profession.

Not surprisingly, some of the only true, post-enactment analysis of Rule 1.1, Comment 1 addressed this issue head-on. In a draft opinion, the California State Bar Standing Committee on Professional Responsibility and Conduct considered “a California lawyer’s ethical duties when working remotely in response to the COVID-19 pandemic or another disaster situation.”

Among other things, the opinion suggested that lawyers should have the technological competence to turn off the listening functions of smart speakers like Alexa or Siri while discussing client matters in the home.

How many of your firm’s Luddites would even understand that suggestion?

To date, the most practical interpretation of California’s technological competency rule has come from the press and industry watchers. They’ve suggested that California attorneys can demonstrate base-level technological competence by understanding things like:

  • Video conferencing
  • Secure file transfers
  • Research, brief-writing, time-tracking, and calendaring software
  • Email
  • Data risks

Of course, with every passing day, this list continues to grow.


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Why your firm should take tech competence to the next level

Admittedly, California attorneys still need and deserve much guidance about the level of technological competence required by Rule 1.1, Comment 1. That may or may not come quickly.

In the meantime, however, why not embrace a technical revolution that will undoubtedly continue to morph the legal landscape by taking your firm’s tech competence to the next level? Here are just a few of the numerous benefits of embracing technology:

Cost-efficiency

For the most part, technology aims to make workflow more efficient. This has certainly been the case with legal technologies and that trend is likely to continue.

For example, who can deny that online legal research is faster, more efficient, and more effective than toiling away in dusty law libraries?

Early adoption has its benefits

There are undeniable benefits to having your firm be an early adopter of legal technology. Among them are:

  • Long-term technological advantages over competitors
  • The ability to shape technology as it grows
  • Creating the perception that you’re a cutting-edge firm to attract clients
  • Competitive advantages as you are the first to benefit from new tools and efficiencies
  • Easier recruiting for top new talent

Hiring and retention

The lawyers just coming out of law school were brought up in a purely technological world. They’re used to having automated processes and may have a general disregard for traditional methods of practice that make things more difficult for them.

It’s not surprising, then, that being tech-savvy is a great tool for hiring and retention.

Grow geographically with little investment

In the past, it was highly inefficient for small law firms in large states like California to practice outside of a one-or-two county radius.

Travel expenses were high. It was difficult to find process servers in remote locations. It was nearly impossible to research local court rules without being in the county law library.

Today, however, things like finding remote process servers is as easy as logging into your computer.

Local rules are all online. Depositions can be conducted virtually. In other words, there is an entire world of clients and cases available to you that may have been inaccessible in the past, and your geographically distant issues are just as quick as your local ones.

Final thoughts

In California, things tend to evolve quickly.

Even though the Golden State was late to formally adopt a technological competency rule, you can bet that technological advances in the legal profession will continue to propagate. Why not ride the wave of technology and become a more competent practitioner along the way?

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