In 2016, Florida became the first state to mandate technology training for lawyers, when it adopted a rule requiring lawyers to complete three hours of CLE every three years “in approved technology programs.” The requirement went into effect on January 1, 2017. On April 20, 2018, the North Carolina State Bar Council approved a proposed amendment to the lawyer’s annual CLE requirement. That amendment, if enacted, would mandate that one hour of the required twelve hours of annual CLE training be devoted to technology training (defined as a program, or a segment of a program, devoted to education on information technology (IT) or cybersecurity [see N.C. Gen. Stat. §143B-1320(a)(11)]).
While there is no indication that New York will be next to impose such requirements, it may only be a matter of time until other states (including New York) follow Florida and North Carolina’s lead. Indeed, in a world where emails, tweets, texts and instant messages are a routine way of life and way of conducting business, lawyers should be expected to maintain a basic level of competence regarding technologies and electronically stored information. Various Model Rules (see, e.g., ABA Model Rule 1.1, Comment 8)* and State Opinions (see, e.g., New York County Lawyers’ Association Professional Ethics Committee Formal Op. 749 [Feb. 21, 2017])** have already indicated that a lawyer’s duty of competence includes technological competence. And, there is decisional law concluding that “professed technological incompetence is not an excuse for discovery misconduct.” James v. Nat’l Fin. LLC, No. CV 8931-VCL, 2014 WL 6845560 (Del. Ch. Dec. 5, 2014).
Because the electronic nature of today’s world is here to stay, it would make great sense to mandate regular training in areas of technology and cybersecurity. Please contact me at email@example.com if you are admitted to practice in New York and would like to be added to my technology CLE invitee list.
*American Bar Association Model Rule 1.1 – “Duty of Competence.” Comment 8 : “. . . a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . .”
** New York County Lawyers’ Association Professional Ethics Committee Formal Op. 749 (Feb. 21, 2017) discussing the “ethical duty of technological competence with respect to the duty to protect a client’s confidential information from cybersecurity risk and handling e-discovery” in a litigation or government investigation.