California Adopts Duty of Technological Competency
This month California did what most states have done, and adopted Comment 8 to the ABA's Model Rule 1.1. Rule 1.1 concerns the duty to provide competent representation to a client, and Comment 8 states that an attorney, "must keep abreast of all changes in law and its practice, including the benefits and risks associated with relevant technology." Comment 1 to Rule 1.1 of California's Rule of Professional Conduct as approved by California Supreme Court on March 22, 2021 uses the exact same language:
The Comment was adopted at the recommendation of the State Bar of California Task Force on Access Through Innovation of Legal Services See its complete report posted here. The report noted the following points about the new duty of technological competency:
A lawyer is not required to become an expert in a type of technology, but may have to engage an expert to assist her.
Technology should be used to make legal representation more efficient and less expensive.
A lawyer should not be punished for not being aware of the benefits of a technological process, only for how he or she uses technology in the representation of a client.
A single mistake in the use of technology will not be grounds to discipline an attorney, unless it was intentional, reckless, or grossly negligent. Repeated mistakes may provide the necessary grounds.