(This blog is the first of a three-part series.)
Competence is the ethical foundation upon which everything we do as lawyers is based. To be competent is to have the necessary ability, knowledge, or skill to do something successfully. Traditionally, lawyers do this by refining their specific areas of expertise and pursuing continuing legal education. While CLEs with a technological component are the primary means for attorneys to maintain technological competence, more is required to truly maintain your edge as a practitioner in the Digital Age. But what exactly does it mean to be competent when you are navigating a technological landscape that is constantly changing, continuously expanding and infinitely complex?
Defining “technological competence”
One way in which the legal field attempts to keep up with changes in technology is by refining the ethical responsibilities of attorneys. Under the ABA Model Rules of Professional Conduct, lawyers have always had a duty of technological competence to the extent that such duty fell within the required legal knowledge, skill, thoroughness and preparation necessary to competently represent a client as prescribed by Model Rule 1.1. However, in 2012, the ABA made this specific requirement explicit when they revised Comment 8 to Model Rule 1.1 which now reads:
 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.
Today, 39 of 50 states have integrated this duty into their own ethics rules in some form. So far, Alabama, Georgia, Hawaii, Maine, Maryland, Mississippi, Nevada, New Jersey, Oregon, Rhode Island, and South Dakota have not yet adopted Comment 8 in any direct form. Until recently, California only had a duty of eDiscovery competence for any lawyer representing clients in litigation articulated in Formal Opinion 2015-193. However, that all changed very recently when the California Supreme Court modified a lawyer’s duty of competence to include the language from the Model Rule as a comment to their Rule of Professional Conduct 1.1. Florida is the only state to attach a mandatory CLE requirement for technology, requiring three hours of technology-focused credit every three years. While a notable effort to specifically acknowledge technology based CLEs, such a minimum requirement alone is hardly enough. Regardless of the specific wording that defines this duty, or lack thereof, it behooves every practicing attorney to do what is necessary to effectively navigate and address the dynamic challenges posed by the technological world.
The Three Elements for Building Technological Competency:
Achieving competence in the digital age happens through diligent exploration over time. There is no one CLE, blog, or webinar that can do it for you – and this piece is no exception. Many articles address what a competent practitioner should know, often by listing certain terms and various best practices tied to the EDRM. The more important question is HOW attorneys can achieve technological competence. What I hope to do with this piece is to provide some insight into my competency routine which may offer some guidance for you to find your own pathway through the technological landscape.
I break down my efforts towards achieving and maintaining competency into three core elements that combine to help me stay on top of current trends and technologies. These elements should be thought of as ingredients in a competency soup as opposed to steps, as they are all interrelated and interchangeable.
Element 1: Education
Education is the obvious foundation of competence in any field, and there is no shortage of resources when it comes to eDiscovery, data law or any topic found at the intersection between law and technology. The pandemic has further accelerated a deluge of resources for attorneys, but that makes it all the more important to be a savvy navigator in this sea of content.
I break out my educational efforts into five categories:
1. Case Law: I focus on reviewing one to two cases each day. One of the best resources for searching and filtering for technology-focused case law is eDiscoveryAssistant.com. Kelly Twigger, Founder of eDiscovery Assistant, offered ESI Survival Guide viewers an in-depth overview of how to get the most out of eDiscovery Assistant, which you can watch here. This is a comprehensive, subscription-based resource for up-to-date case law, template forms and checklists, Federal, District, State rules, regulations and ABA opinions. While you stay abreast of current opinions, it is important to go back and read the eDiscovery Greatest Hits – this would include cases like the Zubulake series, Lorraine v. Markel, O’Keefe, Da Silva Moore and many others – to gain direct insight into how today’s judiciary approaches various technology issues, while building your legal tech lexicon.
2. Laws, Rules, Regulations and Policies: It is important to read the full text of new laws and regulations rather than just rely solely on second-hand interpretations in the blogosphere. Aside from the CCPA, CPRA and GDPR, some other timely reads might include the full text of the New York SHIELD Act, the recent policy paper from the FDPIC addressing the Swiss-US Privacy Shield framework, and the recent Department of Commerce White Paper on EU-U.S. data transfers following Schrems II. At least once a month, I also research the standards, ESI protocols and other practices adopted by various courts in jurisdictions (preferable in context) across the U.S. to evaluate differences, similarities and developing trends.
3. Concepts and Best Practices: This category includes CLEs, blog posts, podcasts, certification texts, social media posts – basically, anything that presents and/or analyzes a relevant technological concept. There are many great resources, but some of the essentials include The Sedona Conference publications, ACEDS webinars and The Relativity Blog. Some other must-subscribe blogs include Craig Ball’s Ball in Your Court, Kelly Twigger’s eDiscovery Bytes, Debbie Reynolds’ website Debbie Reynolds Consulting, Chris Dale’s eDisclosure Information Project, Greg Buckles’ eDiscovery Journal, and Doug Austin’s eDiscovery Today, among many others. Another tip is to set Google Alerts for terms such as “eDiscovery,” “Data Privacy” or related terms. These alerts along with some trusted sites and bloggers, including LegalTech News, Law Technology Today, IAPP’s Daily Dashboard and a handful of law firm blogs, are a few of my primary sources for gathering news, industry developments and new avenues to explore.
4. Cultural Immersion: Attorneys must focus on more than just eDiscovery for technological competence. We must also consider data security, information governance, practice management technology, data privacy (which is of paramount importance) and other diverse disciplines. It is important to look outside the legal realm and become a consumer of the technological world in which we live – current trends, global developments, cutting edge innovation, and more. Be aware of current social media sites, their features, policies and usage; learn how to use that smart phone, wearable, or IoT device you own; read WIRED Magazine, the MIT Technology Review, CNET or another publication regularly. The key is to start – just pick a lane and dive in.
5. Tools of the Trade: I am constantly trying to build my competence within the tools that I use while evaluating new pieces of technology. Relativity is one company that provides a significant depth of resources for learning their tool and understanding the legal technology space generally. Regardless of the tools you use, or if you are just beginning to use technology, search for online resources and read market reports. If you work with a vendor, take advantage of training opportunities, attend demos of new tools and ask questions. Getting hands on experience with the available technology is a great way to educate yourself while reinforcing other categories of learning.
In my next blog post, I cover Element 2: Engagement, which discusses how attorneys can start using their developing education to improve technology competence.