As a profession, lawyers are largely considered to be slow adopters of technology. Lawyers are trained to be cautious and conscientious and to consider risks of the way they approach an issue. Sometimes this leads to lawyers being slower to incorporate new developments in technology into their own practices than their peers in other fields of work.

However, there can be risk for lawyers who do not take steps to keep abreast of developments in technology that could impact their practices. For instance, Comment 8 to ABA Model Rule of Professional Conduct 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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” Many states have adopted or are considering equivalent language.

The last few years have seen an increase in lawyers working remotely, which led to its own technological challenges. The use of cloud computing and e-discovery has also led to new possibilities for both lawyers and clients—and the need for lawyers to understand the requirements and risks of e-discovery (even when relying on vendors or others in their practice to help guide them). And recent developments in AI and other automated shortcuts for legal services have created a new host of issues that lawyers may not be able to ignore in their own practices.

Although technological advancements are often generally beneficial to the legal community as a whole, lawyers can face risks if they do not update their practices to stay informed about developments in technology.

The Ethical Requirements

Lawyers have a general duty of competence. Rule 1.1 of the ABA Model Rules of Professional Conduct provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

This Rule often goes hand-in-hand with the duty to comply with the standard of care commonly employed by other lawyers in the community for similar matters. Notably, however, the standard of care is a living, breathing concept that evolves over time. For example, it may be expected now that lawyers are capable of using e-mail or conducting hearings remotely (perhaps with support or assistance from others), even where that wasn’t always the case historically.

As the law and technology changes, what a lawyer is expected to know about those subjects changes as well. Lawyers often attend continuing legal education courses to help them stay abreast of developments in the law and help them provide stellar service to clients. Similar efforts may be helpful for lawyers to learn about emerging issues in technology, such as the use of AI or the need to maintain confidentiality in the digital age.

Lawyers who do not undertake the effort to learn about developments—both in law and technology—may find themselves behind the curve.

Technological Competence Also Can Help Marketing Efforts

Lawyers who take steps to improve their technological competence may see other benefits to their practice, including the ability to market to clients. For example, corporate clients may have security guidelines for outside counsel to follow. A lawyer who understands and can speak competently about security issues may be more likely to land that representation.

As another example, lawyers who are experienced in digital technology may be able to enhance their presentations at hearings to make them better received by courts. But most importantly, maintaining a reasonable degree of technological competence can help ensure that lawyers are meeting their ethical obligations to clients.

Lawyers May Rely on Others

Although lawyers are often at the forefront of many cutting-edge legal and commercial issues, it sometimes takes years for practitioners to catch up on technology advancements. This can create risks for lawyers, as reflected by Comment 8 to Model Rule 1.1.

It is routine for supervising lawyers to rely on junior lawyers or even staff to advise the supervising lawyers on recommendations for handling new technology or other developments. Sometimes, in conjunction with the duty to supervise, it can be sufficient for a lawyer to work with others who are more competent in or knowledgeable about technological advances. Nonetheless, the supervising lawyer may still face risk—from a bar grievance or from a court hearing a motion to compel or for sanctions—if the lawyer’s team fails to meet expectations.

The risks of not being competent in evolving technology can be severe. As one Delaware court observed, “[p]rofessed technological incompetence is not an excuse for discovery misconduct.” Other risks of technological incompetence include the risk of making an error in the representation, facing sanctions for discovery misconduct, or the inadvertent disclosure of confidential or privileged information.

The need for technological competence can range from more basic issues, such as taking care not to send an email to the wrong individual or to reply-all mistakenly, to more advanced issues, such as ensuring that privileged documents are not contained in a large data production or that lawyers on a team are not using AI to generate fake legal cites in support of a motion.

Further, the legal news is rife with stories about cloud computing, data breaches, and hacking. Bars sometimes consider this an ethical issue, because lawyers have obligations to safeguard confidences and secrets, and sloppy cyber policies can expose clients’ secrets. If a client sues a lawyer after a cyberbreach and the exposure of secrets, the lawyer would be well served to point to all the safeguards the lawyer had in place, such as the use of passwords or two-step verification protocols, showing the reasonableness of the lawyer’s conduct. However, an argument that the lawyer did not really understand the technology and thus did not appreciate or understand the risks is less likely to be successful.

By learning about developments in technology, lawyers can help ensure that they comply with the evolving duty of competence.