By David D. Samani
On March 22, 2021, the California Supreme Court approved the addition of a new comment—Comment — to Rules of Professional Conduct, Rule 1.1. This new addition brings California in line with a majority of other jurisdictions in now making a direct reference in its Rules of Professional Conduct to a duty to keep abreast of changes in the law and, in particular, relevant technology.
Rule 1.1 provides that a lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to provide legal services with competence. The rule defines “competence” to mean the application of (i) the learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of the lawyer’s legal services. Under the newly added Comment  to Rule 1.1, “[t]he duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.”
The language in Comment  is similar to the language in Comment  of the ABA’s Model Rules of Professional Conduct Rule 1.1, which provides 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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
Prior to the adoption of Comment , California’s Rules did not include a specific reference to technological competence. Consequently, it was previously the case that room for debate existed as to what extent a specific duty to keep abreast with changes in the law, particularly with technology, existed under the California Rules of Professional Conduct (though, of course, it could have nevertheless been argued that the definition of competence included certain technological know-how in any event, when it would be “reasonably necessary” for the performance of a legal service). This parenthetical point was the position taken by the State Bar Committee on Professional Responsibility and Competence. (See, e.g., California State Bar Formal Ethics Opns. 2015-193 (Duties regarding electronic discovery requests); 2012-184 (Virtual Law Office Practice); 2010-179 (Duties of confidentiality and competence in using technology).)
Comment  now provides a measure of direct guidance on the subject, dictating that lawyers must at least be cognizant of evolution in their fields, including technical innovation. The extent to which this change will impact a lawyer likely will depend on the services a lawyer provides to a client. For instance, Comment  expressly provides that the “duties set forth in [Rule 1.1] include” the duty to keep abreast of the changes in law and in relevant technology, meaning Comment  is to be read in conjunction with Rule 1.1, subdivisions (a) and (b)’s duty to provide legal services with competence. A lawyer’s obligation to keep abreast with changes and relevant technology, then, is likely to require attention to any developments relevant to the services the lawyer provides to the client—i.e., changes relating to the area in which the lawyer practices.
Certain practice areas have already begun to rely on certain technology—such as, for example, family law practice’s use of software to aid in the process of calculating guidelines for child and spousal support. Naturally, in those practice areas, some command or understanding of the technology commonly employed would seem to fall under the purview of Comment .
Furthermore, a civil litigator handling a document-intensive case, for instance, may find it necessary to develop an understanding regarding the various uses technology may have with respect to electronic discovery, such as a working knowledge of how to obtain, manage, and effectively use native files and metadata. It also may require a lawyer to have a sufficient grasp of the technology to properly counsel a client about the proper methods for collecting and preserving data. (See Allied Concrete Co. v. Lester (Va. 2013) 736 S.E.2d 699 (sanctions assessed and adverse jury instruction approved where the court concluded that attorney and plaintiff failed to preserve data on Facebook account); James v. Nat’l Fin., LLC (Del. Ch. 2014) 2014 Del. Ch. LEXIS 254 at *37 (noting that technological incompetence did not provide an excuse for discovery misconduct and citing Delaware Lawyers’ Rules of Professional Conduct).)
Similarly, a transactional attorney conducting due diligence may need to be familiar with document review platforms and how new technology, such as the possible use of artificial intelligence-powered review, may be able to streamline more time-consuming aspects of the process. Indeed, one impetus for the addition of Comment  seems to have been a desire to ensure that lawyers remain mindful of ways that new technology may make the practice of law more efficient, thereby benefiting clients and increasing access to justice.
As noted above, Comment ’s inclusion with Rule 1.1 should logically relate to the lawyer’s learning, skill, and ability as applied to legal services rendered for a client. However, lawyers may need to consider whether the duty evoked in Comment  may ultimately have some interplay with other duties set forth in the Rules of Professional Conduct. For instance, technological developments may be relevant to how a lawyer communicates with a client (see Rule 1.4), handles a client’s confidential information (see Rule 1.6), searches for conflicts (see Rule 1.7), or establishes ethical screens (see Rules 1.10 and 1.17). Although the placement of Comment  in Rule 1.1 would suggest that there is no direct interplay, a broad reading of the lawyer’s provision of services may warrant an examination of whether the lawyer is employing available technology appropriately in relation to these duties.
With this change to Rule 1.1, lawyers should be mindful of the need to stay apprised of changes in their respective fields and the technology available that may affect the services provided to a client. The change highlights the need for continuing education topics that discuss new developments and breakthroughs for lawyers. Furthermore, for services that may implicate technology that a lawyer does not feel comfortable with, a lawyer may wish to refer to Rule 1.1, subdivision (c), which provides that where a lawyer does not have sufficient learning and skill when legal services are undertaken, the lawyer may still provide competent representation by (i) associating with or consulting with a lawyer reasonably believed to be competent, (ii) acquiring sufficient learning and skill before the performance of the services required, or (iii) referring the matter to a lawyer reasonably believed to be competent.
David Samani is a partner in the Los Angeles office of Lewis Brisbois Bisgaard & Smith LLP and a member of the California Lawyers Association Ethics Committee. He focuses his practice on the defense of attorneys and other professionals. The opinions expressed here are his own.