The Ethical Obligation of Technological Competence
Competence is essential to a successful practice. Competence requires that professionals develop the skill set and knowledge base to meet their clients’ needs and keep up with changes in their practice area. In the modern age, remaining competent also entails that professionals understand and incorporate new technology into their practice. Utilizing new technologies helps to expand professional capabilities, promotes efficiency, and enables professionals to remain competitive. But keeping up to date with technology is not simply good advice for professionals who want to get ahead – it may also be an ethical obligation.
Recently, Florida became the 25th state to adopt an amendment that requires attorneys to maintain technological competence. ABA Model Rule 1.1 now provides that the duty of competence includes staying up-to-date with the benefits and risks associated with relevant technology. The specific inclusion of technological advances was intended as a notice to practitioners that ignoring developments in areas such as e-discovery or cybersecurity could be a breach of ethical duties. Under Florida’s amendment, lawyers are not only expected to stay abreast with technology, but must also complete CLE requirements in approved technology programs to help ensure compliance with the rule.
While professionals are not required to be experts in all aspects of technology, there are certain fundamentals that lawyers are expected to know. For instance, attorneys engaged in e-discovery must have the requisite knowledge of the systems used for production to ensure preservation of data and avoid production of privileged information. Similarly, attorneys filing documents electronically must have a system in place to remove any confidential or personal information that must be protected from public view. Attorneys who fail to educate themselves on these matters risk exposing themselves to ethics review as well as professional liability claims from their clients.