Page 38 - December 2018 | Cleveland Metropolitan Bar Journal

BarJournal COLuMN

LegAL reSeArCH & WrITIng
JULY/AUGUST 2015

HAve YOU MAde THe TeCHnOLOgY

PArAdIgM SHIfT In YOUr

PrACTICe Of LAW?

Joe Custer

ertainly lawyers use technology competence to apply in any given effectively may constitute a violation of
technology in their legal state, that state’s high court (or rule-setting ethical duties. Knowingly wasting client
research. What are the body) must adopt it. Since the promulgation time and money due to lack of computer
ethics that govern the use of of the ABA approved amendment, 28 states skill is unacceptable.
Ctechnology in law practice? have adopted the revised comment to Many tech tools are available to improve
In practice today, lawyers should be aware Rule 1.1 regarding the duty of technology your efficiency and ensure that you are not
that to be held competent they must be competence. Ohio became one of 28 when over-billing your clients for your written
technologically competent, in addition to it approved the revised comment to Rule 1.1 work. Lawyers should expect that training in
exhibiting the substantive knowledge of on February 14, 2015 with its effective date MS Word and other office software tools will
a certain area of law and the experience being April 1, 2015. become commonplace as more states adopt
and ability to adequately represent a client Competence does not mean perfection or Model Rule 1.1, Comment 8 and update their
regarding a specific matter. Technology high level expertise. It does not mean that CLE requirements to match.
competence is a broad concept, which entails lawyers must now become early adopters, In February 2017, the ABA adopted
more than just searching electronic databases, anxious to discover, purchase, and learn the Model Rule for Minimum Continuing
understanding e-discovery, or understanding every possible new piece of legal tech. It does Legal Education (MCLE) and Comments
the best practices of data security. It’s about require a baseline understanding of, and to replace the version first adopted in
everything that lawyers do and every tool that reasonable proficiency in, the technology at 1988. This revision responded to new
lawyers use to serve their clients. In 2012, a hand. Of course, specific proficiencies and Model Rule 1.1, Comment 8. One way to
sea change happened in the legal profession competences will vary between lawyers and get started right away is to begin following
when the American Bar Association formally practice areas. the “Legal Office Guru” for tips on making
approved a change to the Model Rules of What is the practical aspect of the new MS Word and other office software tools
Professional Conduct, making it clear that duty to understand technology? If a lawyer is work for you. Legal Office Guru https://
lawyers have a duty to be competent not only in incompetent in technology and asked to take legalofficeguru.com/.
the law and its practice, but also in technology. a case, the attorney has one of three choices: In conclusion, now lawyers must grapple
Competency directly relates to performing 1, sufficiently learn the necessary information with the idea that failure to improve how we
duties as an attorney (Model Rule 1.1) and before undertaking the matter; 2, associate use MS Word and provide our written work
the ABA’s House of Delegates voted to amend or consult with technical consultants could be unethical and wasteful. It will take
Comment 8 to Model Rule 1.1 in 2012 to and competent counsel; or 3, decline the a paradigm shift perhaps for some lawyers
read as follows: representation. Lawyers may seek help in to begin seeing how using technology to
meeting their duty of competence. However, improve efficiency and provide better client
(8) Maintaining competence. To maintain they may not delegate all technological service is both the ethical thing to do and a
the requisite knowledge and skill, a duties to others in their firm. That would good business decision. Hopefully you have
lawyer should keep abreast of changes be an abdication of their responsibility to already made the change?
in the law and its practice, including the understand technology.
benefits and risks associated with relevant Now that there is a duty to develop and
technology, engage in continuing study maintain technology competence, failure Joseph A. Custer, Associate Professor of Law
and education and comply with all to make a plan to keep up with technology & Director, Judge Ben C. Green Law Library.
continuing legal education requirements invites clients to bring malpractice suits Professor Custer teaches Advanced Legal Research
to which the lawyer is subject. and file ethics claims against their lawyers. and Electronic Discovery at the Case Western
The lawyer should start with understanding Reserve University School of Law. He has been
Each state is free to adopt, reject, ignore, what technological tools they have at a CMBA member since 2017. He can be reached
or modify the Model Rules. For the duty of their workplace. Inability to use MS Word at (216) 368-2083 or jac311@case.edu.
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