Ever since 2012, when the American Bar Association amended the Model Rules of Professional Conduct to include a duty of technology competence, adoption has spread across the United States, with 37 states having now formally adopted some version of Model Rule 1.1, Comment 8.
But the U.S. is not alone in considering lawyers’ duty to understand the benefits and risks of technology. As I reported here way back in 2017, the Federation of Law Societies of Canada had proposed changes to its Model Code of Professional Conduct that would include a duty of technology competence similar to the ABA rule.
Now, the Federation has acted. On Oct. 19, it formally amended its Model Code to include a duty of technology competence. Similar to the ABA rule, the Federation’s duty is embodied in comments to its rule on maintaining competence, Rule 3.1-2. These new comments say:
[4A] To maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer’s practice and responsibilities. A lawyer should understand the benefits and risks associated with relevant technology, recognizing the lawyer’s duty to protect confidential information set out in section 3.3.
[4B] The required level of technological competence will depend on whether the use or understanding of technology is necessary to the nature and area of the lawyer’s practice and responsibilities and whether the relevant technology is reasonably available to the lawyer. In determining whether technology is reasonably available, consideration should be given to factors including:
(a) The lawyer’s or law firm’s practice areas;
(b) The geographic locations of the lawyer’s or firm’s practice; and
(c) The requirements of clients.
Just as individual states must adopt an ABA model rule, the individual Canadian provincial and territorial law societies must
