On September 29, 2016, Florida became the 25th state to adopt a technical competency requirement for attorneys practicing in the state. With the ABA and half of all states on board, it’s likely such requirements will eventually be universal. So, what do they ask of attorneys? In this three-part series, we will review the ABA Model Rule Comment and its widespread adoption, the additional requirements in some states, and the core expectations articulated by California.
Comment 8 to ABA Model Rule 1.1
In August 2012, the American Bar Association (ABA) adopted updates to its model rules and their comments, including new Comment 8 to Model Rule of Professional Conduct 1.1. Rule 1.1 establishes a lawyer’s general duty of competence in their work:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
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]
As with most ABA Model Rule changes, this change has been rapidly adopted by states around the country and incorporated into their actual rules of professional conduct for lawyers.
Adoption of Comment 8 by the States
Since its release in August 2012, the updated model competency requirement or some equivalent has been adopted by 25 states, most recently Florida (as previewed by our own Tom O’Connor in the spring). The full list of adopting states includes Arizona, Arkansas, Connecticut, Delaware, Florida, Idaho, Illinois, Iowa, Kansas, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Utah, Virginia, Washington, West Virginia, Wisconsin, Wyoming. So, as of October, attorneys in half the country are expected to achieve and maintain technical competency in some form.
Some Variations on the Requirement
The exact wording and location of the exhortation to technical competency has varied in some states, but so far, only two of the twenty-five adopting states have adopted substantively significant variations from the ABA Model Rule and Comment: Florida and California.
In Florida, two important differences were included:
- First, Florida explicitly expanded its continuing legal education requirements to require an additional three hours of education, every three years, specifically on technology topics.
- Second, Florida is also the only state to explicitly allow for lawyers to satsify their competency requirements through retention of a non-lawyer technical expert, e. an eDiscovery consultant.
- The full opinion from the Florida Supreme Court is available here.
In California, Formal Opinion 2015-193 was issued on June 30, 2015, and explicitly established an expectation of technical competence with regards to litigation and eDiscovery:
Electronic document creation and/or storage, and electronic communications, have become commonplace in modern life, and discovery of ESI is now a frequent part of almost any litigated matter. Attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery. Depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery, absent curative assistance . . . . [emphasis added]
This opinion goes beyond the general exhortation adopted by the ABA and most states to identify nine core expectations for what a technically competent attorney (or an attorney working with technically competent experts) should be able to reliably accomplish:
- “initially assess e-discovery needs and issues, if any;”
- “implement/cause to implement appropriate ESI preservation procedures;”
- “analyze and understand a client’s ESI systems and storage;”
- “advise the client on available options for collection and preservation of ESI;”
- “identify custodians of potentially relevant ESI;”
- “engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;”
- “perform data searches;”
- “collect responsive ESI in a manner that preserves the integrity of that ESI; and”
- “produce responsive non-privileged ESI in a recognized and appropriate manner.”
In the upcoming second part of this series, we will review the first five of these nine core expectations identified by the California Bar.
MATTHEW VERGA, JD
VP, Marketing Content
Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible. A nine-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. As VP, Marketing Content, for Advanced Discovery, he leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.