Calloquy: ABA Model Rules of Professional Conduct: The Need for Emphasis on Technical Diligence


Extract from Calloquy’s article “ABA Model Rules of Professional Conduct: The Need for Emphasis on Technical Diligence”

The rapidly evolving landscape of technology and cyber threats presents new challenges for legal professionals in safeguarding client information and maintaining ethical standards. As the legal profession grapples with these complexities, it becomes increasingly clear that the American Bar Association (ABA) Model Rules of Professional Conduct should be amended to reflect the heightened responsibilities and considerations demanded by the digital age. In this article, we delve into key provisions, opinions, and developments that underscore the urgency of amending the ABA Model Rules, ensuring that legal practitioners can navigate the digital frontier while upholding their ethical obligations.

The Technology Provision in Comment 8 to Rule 1.1

The ABA Model Rules have long been a cornerstone of ethical guidance for attorneys. Rule 1.1, emphasizing competence, states that a lawyer should provide competent representation, requiring the legal knowledge, skill, thoroughness, and preparation necessary for the representation. Comment 8 to this rule, introduced in 2012, acknowledges that a lawyer’s duty of competence extends to technology.

Incorporating technology competence into the Model Rules marked a significant step towards addressing the digital transformation in the legal profession. However, given the rapid pace of technological advancement, it is imperative to revisit and enhance this provision to better address emerging challenges such as data breaches, cybersecurity, and digital communication.

Competence no longer suffices. Today’s digital age requires diligence.

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