Thirty-six states have adopted the duty of technology competence for lawyers, and now Michigan is considering joining the list with proposed changes to its Rules of Professional Conduct.
In April, the Michigan Supreme Court put out a request for public comment with regard to proposed amendments to Rules 1.1 and 1.6 of its professional conduct rules.
The comment period remains open, with Aug. 1 set as the deadline for filing comments.
Michigan’s proposal varies from ABA Model Rule 1.1, Comment 8, which is the version that most states have adopted. I find Michigan’s variation confusing. Here is the ABA version:
“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.” (Emphasis added.)
By comparison, the Michigan proposal would read:
“Maintaining Competence
“To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including the knowledge and skills regarding developing technology that are reasonably necessary to provide competent representation for the client in a particular matter. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances.” (Emphasis added.)
I am thrown off by the word “developing” in the Michigan version. Are lawyers required to be competent only with regard to “developing” technology, but not with regard to established technology? What does “developing” even mean in that context?
According to the court’s website, only one lawyer so far has filed comments on the proposed change, and he is not happy with it, writing that it “is probably the worst rule that I have ever seen.” He goes on:
How would
