Recently, the American Bar Association released its annual technology survey, a comprehensive report that explores how attorneys are using technology. It revealed some troubling trends.
The finding of most concern is that nearly half of the respondents indicated their belief that they were not ethically required to stay apprised of legal technology developments, or that they were unclear regarding their ethical duties. In fact, the ABA formally approved a change to Rule 1.1 of the Model Rules of Professional Conduct in 2012 that clarified that a lawyer’s ethical duty of competence requires knowledge of technology related to their practice. Since that time, approximately half of the states have adopted the revised rule, which provides:
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.”
Indeed, an attorney’s lack of familiarity with relevant technology may subject him/her to sanctions and ethical violations, even in a state that has not adopted the revised ABA Rule. For example, California’s Professional Responsibility Committee opined that an attorney’s e-discovery ignorance, which resulted in the deletion of relevant data and the production of privileged information, may have amounted to a violation of the attorney’s ethical duty of competence and confidentiality.
Additionally, while most of the survey respondents indicated they felt it was necessary to be trained in their firm’s technology, nearly 20% believed such training was “not very important” or “not at all important.” Solo practitioners and respondents from firms of 2-9 lawyers were the most likely to report these beliefs. In a related finding, far fewer attorneys at smaller firms reported the availability of “one or more types of tech training” at their firm than their counterparts at larger firms.
The survey’s findings indicate that many lawyers continue to underestimate the importance of possessing a working familiarity with technology related to their practice. As Mark Rosch, who authored the summary of the training section of the ABA survey, put it: “Lawyers can no longer claim ignorance of technology as a defense for not knowing or not doing something the court or the bar believe they should have known or done.” It would be wise for attorneys from firms of all sizes to heed this advice.
The complete survey results can be purchased from the ABA.