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New Technical Competence Standard

Submitted by Michael Santoro on Thu, 07-24-2014
Long title
ABA Model Rule Amendments Adopted on Commission 20/20's Recommendation: A New Standard of Technological Competence for Attorneys?
Santoro, Michael
Author(s)' contact information
Rutgers Business School, USA
Conference title
International Legal Ethics Conference VI
Conference location
City University London
United States
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In August 2009, then ABA president Carolyn B. Lamm created Commission on Ethics 20/20, a three-year study of how globalization and technology are transforming practice of law and how regulation of lawyers should be updated in light of those developments. The Commission's Recommendations were adopted by the ABA Board of Delegates in August 2012 and January 2013. One of the most far-reaching and possibly unintended consequence of the reforms to the Model Code of Professional Responsibility was the extension of the meaning of lawyer competence. Among other relevant changes, Comment 6 to Rule 1.1 was amended to state that: "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." (Emphasis added)
While the presumed narrow intent of this and other related changes to the Model Rules was to require lawyers to maintain technical competence in confidentiality issues arising from storing electronic client data on the cloud or with third party storage providers, the report accompanying the proposed changes adopted by the Board of Delegates was not so clear that the need to be technically competent was limited to confidentiality and storage issues. This paper examines the other potential components of an emerging standard of technical competence--in factual and legal research, time management, docket management and other matters.
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