The Meaning of Technology “Competence” for South Carolina Lawyers: A Look at Revised Comment 6 to Rule 1.1

Introduction

Last week the S.C. Supreme Court approved, as part of a package of proposals, a revision to Comment 6 of SCRPC Rule 1.1 “Competence”.

I was surprised to learn that the S.C. Bar had submitted a proposal for the Court’s consideration. As a member of the Bar, I was not aware of how this proposal came about, or even exactly who submitted it. To be fair, I don’t have the slightest idea about how the Bar takes an action like this, so shame on me.

But I digress. The point is, I wanted to see if I could understand what the Bar submitted, why the proposed comment differed from that adopted by the American Bar Association in 2012 in its Model Rules of Professional Conduct, and what this means in terms of what South Carolina lawyers actually do or change in response.

Setting The Table

The comments discussed below do not alter the text of Rule 1.1, “Competence”, which is identical in the Model Rules and the SCRPC:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Both the Model Rules and the SCRPC group the comments to Rule 1.1 into several subheadings:

• Legal Knowledge and Skill
• Thoroughness and Preparation and
• Maintaining Competence.

For your frame of reference, the “technology language” has been added to the comment category labelled “Maintaining Competence” in both the Model Rules and the SCRPC.

Prior to the revision discussed below, Comment 6 to SCRPR 1.1, “Maintaining Competence” read:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Now, you could argue (and many have) that Comment 6 has always required a lawyer to understand technology, as the use of technology tools are a part of the “changes in the law and its practice” language.

Model Rule Comment 8: “Relevant Technology”

In 2012, the ABA modified the existing “Maintaining Competence” comment (Comment 8 to Rule 1.1 of the Model Rules) (“Model Rule Comment”):

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.

Some version of the Model Rule Comment has been adopted in 38 States. SC did not adopt the language above.

So, in giving some shape or context to what “legal knowledge” and “skill” might connote- and particularly “maintaining” them over time, the Model Rule Comment put lawyers on notice that “relevant technology” is part of that ongoing skill set, and that those computer tools will require sharpening and replacement. At least that is the way I understand it.

The term “relevant technology” 1) recognizes that technology is dynamic and not fixed in time; 2) is not limited to technology used by an attorney or a client; and 3) is properly limited to those technology tools that are “relevant.”

In the wake of the Model Rule Comment, I wrote and presented several times making reference to it and discussing technology competence, including Computer and KM Stuff Good Lawyers Should Know (First Draft), Going Paperless, Part II: Securely Storing the Client’s Electronic File, and Every Lawyer is A Technologist: Take a Step Back to Take the First Step Forward, Bit by Bit: Effective Use of People, Processes and Computer Technology in the Practice of Law, and Using Social Media Ethically: Maintaining Professional Responsibility in the Age of TMI.

Beyond the humble-bragging (most of these were self-published, mind you), I reference these to point out I have been thinking about this for more than a couple of years.

Revised Comment 6 as Adopted in SC

Revised Comment 6 to Rule 1.1 of the SCRPC (Revised Comment 6) differs from the Model Rule Comment:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including a reasonable understanding of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Revised Comment 6 is more limited than the Model Rule Comment. Below are my thoughts on the effects of adopting language different from the Model Rule Comment.

The Good News About Revised Comment 6

1. There is now a specific reference to technological competence in the SCRPC.
2. If Revised Comment 6 encourages lawyers to understand the benefits (effectiveness, efficiency) and risks (e.g. security concerns) of the technologies they use that result would be outstanding.
3. If Revised Comment 6 results in more specific tech-based training eligible for CLE credit, then the Bar will benefit. SC should have a technology CLE requirement similar to that in Florida and in North Carolina. But, as you can gather from the above, nobody is asking me what I think.
4. If the aim of Revised Comment 6 is to re-emphasize the language in SCRPC Rule 1.6 about securing confidential information (“store or transmit information related to the representation of a client”), then that is the kind of repetition (nay, perhaps even redundancy in a good way) that will benefit South Carolina lawyers.

The Potentially Problematic About Revised Comment 6

I won’t flesh out here how part of Revised Comment 6 (“store or transmit information related to the representation of a client”) merely repeats what is contained in Rule 1.6(c) “Confidentiality of Information” and its comments. That language is important enough to be repeated. And I can live with additional emphasis of the necessity to evaluate whatever technologies attorneys employ to secure client information in storage and in transmission.

My greater concern is that Revised Comment 6 revisions blunt or read out of the comment an attorney’s duty or obligation to “stay abreast” of changes in technology that are part of the law and its practice. Comment 6 explicitly recognizes that maintaining competence requires lawyers to change as the “law and its practice” changes:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including a reasonable understanding of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

However, the additional language in Revised Comment 6 narrowing the focus of the benefits and risks of technology to what the lawyer is “using” at a given point in time doesn’t concede that any “change” takes place at all.

By contrast, the term “relevant technology” in the Model Rule Comment encompasses how the client stores and transmits information, and the client’s use of social media platforms. (think litigation holds, electronic discovery, and privacy protections). Likewise, “relevant technology” includes the information systems and practices of opposing parties, as well as that of courts and tribunals offering e-filing capabilities.

More fundamentally, how can a lawyer assess the “risks and benefits” of the technology tools she uses without some reference to other available (potentially “relevant”) tools? As just one example, how can a lawyer evaluate the risk of sending sensitive client information via a unsecured email platform or via hand-delivery in an envelope) unless she understands there are more secure alternatives?

Conclusion: Yes, AND

In the reasonable and understandable effort to keep the Rules from being too prescriptive (What do we have to do right now to comply?), Revised Comment 6 leaves out important aspirational and practical guidance (What should we be encouraged to do to build skills and knowledge to maintain competence in a rapidly changing world?).

Put another way, The Model Rule Comment's citation to “relevant technology” does not announce that “you’re doing it wrong” (i.e. “violating” Rule 1.1) if you read law books, use legal pads and communicate with fax machines. But the Model Rule Comment suggests that becoming curious about and interested in evolving technologies might be worthwhile, because these tools could help you be a better lawyer. That language is noticeably absent from Revised Comment 6.

And “staying abreast” of the “risks and benefits of relevant technology” involves both assessing your current tools based on those criteria (as found in Comment 6) and comparing your tools to available alternatives (absent from Comment 6):

Computer technology is not the most useful information or knowledge solution (i.e. the best tool) in every situation. If taking notes on a legal pad continues to be the only way you will gather information, then that tool should not be removed from the toolbox. But consider whether information gathered electronically might benefit you. Likewise, a practitioner is not well-served using a computer presentation at trial unless she has evaluated its effectiveness in communicating information to a judge and/or a jury. And surely a review of the way you use email might spark some discussion about whether other methods of collaboration (and appropriate communication) exist and ought to be employed. The point is to be aware of how you do it and how you might do it better.

So I hope that Revised Comment 6 is a useful jumping-off point for South Carolina lawyers, mindful that we all have a long way to go.