What You Need to Know About the New California State Bar Rule of Professional Conduct on Technology
Part of a series from the ACBA Technology and Practice Management Task Force
After thorough debate and commentary from the California legal community, the California State Bar has formally adopted a revised set of Rules of Professional Conduct as of March 22, 2021. As part of this revision, California attorneys are required to “keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology” as part of his or her duty to perform his or her services with competence per Rule 1.1.
This requirement to maintain technological competence mirrors the ABA’s Model Rule 1.1, comment 8 that dozens of other states have adopted.
This is not the first time the California Bar has issued rules and guidance on the changing landscape of legal technology. For example, the State Bar of California Standing Committee on Professional Responsibility and Conduct issued formal opinion in 2016 stating that attorneys engaging in e-discovery should be proficient in nine specific tasks before engaging in any search. However, this is the first time the state has issued a broad requirement for all attorneys with respect to technology and competence.
As part of this duty to remain abreast of changes in legal technology, California does not have any specific requirements—yet. Other states have adopted similar wording in their model rules, and Florida requires its attorneys to incorporate three hours of technology related education materials into its MCLE program.
While California has not yet adopted any formal MCLE requirements as part of these revised model rules, practitioners in the state have offered some guidance on the matter. As a baseline, any attorney in the state should be proficient with the programs in Microsoft Office; should have the ability to convert any document to or from a pdf, jpg or other commonly used electronic file; and should be able to operate any of the commonly used email systems.
If an attorney is operating his or her own firm, he or she should be conversant enough with Information Technology (IT) and data privacy issues to be able to coordinate with an IT or privacy professional to set up a framework that ensures client information is secure. This includes setting up regular audits of the data in the firm’s system to determine if there have been any breaches or unauthorized disclosures of client information.
In addition, any law firm that advertises its services should be aware of California Rule of Professional Conduct 7.2. While this rule allows attorneys to advertise via “electronic means of communication, including public media,” these advertisements are subject to the same rules and restrictions as any other attorney communication or solicitation.
The California State Bar seems to be of the opinion that attorneys are in charge of educating themselves and staying up to date on technological developments in the legal world. The California State Bar website has set up an Ethics & Technology Resources link on its homepage, and that provides a basic framework that attorneys can use to build up their knowledge about legal technology issues.
The San Diego Bar offers its members an annual Law + Tech Summit to connect them with vendors that may be relevant to their interests, and the Alameda County Bar Association is in the process of setting up its own Legal Technology Summit in the coming months. Details will be forthcoming. Other than that, attorneys must find their own methods of staying current on these issues and ensuring that they are providing the best representation for their clients.
Upcoming trainings sponsored by the ACBA Technology and Practice Management Task Force
Why Solo/Small/Mid Size Firms Need IT Services – Virtual CIO, Privacy, Cybersecurity