Illinois Bar Journal

July 2016Volume 104Number 7Page 41

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Legal Tech/Ethics

From the Newsletters - New supreme court rules up the ante for tech competence

A recent amendment to an Illinois ethics rule makes it even more important that lawyers learn technology basics.

"Legal competence requires tech competence"
By Bryan M. Sims
Standing Committee on Legal Technology - May 2016

Any reason to doubt that the "competent representation" required by lawyer ethics rules includes technological competence vanished on January 1 of this year, Naperville lawyer and technologist Bryan Sims writes in the May newsletter of ISBA's Standing Committee on Legal Technology.

That's when the adoption of Comment 8 to Rule 1.1 ("Competence") of the Illinois Rules of Professional Conduct took effect. The comment reads as follows: "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."

The comment "explicitly requires an attorney to keep abreast of the benefits and risks of technology relevant to the law," Sims writes. It joins other Illinois Supreme Court rule changes, also effective January 1, that impose tech-related obligations on lawyers.

"Rule 131(d) now requires that, on all documents filed in court, attorneys must include an email address for service," Sims writes. "It also permits an attorney to include up to two secondary email addresses for service. Rule 11(b)(6) permits service of documents via email to the address(es) identified pursuant to Rule 131."

So what does technological competence mean? The rule doesn't say, Sims writes, but he offers some informed speculation, noting that it's "likely to vary from attorney to attorney and practice area to practice area.

"For example, an attorney who practices litigation likely needs knowledge about what e-discovery is and how to conduct it," he writes. On the other hand, "an attorney who does only estate planning likely needs no e-discovery knowledge. Similarly, an attorney practicing family law likely should be well-versed in social media, while an attorney engaged in transactional law likely would not need that same level of knowledge."

But some basics will probably be required of all lawyers, Sims writes. "[I]t's not a stretch to imagine that all attorneys should know how to send and receive an email, as well as attach a document to an email. All attorneys should also understand the risks of clicking on links in random emails. [And all lawyers] should be able to properly open and save files on their computer and be able to efficiently enter information into the computer, whether by typing or using dictation software."

Lawyers should also know how to do Google searches and understand the risks posed by metadata and using public wifi networks, Sims writes.

Member Comments (4)

It would be interesting now that the court tells the bar it must be technically savvy to have the court also recognize technology exists. Yes, beyond efiling.

Why does a lawyer have to go to the courthouse and charge a client for that time, when technology has existed for years that provides video and audio facilities for the lawyer to remotely communicate with the bench?

Certainly, on routine matters it is now absolutely unnecessary to waste the time, gasoline and client's money to physically be in the courtroom on every phase of a case.

Brian, I enjoy your advice at seminars, let's start pushing the court to move in that direction, and not at the normal snail's pace we have seen in the past.

now that we have all the appellate court opinions on line due to technology, what is the purpose of rule 23? why not abolish it?

even rule 23 opinions are published on line. so why not be able to cite them as precedent?

the purpose of the rule originally was to limit the number of published opinions to save paper and publishing costs and distribution costs of books. do we all remember books? but since there are no longer books commonly used, why not publish all opinions?

sometimes the rule 23 ones do clarify law, do have presidential value, yet they cannot be published.

i guess we non judge lawyers must keep up with technology but judges need not.

I hope Mr. Sims is correct that "relevant" technology will vary from practice area to practice area. I'm an old estate planner with a heavily transactional practice. The last thing I want to be told I have to master is social media. I'm waiting to see what the tech gurus have to say about the risks of doing all our court filings electronically, right after some hacker in a divorce or criminal case sets out to erase or otherwise do electronic damage in some county's electronic system. Can't happen? Did anyone just see the results of the Pentagon's recent experience with hiring hackers to discover vulnerabilities in our national defense computer systems? Scares me. How about the well publicized hacking into the IRS return copy system? Heaven help us from the techies.

Even Hillary Clinton is not required to be able to send an email and she was Sec of State ... emails are commonly lost ... will create some degree of argument over when it was sent etc

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