Vermont Supreme Court

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The Vermont Supreme Court issued an order this month adding continuing knowledge of technology’s benefits and risks to Vermont lawyers’ Rules of Professional Conduct, joining Florida and 31 other states that officially require tech competency of its lawyers.

The trend nationwide, however, is one that observers said some lawyers aren’t prepared for.

What exactly does a lawyer need to know about technology’s benefits and risks? The answer is a bit vague. 

Michael Kennedy, past president of the Vermont Bar Association, noted that while his state’s newly amended rule isn’t specific, he understands tech competency to include e-discovery and safeguarding client data when transmitting or storing it in an electronic format.

The Vermont rule, set to take effect in December, comes six years after the passage of a similar American Bar Association amendment.

In 2012, the ABA amended its Model Rules of Professional Conduct based on a Commission on Ethics 20/20 report. The report stated a tech knowledge requirement was needed “to make clear that a lawyer’s duty of competence, which requires the lawyer to stay abreast of changes in the law and its practice, includes understanding relevant technology’s benefits and risks.”

The Florida Supreme Court added a continuing legal education component for technology in 2016, the first for mandatory bars nationally. The amendment took effect in 2017, expanding the overall CLE requirement to 33 hours in a three-year reporting cycle.

Ronald Minkoff, a Frankfurt Kurnit Klein & Selz partner and ABA Center for Professional Responsibility policy implementation committee member, said he was one of a very few who had reservations about the requirement in 2012.

“I personally had some misgivings about the rule when it was proposed because I thought there would be problems when older lawyers who aren’t as technologically in-depth were being judged by young bar regulators,” Minkoff conceded. “I thought that would present some problems. Frankly, as we’ve progressed I’ve seen the benefits of having technical knowledge.”

Minkoff recalled most took the view that the amendment provided a minimum standard for lawyers.

Robert Ambrogi, a Massachusetts lawyer and LawSites founder, said this rule may serve as “a very scary wake-up call for some lawyers.”

“I think this rule requires more [than] a passing familiarity and requires a more in-depth understanding of issues, such as data security,” he said. “I don’t think a lot of lawyers have depth of knowledge” in tech.

Minkoff noted older and solo practitioners, who may face issues of computer literacy, financing or carelessness, may find technology acumen harder to obtain. At larger firms, Minkoff said, lawyers may rely on associates, secretaries or IT to make sure their client data is secure.

Still, age may not pose much of a gap, Ambrogi said, because a young lawyer may have mastered social media in comparison to their older counterparts, but may not have experience in protecting clients’ data.

To be sure, technology misuses could lead to sanctions, fines or professional malpractice claims. Judges haven’t issued many ethical opinions or guidance regarding lawyers’ technology competency, according to lawyers contacted by Legaltech News.

If lawyers aren’t sure what to do about their tech competency, Minkoff suggested they reach out to their state bar associations or others for assistance.

“There’s a lot of things you can do to learn this. If I’m a solo practitioner, look at what the state bar is offering you [and ] your members on training. Whoever you are using for IT, hire them. … You have to learn it.”