The Duty of Technological Competence
Rule 1.1 of the North Carolina Rules of Professional Conduct requires a lawyer to have the “legal knowledge, skill, thoroughness, and preparation” necessary to represent a client in a particular matter. Comment 8 to Rule 1.1 clarifies that this includes an ethical duty of competence in technology. It is no longer sufficient merely to be proficient and knowledgeable in a substantive practice area. Lawyers must now be able to effectively use and understand the technologies that are relevant to the lawyer’s practice. Failure to be technologically competent can result in ethics complaints, court sanctions, and legal malpractice claims.
Rule 1.1 does not require lawyers to be competent in all forms of technology. Lawyers must only be able to use and understand the technology that is relevant to their practice. Rule 1.1 does not provide specific guidance as to what those areas might be. We have ethics opinions and cases that provide some guidance, but it is often a matter of judgment and will always be a moving target as technology evolves.
Every lawyer must know enough about the technology the lawyer is using to insure that client confidentiality is being protected. That either means that the lawyer needs to review the terms of service and know how the data is protected, or a consultant needs to be retained to verify that confidential information is protected.
For lawyers using generative AI chatbot services, they need to make sure that the chatbot is not giving legal advice to prospective clients. This would constitute the unauthorized practice of law. One of the best ways to make sure this isn’t happening is for the lawyer to experiment with the chatbot by asking questions that call for an answer that would constitute legal advice. For example, if you ask a chatbot what the statute of limitations is for a claim and the chatbot gives an answer, this would be a violation of the ethics rules.
Another area where lawyers need to be technologically competent is in retrieving information and evidence from social media. 2014 FEO 5 requires a lawyer to be competent to retrieve relevant evidence from an opposing party’s social media site. If the lawyer doesn’t know how to collect the evidence from these sites, they need to have an agent who can do this for the lawyer. Failure to collect relevant evidence from social media sites is not only a breach of the ethics rules but might also be evidence of the breach of the standard of care in a legal malpractice claim.
While there is not an ethics opinion in North Carolina that addresses a lawyer’s duty to locate relevant evidence and information from a Google search, many commentators have suggested that this would fall within the duty to competently use technology that is available to a lawyer. Duke law professor Michael Murphy discusses this in his article “The Search for Clarity in Attorney’s Duty to Google.” He suggests codifying this duty as a specific addition to the Rules of Professional Conduct. Whether it is codified or becomes the subject of an ethics opinion, it seems clear that there is some duty for lawyers to use Google searches to retrieve relevant information. This duty might relate to locating clients or opposing parties, discovering relevant evidence in a case or transaction, or evaluating prospective jurors.
While it might not necessarily be the standard of care for lawyers, it is probably a good risk management practice to Google every new client, regardless of the matter. You should probably also Google all opposing parties and relevant witnesses. There is a treasure trove of information and evidence on the internet. You don’t want to miss something that could end up being the nugget of information that determines the outcome of a case or tells you whether you should or shouldn’t take the case.
What about using technology to become more efficient and to save clients’ money? If a lawyer can use technology to complete tasks in less than half the time it would take not using the technology, should the lawyer be required to utilize the technology? Would the State Bar ever consider a lawyer’s fee to be clearly excessive where the lawyer charged the client ten times what it would have cost if the lawyer had used some readily available and inexpensive technology? Think generative AI.
Technology is advancing at an exponential rate. Keeping up with changes in the law and changes in technology can be difficult for lawyers. To practice in today’s environment, lawyers must continually educate themselves to stay in front of the changes. If you are technologically challenged like many lawyers, you might need to rely on a technology consultant. Lawyers Mutual has such a consultant on our staff. As a policyholder with Lawyers Mutual, you are entitled to three free technology or law firm management consultations with Erik Mazzone. Erik can help you navigate the challenges of practicing in the digital age. Whatever you do, though, don’t bury your head in the sand.
