As we know, Texas has a duty of technology competence requirement for attorneys. A large majority of states have a similar requirement. I noted in a recent LawSites blog that California just became the 39th state to adopt that duty. Texas was the 36th when on February 26, 2019 the Texas Supreme Court amended Comment 8 to Rule 1.01 of the Texas Professional Rules of Disciplinary Conduct. What does this mean?

I submit that there is more to the duty than initially meets the eye.

The need for technology competence

I believe this increasingly adopted requirement means that more attention will be given to this duty than may have been the case initially.. Lawyers were traditionally very slow to adopt technology. As the lawyers in my 4-county judicial District have been frequently heard to say, “Jones brought us kicking and screaming into the 20th century.” I have now left it up to Their Honors Garrett and Stubbs to work on the 21st century. Those who know me know that I have practiced what I preach viz technology. See What am I doing to secure your private info? and law firm technology for example.

Lawyers are now adopting technology at a rapid rate and thus it becomes increasingly important to make sure that the adoption is well-done. Let us first examine some of the reasons why and in what ways lawyers are adopting technology:

• Efficiency with functions such as document automation, searchable in-house databases, phone dialers.
• More effective communication with clients with such as automated phone answering (both live and robotic), texting from the computer, and teleconferencing.
• Efficiency in billing and collecting such as with LawPay and the ability for the client to pay online with a credit card.
• Cloud computing where your software is in the cloud and at least some if not all of your data is in the so-called “cloud.”
• Measuring attorney and to staff productivity.
• Management of deadlines, task assignment and completion, and other aspects of basic case management.
• The ability to store massive amounts of data of in-house and in the cloud.
• High-powered internal communications using such as Microsoft Teams or Slack.
• Automated intake systems where the client begins with a Web form.

Now ask yourself: How many ways can this go wrong? There is an excellent article from 2019 that not only discusseses a number of the ways that law firms can utilize technology, but also discusses some of the potential danger areas. See Five ways the best law firms use technology. (2019, November 22). Law Technology Today. https://www.lawtechnologytoday.org/2019/11/five-ways-the-best-law-firms-use-technology/ (accessed 3/25/2021)

There are many, many ways “this” can go wrong. To name just a few:

• Know any lawyer whose email has been hacked?
• If you store data locally, is it in a physically secure location? Is it restricted to limited access? Is that offline storage accessible via the internet? Of course it is.
• If you store data externally (in the “cloud”) are you using a provider known to be secure?
• Are you storing HIPPA data in the cloud? There are specific requirements to do so.

I believe that most lawyers think that the requirement of technology competence addresses mainly the duty to protect client information. But here is another view:

The vagueness of the amendment, however, provides space for the answer to this question to evolve with changes in technology. New technologies enter the legal market every year and maintaining technology competence will now require a lawyer’s knowledge about these advancements to continually grow. Specifically, lawyers will be expected to know how those tools affect delivery of legal services to their clients. For example, if an easily adaptable and affordable technology solution allows for legal services to be delivered more efficiently then, under certain circumstances, it may be considered a violation of the ethical duty of technology competence to bill more time than necessary to complete the project instead of purchasing the technology solution. (emphasis added)

Rogers, E. A. (n.d.). State Bar of Texas. https://www.texasbar.com/AM/Template.cfm?Section=articles&Template=/CM/HTMLDisplay.cfm&ContentID=45412

The amended comment to the Rules reads merely: “8. Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology.” According to Ms. Rogers’ article “The Texas Supreme Court’s order was set in motion by resolutions that were passed in April 2018 by the State Bar of Texas Computer & Technology Section and the Professional Development Subcommittee and Continuing Legal Education Committee. The resolutions were submitted to the State Bar of Texas Board of Directors, which approved them in June 2018 for submission to the Texas Supreme Court. The Supreme Court requested feedback from the Committee on Disciplinary Rules and Referenda and subsequently issued its order.”

The need in review

It seems to me, when reading the simple text of the Comment and considering Rogers’ view of a client-based requirement, that the need for competence is an ethical one firstly to use technology where it will better serve the client’s needs (or cut your bill if still using a yellow pad and No. 2 pencil); and secondly to do so in a manner that protects client information. The duty of technology competence may be a more wide-ranging duty than first meets the eye.

A goodie to leave you with

This section from the Lawyerist is a great compendium of available technology. Click here. Also take a special look at the section on Legal Technology Ethics & Compliance.