Some States Qualify Duty of Technology Competency
The ABA's Model Rule 1.1 imposes on a duty of technology competency on attorneys, and has been adopted in most states. Comment 8 to the rule states that, "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." See the Litigation Support Tip of the Night for May 9, 2016.
Some states which have adopted these rules have qualified the language in Comment 8 requiring knowledge of legal technology.
The Supreme Court of the State of New Hampshire states in its court rules with respect to Comment 8 that:
"This broad requirement may be read to assume more time and resources than will typically be available to many lawyers. Realistically, a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers similarly situated are using."
Supreme Court of New Hampshire Order, dated Nov. 10, 2015 at p. 51, available at: https://www.courts.state.nh.us/supreme/orders/11-10-15-Order.pdf
So, a lawyer is bound to both have knowledge of the electronic discovery methods he or she uses, or those used by attorneys practicing in the same field.
In New York, Comment 8 to Rule 1.1 states that:
"To maintain the requisite knowledge and skill, a lawyer should (i) keep abreast of changes in substantive and procedural law relevant to the lawyer’s practice, (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information, and (iii) engage in continuing study and education and comply with all applicable continuing legal education requirements under 22 N.Y.C.R.R.Part 1500."
New York Rules of Professional Conduct, Effective April 1, 2009, As amended through June 1, 2018, at p. 13, available at: https://nysba.org/NYSBA/Practice%20Resources/Professional%20Standards%20for%20Attorneys/Professional%20Standards%20for%20Attorneys/Rules%20of%20Professional%20Conduct%20as%20amended%20060118.pdf
There is a special emphasis placed on keeping client data secure.