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Should All States Require Continuing Technology Education (CTE)?

For more than five years we have discussed the need for attorney competence in technology, especially as related to discovery in posts like <a href="https://www.discoveryadvocate.com/2017/06/14/attorneys-professional-duty-of-care-when-representing-clients-in-litigation-or-an-investigation-requires-higher-technological-literacy/">this one</a> and <a href="https://www.discoveryadvocate.com/2013/01/30/what-you-dont-know-about-your-discovery-vendor-can-sanction-you/">this one</a>. As Electronically Stored Information (ESI) continues to grow, it is critical for all attorneys to understand ESI and evolving technology. This need for competence is only enhanced as the volume of ESI increases and new technologies and methods of creating, storing and sharing data emerge.

To refresh your recollection, in 2009, the American Bar Association (ABA) created the <a href="https://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20.html">ABA Commission on Ethics 20/20</a> to review the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation regarding technology advancement and global legal practice developments.

In 2012, the ABA modified <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence.html">Rule 1.1</a> of the Model Rules of Professional Conduct (MRPC) by amending Comment 8. <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1.html">Comment 8</a> states: “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.” To date, 28 states have adopted a Duty of Technology Competence either by adopting ABA Comment 8 to Rule 1.1 or some variation of that comment.

Of note, California adopted a formal opinion on Duty of Technology Competence for lawyers that is nonbinding, but is very useful for guidance on proper professional conduct. This 2015 opinion is one of the most extensive regarding ESI. California Formal Opinion No. <a href="https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/CAL%202015-193%20%5B11-0004%5D%20(06-30-15)%20-%20FINAL.pdf">2015-193</a> states that an attorney lacking the competence necessary for eDiscovery advocacy has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Additionally, the opinion notes that lack of competence in eDiscovery can lead to an ethical violation of the duty of confidentiality.

Further, on Jan. 1, 2017, Florida adopted <a href="http://www.floridasupremecourt.org/decisions/2016/sc16-574.pdf">Rule 6-10.3 (b)</a> and became the first state to mandate Technology CLE for all its attorneys. With Florida being the only state to require technology CLE for their attorneys, it will be very interesting to see if other states follow this standard to ensure that attorneys embrace the duty of technology competence.

Bottom line: As technology continues to affect legal practice, it is recommended that in-house and outside counsel take technology-focused CLEs to further their technology competence. For starters, consider what your local bar association has to offer or get involved with <a href="https://thesedonaconference.org/">The Sedona Conference</a>.

eDiscovery and Technology