From the Newsletters - New supreme court rules up the ante for tech competence

A recent amendment to an Illinois ethics rule makes it even more important that lawyers learn technology basics.

"Legal competence requires tech competence"
By Bryan M. Sims
Standing Committee on Legal Technology - May 2016

Any reason to doubt that the "competent representation" required by lawyer ethics rules includes technological competence vanished on January 1 of this year, Naperville lawyer and technologist Bryan Sims writes in the May newsletter of ISBA's Standing Committee on Legal Technology.

That's when the adoption of Comment 8 to Rule 1.1 ("Competence") of the Illinois Rules of Professional Conduct took effect. The comment reads as follows: "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."

The comment "explicitly requires an attorney to keep abreast of the benefits and risks of technology relevant to the law," Sims writes. It joins other Illinois Supreme Court rule changes, also effective January 1, that impose tech-related obligations on lawyers.

"Rule 131(d) now requires that, on all documents filed in court, attorneys must include an email address for service," Sims writes. "It also permits an attorney to include up to two secondary email addresses for service. Rule 11(b)(6) permits service of documents via email to the address(es) identified pursuant to Rule 131."

So what does technological competence mean? The rule doesn't say, Sims writes, but he offers some informed speculation, noting that it's "likely to vary from attorney to attorney and practice area to practice area.

"For example, an attorney who practices litigation likely needs knowledge about what e-discovery is and how to conduct it," he writes. On the other hand, "an attorney who does only estate planning likely needs no e-discovery knowledge. Similarly, an attorney practicing family law likely should be well-versed in social media, while an attorney engaged in transactional law likely would not need that same level of knowledge."

But some basics will probably be required of all lawyers, Sims writes. "[I]t's not a stretch to imagine that all attorneys should know how to send and receive an email, as well as attach a document to an email. All attorneys should also understand the risks of clicking on links in random emails. [And all lawyers] should be able to properly open and save files on their computer and be able to efficiently enter information into the computer, whether by typing or using dictation software."

Lawyers should also know how to do Google searches and understand the risks posed by metadata and using public wifi networks, Sims writes.