In 2012, the American Bar Association recognized a sweeping shift in the practice of law by amending its Model Rules of Professional Conduct to impose a duty on lawyers to stay abreast of the benefits and risks associated with the use of technology in their practices. On February 26, 2019, Texas became the 36th State to adopt and mandate this Duty of Technology Competence by amending Comment 8 to Rule 1.01 of the Texas Professional Rules of Disciplinary Conduct:
- Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology.To maintain the requisite knowledge and skill of a competent practitioner, a lawyer should engage in continuing study and education….
The question is, what does a lawyer really need to know about technology? Are they required to use it? And, would a lawyer be considered “proficient and competent” by doing some light reading while waiting at the dentist office or does it require more?
The language submitted by the State Bar of Texas Computer and Technology Section suggests that “the practice of law is now inextricably intertwined with technology for the delivery of services, the docketing of legal processes, communications, and the storage and transfer of client information, including sensitive and confidential private information and other protected data.”
With new terms and acronyms being coined almost daily by the technology industry, such as Hyper Converged Cloud Infrastructure, Edge Computing, IOT, VPC, AI, and data mining, how much of a technologist must a lawyer become? And, as these new products and services emerge, could a lawyer or firm be held in violation if they are not offering more affordable and billing efficient services and protections to their clients?
Undoubtedly, a lawyers duty of confidentiality and the duty to protect confidential client information has become increasingly reliant upon technology based tools such as data and record storage, e-communications, e-filing with Courts, and e-discovery solutions. Perhaps the Covid-19 Pandemic will force additional pressures on law firms and lawyers for remote and virtual solutions in order to interact with their clients and courts in real-time.
The question remains as to how this duty imposed on lawyers will be enforced, what constitutes a violation, and how damages might be calculated for violators. It will only be a matter of time before a body of case law is developed to answer these questions. In the meantime, statutes such as the Health Insurance Portability and Accountability Act, Sarbanes-Oxley, PCI, or other consumer privacy and regulatory laws may be looked upon by Courts for a framework for their legal conclusions.
The safest and possibly most prudent response by the legal community will be to seek qualified assistance. After all, a law firm should not be masquerading around as a technology firm. Yet, a great majority of todays law practitioners devote unnecessary time and resources to their “tech solutions” which impact not only productivity and overhead costs, but also the client experience.
In the 20 years that have passed since taking my Oath to support the Constitution, now, more than ever, is the time to partner with capable technology companies who can help the modern lawyer deliver good on their sworn promise. If you work for a law firm’s technology department, your importance has just become even greater. And to the law firm’s who outsource their technology solutions to third parties, are you confident you are meeting your new duty of competence?
Since becoming the General Counsel of Vorbi Inc, I have been able to watch our team build competent, private, reliable, compliant, and cost effective solutions for its clients. If you are concerned or even curious, I would encourage anyone to look at Vorbi’s cost effective solutions for their information technology needs.