What are the consequences of the amendment to the comment to Model Rule 1.1?

Last August, the ABA amended the comment to Model Rule 1.1 to extend the notion of competence to include knowledge about "technology."  Specifically, the new comment states, in part, that "[t]o 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..." 

The comment does not define or explain the concept of "technology" leaving much to interpretation.  However, the history of the debates within, and the proposals of, the Commission 20/20 which suggested the amendments does provide some guidance. At the very least, the initial concern related to the possibility that attorneys were risking disclosing confidential information by mistake because of their lack of understanding of how computer programs work (particularly how they create and store data and metadata).  (For previous posts on that subject go here and here or search in the internet/social media section of the blog here.)

But "technology" is a much broader concept which means there can be serious implications to the application of the new comment.  For this reason it will be interesting to see how this new duty to be knowledgeable about computer programs and other technology is interpreted and applied.

One question that is now being debated is whether it would be incompetence not to use certain computer programs or social media.  This was the topic in a panel at a recent ABA Professional Responsibility conference and it is now the topic of an article published today in the Student Lawyer.

The article starts by stating:  "Most law students have been thoroughly warned about the dangers of social media, misuse of the Internet, importance of protecting online reputations, and so on. The message is don’t make anything available on the web that you would not want a potential employer to access.  But as a practicing lawyer, you may have an ethical responsibility to use the Internet and social media as tools to actually help you in your practice"  Go here to read the rest of the article.