The American Bar Association (ABA) Model Rules of Professional Conduct serve as ethical models for the legal industry. Rule 1.1 outlines an attorney’s ethical duty to provide “competent representation to a client” and defines competence in the areas of legal knowledge and skill, thoroughness and preparation, and retaining or contracting with lawyers. In 2012, the ABA amended Comment 8 of the rule to address technology competency and an attorney’s duty to maintain competence. But what does technology competence mean and how is it obtained and maintained? The Successful Firm Project explored these questions and more in The Duty of Technology Competence Q&A Today Huddle with panelists Bonnie Beuth, Tony Gerdes, and Michael Quartararo.
Advances in legal technology are continuously improving the business of law, allowing firms to operate more efficiently and serve clients in new ways. But as new technology emerges, so to do questions regarding an attorney’s duty of technology competence and ethical responsibilities. In 2012, The American Bar Association (ABA) attempted to address these questions by revising Rule 1.1 with the amendment of Comment 8.
“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.”
The ABA’s guidance on the issue of technology competence is limited to this brief statement, leaving it up to the 40 states that have adopted the rule to further interpret it for themselves. There is not an industrywide standard for legal technology competence, nor is there guidance on how to prioritize and engage in training.
“While that’s a great thing to say, what does it mean and does it have any teeth?,” asks Michael Quartararo, President of the Association of Certified E-Discovery Specialists (ACEDS). “What happens if someone is not technologically competent? Do they get sanctioned, do they get fired, or is the client simply unhappy?”
The definition of technology competence is as varied as the technology options themselves. A firm’s size and practice area play a large role in how firms view competency, and being technologically competent means different things depending on the role within a firm. For instance, while it is important for a firm’s equity partner to understand what technology is available, it’s the duty of the associate to properly utilize the technology.
“Those attorneys who distribute the work, whether they are equity partners or not, they have to understand what they are asking their firm to do,” says Bonnie Beuth, Information Systems Trainer at FordHarrison. Additionally, Beuth says it’s important for equity partners to prioritize the technology competency training of firm associates. “If you really are creating a high standard for those groups to be trained, you are effectively leaning toward the future and how [21st century] technology and technology competence will be viewed.”
To begin the path to technology competence, the panelists of the Successful Firm Project Q&A Today Huddle on the Duty of Technology Competence recommended the following:
Begin with your own definition. While the ABA provides a broad overview of technology competence, it fails to give firms specific steps and regulations. Therefore, firms must define technology competence for themselves by exploring elements such as practice needs, firmwide roles, workflows, and current technology already in place. Additionally, firms should survey clients to determine how best to serve them and determine the role technology will play in meeting client needs. Once a competency definition is in place, firms must be willing and ready to reexamine and adapt it as needed.
“Any standard that is defined has to be fluid. It literally does change in a day. When everyone went home in the pandemic, we rolled out Zoom and Microsoft Teams; we changed the competency level and the competency definition,” says Beuth.
Develop a strategy to maintain competence. While it makes sense for smaller firms to designate an internal group to determine how best to maintain a level of competence, larger firms may benefit from working with an outside organization in order to maintain levels of competence among a larger group of attorneys spread across multiple locations. The Legal Technology Core Competencies Certification Coalition (LTC4) is one organization that is working to set a global standard for legal technology proficiency. Beuth, a founding member of LTC4, says the organization works to develop relevant learning plans that are application-agnostic, workflow-based, and flexible to accommodate a firm’s internal policies.
Consider your training methods. Multi-hour technology training can be expensive and inefficient. Quartararo notes that 21st law firms are often turning to a just-in-time training model to save time and money.
“We used to do long training programs when people were hired, but I see a lot of firms now introducing general concepts. And then, when the time comes for you to actually get a case assignment… that is when the firm shows you how to use [the platform].
As firms onboard new attorneys and staff, it’s important to prioritize the skills new hires need right away while saving other training for the future. “Telling someone something isn’t teaching it,” says Tony Gerdes, Director of Knowledge and Innovation at Offit Kurman. “Trying to figure out and prioritize ‘what do people need to know right away’ and ‘what do they need to learn in the first month or so’ is going to at least give you a framework for what you think is very important – these are all core competencies, this is why we are training in this and prioritizing these things.”
As firms define technology competence for themselves, the ABA may expand the definition to provide a more useful industry wide standard and regulation. Until then, law schools could play a large role in transforming the next generation of attorneys from ‘tech-savvy’ to ‘technically and ethically responsible.’
“No one goes to law school to learn about technology, but the fact of the matter is technology is super integrated into everything we do every day,” Quartararo says.
About the Subject Matter Coaches
Information System Trainer, FordHarrison
In addition to her role as the Information System Trainer for FordHarrison, Bonnie is one of the founding members of Legal Technology Core Competencies Certification Coalition (LTC4). She contributes technical expertise combined with over 20 years of business knowledge to her role as Chair of LTC4’s board of directors.
Director of Knowledge and Innovation, Offit Kurman
Tony Gerdes works as the Director of Knowledge and Innovation at Offit Kurman, P.A. In this role, he aims to improve the work lives of his colleagues. He also serves as a Contributing Member of LTC4™ (Legal Technology Core Competencies Certification Coalition) where he has been able to support trainers around the world.
President of the Association of Certified E-Discovery Specialists (ACEDS)
Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), the world’s leading organization for training and certification in e-discovery. For more than 10 years, ACEDS has trained lawyers, paralegals and other legal support professionals at law firms, corporate legal departments, the government, and in academia.