When it rains it pours. Earlier today, I wrote about adoption of the duty of technology competence by the Federation of Law Societies of Canada. Now comes word of another U.S. state adopting the duty, bringing the total number of states to 38.
The latest is South Carolina, where on the day before Thanksgiving, the Supreme Court of South Carolina approved a package of amendments to the state’s Rules of Professional Conduct, all based on the 2012 amendments to the ABA Model Rules of Professional Conduct, which included a duty of technology competence as embodied in ABA Model Rule 1.1, Comment 8.
The new South Carolina provision is a modified version of the ABA model rule. It is found in a new Comment 6 to Rule 1.1, and reads:
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including a reasonable understanding of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
In its order, the Supreme Court also amended Rule 1.6, pertaining to confidentiality of information, to add a paragraph (c), which reads:
“A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
It also amended Comment 20 to Rule 1.6 to read as follows:
Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are
