The Fate of Comment 8: Analyzing a Lawyer’s Ethical Obligation of Technological Competence

by Lisa Z. Rosenof

Associate Member, University of Cincinnati Law Review Vol. 90

Executive Editor, University of Cincinnati Law Review Vol. 91

Editor’s Note: This article was originally published in May 2022 in Volume 90, Issue 4 of the University of Cincinnati Law Review. Click here to read the article in full.

I. Introduction

Anyone who has seen the viral video of the lawyer mistakenly adopting a cat persona as a visual overlay in a virtual court hearing1Guardian News, ‘I’m Not a Cat’: Lawyer Gets Stuck on Zoom Kitten Filter During Court Case, YouTube (Feb. 9, 2021), https://www.youtube.com/watch?v=lGOofzZOyl8 [https://perma.cc/SK5J-WG98]. would understand the importance of technological competence to the effective discharge of a lawyer’s professional duties. Whether they know it or not, lawyers use technology in every facet of their legal practice. As technology becomes more of a fixed presence in the everyday lives of lawyers, the American Bar Association (“ABA”), as the national voice of the legal profession, has taken measures to create an ethical duty of technological competence.2Model Rules of Pro. Conduct r. 1.1 (Am. Bar Ass’n 2020).

ABA Model Rule 1.1 (“Rule 1.1”) has long required lawyers to provide competent representation to clients.3Id. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.4Id. In 2012, the ABA amended Comment 8 to Rule 1.1 (“Comment 8”) to reflect that, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”5Id. at cmt. 8 (Am. Bar Ass’n 2020) (emphasis added).

The vagueness of the standard, however, poses underappreciated risks to lawyers, who may find themselves subject to professional discipline based not on their lack of legal knowledge or skill, but rather on their failure to keep pace with the rapid evolution of technologies with which they may have had no special training or expertise. For example, some lawyers use artificial intelligence (“AI”) during the jury selection process to correlate data on human behaviors based on patterns sourced from public data.6See infra Section III(A). Others engage in verbal questioning with potential venire members to ascertain their viewpoints and behaviors. Is it practical to say that the latter group is behaving unethically?

The ABA’s standard in Comment 8 provides no boundaries or roadmap to follow in determining whether a lawyer has breached this ethical duty of technological competence. The legal profession has failed to make strides to close the gap between its current standards and ongoing technological innovations. This Comment examines the potential for courts to construe the standard broadly, putting lawyers at risk of rule violations and malpractice in a world brimming with fast-paced technological innovations. This Comment argues that a lawyer is not supposed to ever “attain” complete technological competence but should stay informed to provide competent representation. In other words, technological competence sets a bar that keeps rising for lawyers, and it is okay that lawyers will never fully reach it. Ultimately, this Comment will suggest that the ABA delete the offending portion of Comment 8 and urge state bar organizations to mandate continuing education on technology.

In Section II, this Comment will present the historical analysis and legal jurisprudence of Rule 1.1, specifically in connection with Comment 8. Next, Section III will discuss the future viability of Comment 8 and propose a new, workable standard. This Comment will then conclude in Section IV by reasserting the need for the ABA and state bar organizations to provide guidance for lawyers regarding their ethical duty of technological competence. 


Cover Photo by Kari Shea on Unsplash

Author

  • Lisa Rosenof is the Executive Editor of the University of Cincinnati Law Review. When asked what area she would like to practice in the future, Lisa will likely joke that she has an area of practice of the week because she changes her mind weekly and enjoys exploring different practice areas. When she’s not in class, editing for law review, and editing some more for law review, Lisa enjoys scuba diving (not in Ohio), spending time outdoors, and pretending like she knows what she’s doing in the kitchen. Lisa's Student Comment, The Fate of Comment 8: Analyzing a Lawyer's Ethical Obligation of Technological Competence, was published in Vol. 90, Iss. 4 of the U. Cin. L. Rev.

References

  • 1
    Guardian News, ‘I’m Not a Cat’: Lawyer Gets Stuck on Zoom Kitten Filter During Court Case, YouTube (Feb. 9, 2021), https://www.youtube.com/watch?v=lGOofzZOyl8 [https://perma.cc/SK5J-WG98].
  • 2
    Model Rules of Pro. Conduct r. 1.1 (Am. Bar Ass’n 2020).
  • 3
    Id.
  • 4
    Id.
  • 5
    Id. at cmt. 8 (Am. Bar Ass’n 2020) (emphasis added).
  • 6
    See infra Section III(A).

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