When the American Bar Association amended its Model Rules of Professional Conduct in 2012 to include a provision that lawyers should keep themselves abreast of the latest technology, it was only a matter of time before that change would be reflected in state rules across the country.
The ABA added a new comment on Rule 1.1, which governs a lawyer’s duty to provide competent representation to a client. Comment 8 states that in order 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” and engage in continuing study and education.
Three more states adopted the comment in March, making 32 that have now adopted some form of it. South Carolina may soon join the majority. The state bar has a proposal in final drafting stages that the House of Delegates will consider in May.
In anticipation of such a step, the state bar has revived its Technology Committee, the original version of which was created in the 1990s and sunsetted in the early 2000s. Mike Polk, an attorney with Belser & Belser in Columbia and the chair of the committee, said that the committee’s first mission is to help attorneys ensure that they are satisfying their new duty of technological competence.
“That phrase has been the source of a lot discussion among attorneys throughout the nation, I think, and arguably attorneys already have that duty to know to some level about the technology they’re using, and the benefits and risks associated with it,” Polk said. “The members of the South Carolina Bar realize that this is a modern trend.”
Data from surveys such as the ABA Legal Technology Survey Report back up the law profession’s reputation for an uneasy and uneven embrace of the latest technology. The original committee was formed at a time when the internet was just beginning to consign typewriters to the dustbin of history. Today, the triumph of email is more or less complete, but issues like cybersecurity and artificial intelligence (AI) are creating a new set of concerns for attorneys.
The committee, which met for the first time on March 29, is still developing its goals for the longer term, Polk said. Some of the ideas that have been discussed so far include offering educational opportunities for lawyers and creating a centralized list of the sorts of technology available to attorneys in the various courthouses across the state, which can vary substantially.
Polk said that he would eventually like to have materials addressing technological questions available on the state bar’s website so that attorneys can have access to materials vetted by South Carolina attorneys and wouldn’t need to be routed to other state bars’ sites.
There are currently more than 20 members on the committee, said Courtney Troutman, director of the bar’s Practice Management Assistance Program. They include both attorneys, drawn from across a range of technological abilities, and non-attorney tech types. Some members served on the original technology committee.
“[The new comment to Rule 1.1] has not been adopted formally in South Carolina as of yet, but we’re trying to get ahead of that with this committee, so that when South Carolina does ultimately adopt some form of a technological competency requirement, we will have a set of best practices to guide the attorneys so that they know what they need to know in their practices to take reasonable precautions with technology, and that’s where the committee comes in trying to help with that,” Troutman said.
As the committee progresses, it may begin looking into some of the newer issues that are out there for attorneys, like AI and blockchain technology and its application to legal practice, Troutman said.
The current plan is for the committee to meet once every two months, and lawyers and law office personnel with technology experience are invited to join. More information about the committee is available on the bar’s website.
Follow David Donovan on Twitter @SCLWDonovan