Unpacking the RPC 1.1 Duty of Tech Competence
You probably know that the Rules of Professional Conduct impose an ethical duty of competence in technology.
What you might not know are the specifics of that duty – or how to meet those obligations and stay compliant with the rule.
Do you simply have to know how to upgrade your version of Office 365? Or do you have to master the intricacies of cloud computing?
If you’re unsure, don’t worry. You’re not alone. Rule 1.1 Comment 8 is being interpreted, shaped and molded right before our eyes.
“It is easy to make apocalyptic jokes about how AI will replace lawyers,” according to the ABA Journal. “The much more rapidly approaching threat to job security is that lawyers who aren’t technically savvy will be replaced by those who are.”
See “Technology Competence, It’s Required” from the ABA Techshow 2023.
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NC Rule of Professional Conduct 1.1: Competence
A lawyer shall not handle a legal matter that the lawyer knows or should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Comment [1] Legal Knowledge and Skill. In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.
Comment [2]. A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience….
Comment [8] Maintaining Competence. 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 the technology relevant to the lawyer’s practice, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.
SOURCES: https://www.ncbar.gov/for-lawyers/ethics/rules-of-professional-conduct/rule-11-competence/ and How can lawyers meet their ethical obligation to be competent in technology? (abajournal.com)
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