From Federal Procedure Rules to State Bar Association Rules —Lawyers Need Tech Skills to Remain Competent

Butler Snow LLP

Butler Snow LLP

Today, amendments to the Federal Rules of Appellate, Civil, Criminal, and Bankruptcy Procedure go into effect. Based on these amendments, litigators may want to brush up on their tech skills. In fact, litigators may be required to do so if their state bar association follows the national trend in adopting the American Bar Association’s amendment to Model Rule 1.1. This national trend pushes lawyers to maintain basic technological competence as an ethical duty to their clients.

Rule 26(c) of the Federal Rules of Appellate Procedure, Rule 6(d) of the Federal Rules of Civil Procedure, Rule 45(c) of the Federal Rules of Criminal Procedure, and Rule 9006(f) of the Federal Rules of Bankruptcy Procedure gave lawyers an extra 3 days to act when being served by electronic means. As of today, these rules are amended[1] to remove service by electronic means from the modes of service that give counsel 3 additional days to respond.

This means there is no extra time built in for lawyers who do not possess the tech skills needed for electronic transmission.

The Advisory Committee on Rules of Civil Procedure noted that the concerns that prompted the decision to allow the 3 added days for electronic submission “have been substantially alleviated by advances in technology and in widespread skill in using electronic transmission.” (Emphasis added).

Possessing basic tech skills is not only needed for service by electronic means, but also required by half of the nation’s state bar associations that have adopted the American Bar Association’s Model Rule 1.1.

The ABA’s Model Rule 1.1 outlines a lawyer’s ethical duty of remaining competent. The 2012 amendment to Comment 8 of Rule 1.1 added that lawyers should “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.” (Emphasis added).

Four years after this amendment, 25 states have adopted a version of ABA Model Rule 1.1, thus signaling a national trend in pushing lawyers to maintain a basic understanding of technology as part of their ethical duty.

These states include: Arizona, Arkansas, Connecticut, Delaware, Florida, Idaho, Illinois, Iowa, Kansas, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

Florida is the latest state to adopt the amended ABA Model Rule. Experts note that “Florida has gone a step further than the ABA and any other state to date by adopting a continuing legal education requirement as well. Florida Bar members now will have to complete three CLE hours in an approved technology program over a three-year period.”

Even in states that have not yet adopted the amended ABA Model Rule, such as California, lacking basic technological competence could still be an ethical violation of the general duty of competence, according to this Law360 article. For example, the State Bar of California Committee on Professional Responsibility and Conduct remarked:

An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI.”

As a best practice, litigators will need to possess basic tech skills even if their state bar association do not explicitly include technological competence.

The amendments to the federal procedure rules are in line with state bar associations across the country— as technology advances, lawyers need tech skills not only practice competently under the federal procedure rules, but as an ethical duty to their clients.

[1] The amendment to Federal Rule of Civil Procedure 6(d) signals another important change:  “Eliminating Rule 5(b) subparagraph (2)(E) from the modes of service that allow 3 added days means that the 3 added days cannot be retained by consenting to service by electronic means.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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