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Do You Have the Level of Technological Competence Required by the Rules of Professional Conduct?

Posted By Colleen Glatfelter, Monday, February 15, 2016

 By Dan Johnson, Professionalism Committee Member 

Do you have the level of technological competence required by the Rules of Professional Conduct?

Even for attorneys who started practice before the dawn of the Internet, the competent practice of law now requires some knowledge of electronic technology.  It is doubtful that today’s clients would tolerate an attorney without e-mail or a cell phone.  It is doubtful that legal research can be competently done in today’s law practice without the use of the assistance of either Lexis or Westlaw.

Is there an ethical duty to have some level of technological competence?  The answer to that question appears to be yes.

Rule 1.1 of the Rules of Professional Conduct provides, in part:  “A lawyer shall not handle a legal matter that the lawyer knows or should know he or she is not competent to handle … “  Comment 8 to Rule 1.1 was amended in 2014 to provide, in part:  “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 the technology relevant to the lawyer’s practice …”  Thus, some degree of knowledge of law office technology is now required by this Rule for attorney competence.

In addition, the State Bar decided in 2014 FEO 5 that, for litigation purposes, the “technology relevant to the lawyer’s practice” includes social media.  That FEO states:  “Counsel has a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.” (citing a New Hampshire Bar Association opinion).  Accordingly, an attorney with litigation as part of his or her practice must have basic knowledge of social networking media such as Facebook, Twitter and Instagram.

Under the Rules and at least one Ethics opinion, a competent attorney today has an ethical duty to acquire basic knowledge of  the technology relevant to the lawyer’s practice and, at least for litigators,  to acquire basic knowledge about electronic networking by social media.

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.

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