The ethical duty of technology competence officially arrived in nation’s capital April 7, when the District of Columbia Court of Appeals formally approved revisions to its rules of professional conduct that identify technology as a resource that should be deployed on behalf of the client in appropriate circumstances.
The D.C. Rules of Professional Conduct’s definition of competence now provides that lawyers must inquire whether “procedures, and technology meeting the standards of competent practitioners” will advance the client’s interests. While the D.C. court’s decision to define technology competence by referring to the “standards of competent practitioners” might be somewhat circular, it can be said with absolute certainty that the District of Columbia is now the forty-first jurisdiction to explicitly add technology considerations to its professional ethics code.
While the D.C. court’s decision to define technology competence by referring to the ‘standards of competent practitioners’ might be somewhat circular, it can be said with absolute certainty that the District of Columbia is now the forty-first jurisdiction to explicitly add technology considerations to its professional ethics code.
The D.C. court’s action came several days after the New Jersey Supreme Court considered, but rejected, a proposal to list technology competence as a competency New Jersey lawyers must bring to bear on client matters.
Tech Competence in the District of Columbia
In the District of Columbia, the rules change is reflected in revisions to Comment 5 (Thoroughness and Preparation) to Rule 1.1 (Competence) of the D.C. Rules of Professional Conduct. The comment, as revised, reads as follows:
Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods, procedures, and technology meeting the standards of competent practitioners. It also includes adequate preparation and continuing attention to the needs of the representation to assure that there is no neglect of such needs. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lessor consequences.
Along with “technology,” the addition of the new term “procedures” is interesting as well; no explanation was given by the rules drafters.
The ethical duty of technology competence was initially recognized by the American Bar Association in 2012, when it added Comment 8 to Rule 1.1 (Competence) the ABA Model Rule of Professional Conduct. Comment 8 explains that a competent lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
Bar regulators in 40 states have followed the ABA’s lead, adding similar references to technology to their lawyer ethics codes.
It is perhaps a misnomer to refer to the actions of these bar regulators as “creating” or “adopting” an ethical duty of technology competence. “Highlighting” or “emphasizing” or “recognizing” the role that technology plays in modern law practice might be a better way to frame this issue. After all, lawyers have always had an ethical duty to bring to bear whatever resources and competencies are reasonably (and lawfully) necessary to advance their clients’ interests. An understanding of – and facility with – technology is merely one of many professional competencies.
That’s certainly the case in the District of Columbia, where the D.C. Bar regulators have recognized a duty of technology competence on two occasions, well before the District of Columbia Court of Appeals explicitly added the term “technology” to the local professional ethics code.
In Ethics Opinion 371 Social Media II: Use of Social Media in Providing Legal Services (Nov. 2016), D.C. Bar officials identified an ethical duty for lawyers to understand how social media might impact their representation of clients. Although the D.C. professional conduct rules lacked an explicit mention of technology, D.C. Bar officials advised:
Because of society’s embrace of technology, a lawyer’s ignorance or disregard of it, including social media, presents a risk of ethical misconduct.
They also observed that Rule 1.3(b)(1) which obliges lawyers to “seek the lawful objectives of a client through reasonably available means,” may also require the use of social media in an appropriate situation.
Last year, D.C. Bar officials again advised in Ethics Opinion 388 Attorneys’ Use of Generative Artificial Intelligence in Client Matters (April 2024) that technology competence is one of the competencies that should possess, including the technology du jour, generative artificial intelligence. They wrote:
Competence includes understanding enough about any technology the lawyer uses in legal practice to be reasonably confident that the technology will advance the client’s interests in the representation. Separately, the lawyer should also be reasonably confident that use of and reliance on the technology will not be inconsistent with any of the lawyer’s other obligations under the Rules of Professional Conduct.
To the extent that there was any lingering doubt about the need for D.C. lawyers to be technologically competent, the D.C. Court of Appeals insertion of technology-aware language into its professional ethics code should extinguish contrary beliefs.
The District of Columbia Court of Appeals functions similarly to state supreme courts. An appellate court, it reviews the decisions of trial courts in the District of Columbia, as well as the actions of District of Columbia government agencies. The court created the District of Columbia Bar Association in 1972 to assist in the regulation of attorneys in the District of Columbia, and it has authority to create and revise the rules of professional conduct for D.C. Bar members.
New Jersey Declines Tech Ethics Tweaks
In New Jersey, the state supreme court apparently believed that technology competence is already among a New Jersey lawyer’s ethically mandated competencies. In an April 2 notice to New Jersey attorneys, court administrators announced that the New Jersey Supreme Court had:
- approved a continuing legal education requirement in technology-related subjects for all New Jersey licensed attorneys; and
- declined to add a comment to New Jersey Rule of Professional Conduct 1.1 regarding an attorney’s responsibility, as part of competence, to keep abreast of the benefits and risks associated with relevant technology.
Continuing legal education requirements on technology topics are now required in several other states, including New York, Florida, North Carolina, and Delaware (for new lawyers only).
Earlier this year, the New Jersey Supreme Court invited public comment on whether language similar to the ABA’s Comment 8 should be added to the state’s professional ethics code. It appears that the court believes that this change is unnecessary, though no explanation was given in the court’s April 2 notice.
Evidence that state supreme court officials believe technology competence is already ethically mandated might be found, however, in a 2024 report from the New Jersey Supreme Court’s Committee on Artificial Intelligence and the Courts entitled Legal Practice: Preliminary Guidelines on the Use of Artificial Intelligence by New Jersey Lawyers. The report’s authors list several ethical duties implicated by the use of artificial intelligence in legal practice: communication, candor, confidentiality, prevention of misconduct, and oversight of lawyers and non-lawyers used to deliver legal services.
Missing from the report is a mention of the ethical duty of competence. Instead, the authors observe: “The core ethical responsibilities of lawyers, as outlined in the Rules of Professional Conduct (RPCs) are unchanged by the integration of AI in legal practice, as was true with the introduction of computers and the internet.”
This language suggests that, in New Jersey, the ethical duty of technology competence has been there all along.
