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Attorneys Now Have Duty of Tech Competence in 38 States

Posted Dec 5, 2019

South Carolina’s Supreme Court has amended the state’s Rules of Professional Conduct, bringing the number of states that have adopted a duty of technology competence to 38. In 2012, the American Bar Association approved a change to the Model Rules of Professional Conduct specifying that a lawyer’s duty of competence includes competence in technology. Comment 8 to Model Rule 1.1 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.”

Although California has not adopted a duty of tech competence in its rules of professional conduct, State Bar Formal Opinion No. 2015-193  requires attorneys involved in litigation matters to have competence in e-discovery or associate with consultants or counsel who do have the competence. The opinion cites Model Rule 1.1, Comment 8, stating “[m]aintaining learning and skill consistent with an attorney’s duty of competence includes keeping ‘abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.’” See LawSites 12/2/19, 11/12/19, & state-by-state tracking.