Legal Tech Blogger Bob Ambrogi on the Duty of Technological Competence
Robert Ambrogi, a Boston-based attorney, journalist, and popular legal-tech blogger, visited BYU Law School to discuss why changes in technology matter to students’ futures. One of the biggest changes the legal profession is the evolving requirements regarding attorneys’ technological competence. To set the stage for his talk, Ambrogi reminded students that it was only a few decades ago that the typewriter was still relevant in the legal profession. In general, he said, lawyers have been slow to adopt technology. Furthermore, “Technological competence is not something that is common in the legal profession.”
In 2012, the American Bar Association approved an amendment to its Model Rules of Professional Conduct that imposes on lawyers a duty to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology” (emphasis added). Ambrogi emphasized that this duty requires attorneys to become competent in and regularly familiarize themselves with technological advances if they are to provide the best service for their clients and avoid legal consequences.
But what does technological competence look like? Ambrogi addressed this question by reviewing the limited number of ethics opinions that have addressed the issue. In 2015, a California ethics court discussed some of the emerging problems with e-discovery. “Not every litigated case involves e-discovery. Yet, in today’s technological world, almost every litigation matter potentially does.” E-discovery is an esoteric area of the law; defining “competence” in the context of e-discovery varies from case to case. Thus, attorneys should assess their own e-discovery skills and resources and determine whether they require additional training or assistance.
Earlier this year, the ABA issued an ethics opinion interpreting what the duty of competence means with respect to protecting confidential information. Though the ABA did not provide a bright-line rule, it encouraged attorneys to consider whether online communications ought to be encrypted. Lawyers are responsible for understanding how client information is transmitted and where it is stored online. And they must take reasonable security measures to protect confidential information.
Why should students care about what ethics opinions are saying about technology and the law? As Ambrogi explained, there are real legal consequences for being technologically incompetent, from sanctions to adverse inference instructions, both of which could hurt the attorney and the client. Legal consequences aside, “Being competent in legal technologies . . . is critical to [students’] futures as lawyers.” Clients are demanding lawyers who are technologically savvy. Lawyers who remain in tune with technology are more valuable and therefore more employable.
So how does one become and stay competent? Law schools like BYU are beginning to offer more courses in legal technology. State bars are encouraging lawyers to take technology-related CLE courses. Students and practicing lawyers can learn basic coding to familiarize themselves with the inner-workings of technology. At the end of the day, Ambrogi stressed that becoming competent comes down to “doing it yourself.” In the coming years, “Artificial intelligence and legal tech are likely to permeate every area of legal practice.” Ambrogi invited students to take the time now to familiarize themselves with technology so they can meet the demands of the future.