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Technological Advancements and Your Duty of Competence

| Written by Imogen Fraser-Clark

Duty of Competence is the first rule stipulated by the American Bar association (ABA) and the 7th Core Duty set out by the Bar Standards Board (BSB) for the UK (derived from the Legal Services Act 2007). What we can understand from this is that the importance of the responsibility for practising legal professionals to maintain adequate knowledge of current and emerging technology and practices cannot be overstated. 


ABA Rule 1.1 - A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

BSB Handbook - Pt.2 Code of Conduct - gC39 - In order to be able to provide a competent standard of work, you should keep your professional knowledge and skills up to date, regularly take part in professional development and educational activities that maintain and further develop your competence and performance...


With this in mind, and following on from the theme of our blog post about the Metaverse and how advancements in technology are set to challenge the industry as a whole, we thought we would take a deeper dive into how the people working within the industry are like to be affected by the rapidly expanding legal technology landscape. 

It is no secret that the legal industry is notoriously 'stuck in its ways' with legal professionals being some of the most reluctant when it comes to the adoption of new technology. This is understandable, we are working with highly sensitive data in high-stress environments. We can't afford for anything to go wrong. However, just because you don't currently use the software everyone's talking about, or haven't adopted the latest practices, doesn't mean you don't have to know about them.  

With yet another state (Hawai'i) adopting the duty of technology competence for lawyers, bringing the number of complying states up to 40 as of the 1st January 2022, it is clear that both client and court expect lawyers to be well versed in the technologies available to them when completing a case. After all, it is a lawyer's duty to put the best interests of their client first, can they really do this if they don't understand all the options available to them? 

The question this begs is... How much knowledge is enough knowledge? 

This is where we catch a bit of a break, in that, in-depth knowledge of the workings of new technologies is not actually required to maintain your duty of competence. According to the 2012 amendments to the Model Rules of Professional Conduct, Rule 1.1 comment 8 now states with regard to maintaining competence...

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.  

Thus, a knowledge of how the technology can potentially affect or benefit your client is all you need. *Breathes a sigh of relief* 

Tips for staying one step ahead:

1 - Make friends with your service providers - To maintain their relevance and value, service providers to the legal industry are often at least one step ahead, if not more when it comes to the adoption of technology. They will be able to advise you on the technologies that best suit your circumstances and meet your client's needs and can do so in a more digestible manner than stand-alone literature etc.

2 - Follow blogs - Industry thought leadership blogs are an amazing place to find easily digestible content on a wide variety of matters concerning your industry, including matters you might never have heard about. They are easily the most accessible ways of keeping up-to-date, and if after reading a blog post you still don't understand, the authors are often very happy to further clarify and provide more information should you reach out to them. 

3 - Attend events - Launch parties for new technologies are often open to all people within the industry and will be filled with others, like yourself, who are there to learn more about the technology/offering. The staff present are there for the specific purpose of explaining their technology to the crowd so it is the perfect place to ask all the questions you may have... you can bet someone else has them too!  

So there you have it! As long as you maintain a basic knowledge of the benefits and drawbacks of emerging technology, and actively seek to improve your knowledge via any or all of the routes above (or others - we'd love suggestions), you are more than meeting your obligation of competence. Plus, if you really enjoy a particular practice or technology, there is nothing stopping you from researching it further and becoming a thought leader on the topic yourself! 

Want to learn more about the latest tech disrupting the industry? Why not check out our blog post on Artificial Intelligence and how it is used in eDiscovery, or even better... download our FREE Active Learning eBook now!

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