Should California Lawyers Have a Duty of "Compu-tence"?
LACBA Update, October 2013
By Andrew M. Vogel, Deputy Attorney General, Office of the Attorney General of the State of California, and member of LACBA’s Professional Responsibility and Ethics Committee (PREC). The views this article expresses are solely the author’s and do not necessarily reflect the views of the Attorney General’s Office or its clients, or of PREC.
Lawyers familiar with basic rules of professional responsibility know that their duties to clients include the duty of competence. On first blush, the import of this duty seems clear. Lawyers must bring to bear that level of legal knowledge, skill, experience, and ability necessary to represent a client effectively. But in the digital world in which lawyers now practice, should that duty extend to competence in using computer, mobile, and cloud-based technology to carry out the representation? While it might seem unthinkable to many (particularly younger) lawyers, some lawyers might not have learned—or never got around to learning—how to efficiently create and work with electronic documents, locate facts through online research, or manage electronic document management systems with the facility and speed clients increasingly expect. Should the duty of competence encompass such skills?
The duty of competence under California law is no mere suggestion. Rather, Rule of Professional Conduct 3-110 in no uncertain terms prohibits a lawyer from “intentionally, recklessly, or repeatedly fail[ing] to perform legal services with competence.”1 The rule states that “‘competence’ in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service. [Emphasis added.]”2 Additionally, California requires its lawyers not merely to act competently but to stay competent; the Business and Professions Code and Rules of Court codify lawyers’ obligation to complete approved continuing education.3
A violation of Rule 3-110 may subject an attorney to State Bar disciplinary proceedings.4 While violations of the Rules of Professional Conduct do not by themselves provide a basis for an attorney’s civil liability to a client,5 a legal malpractice claim based on a lawyer’s alleged failure to act competently will lie where an aggrieved client proves conduct similar to what Rule 3-110 prohibits: specifically, that the lawyer “failed to use ‘such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.’”6
California has not drawn a parallel between legal and technological competence. By contrast, the American Bar Association has recently taken this position. ABA Model Rule 1.1 states that “A lawyer shall provide competent representation to a client.” In language similar to Rule 3-110, Model Rule 1.1 goes on to state that “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” But the Model Rule then goes further. The Comments to Model Rule 1.1 were recently amended to state the following regarding “Maintaining Competence”: “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. [Emphasis added.]”7 California has not adopted the ABA Model Rules, but the Model Rules “may serve as guidelines absent on-point California authority or a conflicting state public policy.”8
Research for this article has turned up neither on-point California case law concerning whether a lawyer must maintain technological competence nor a California public policy that conflicts with Model Rule 1.1. To the contrary, the codification of now well-established state and federal rules of procedure governing e-discovery and the increasing use of e-filing procedures for briefs (optional in California’s Courts of Appeal9 and required in federal District Courts10) suggest that California has a policy entirely consistent with Model Rule 1.1.
Assuming for argument’s sake that California lawyers have a duty of technological competence, just how far should this duty extend? Specifically, should situations like the following constitute violations of such a duty?
1. A lawyer prepares a document electronically. The lawyer e-mails the document to the client for comment. The client communicates with the lawyer about the document—in confidence—by inputting comments directly into it. Lacking knowledge about how to remove such embedded information from the document in the word processing application, the lawyer then e-mails the document to an adversary’s lawyer with this information viewable by the recipient.11
2. A lawyer has a large volume of documents that have been imported into an e-discovery management system. The lawyer, lacking proficiency in using the system, fails to find a critical document that a more technologically proficient lawyer would easily have found. The document, if located, would have served as evidence for a case-dispositive argument in the client’s favor. Or, the document—which the client’s adversary did locate—demonstrates that an argument made on the client’s behalf was factually and legally frivolous.
3. A lawyer habitually relies on support staff to handle e-filing of pleadings in federal court using the ECF system. On a late evening, without staff available, the lawyer fails to use the ECF system properly and fails to file a critical pleading on time, thus prejudicing the client’s case.
4. A lawyer lacks access to investigative resources but has access to public records search functionality through commonly used legal research databases. But the lawyer fails to use that functionality to locate a critical witness who could testify to a case-dispositive issue.
The absence of authority on point leaves open the question of whether a lawyer could face discipline for violating Rule 3-110 or potential civil liability to the client in these situations. But let’s view these situations from a client’s perspective. Put in Rule 3-110’s terms, it seems safe to assume that a client hiring a lawyer in 2013 would expect the lawyer to have at least basic proficiency in those technologies that are “reasonably necessary for the performance” of the matter for which the client engages the lawyer (or to have supervisory authority over other lawyers who have such proficiency).12
To avoid pitfalls in this area, lawyers should give careful thought ahead of time to which types of technological resources they should become proficient in to carry out their engagements effectively and efficiently. In particular, the lawyer should evaluate which types of technological skills are “reasonably necessary” to perform these engagements. This analysis should take into account both the lawyer’s general practice areas and the needs of clients in specific matters as they arise. Lawyers also should not fall into the habit of simply making another, seemingly more “tech-savvy” lawyer or staff member the point person for all things technological. After all, Rule 3-110(C) provides that a lawyer who lacks the competence required to undertake a representation may “associate[e] with or, where appropriate, professionally consult another lawyer reasonably believed to be competent…”13 But “competent representation still requires knowing enough about the subject matter to be able to judge the quality of the attorney’s work.”14
Given the rapid rate of advancement in technology, the process of evaluating, obtaining and ensuring one’s technological competence is a continuing one. But it is one that is well worth adhering to.
1 Cal. R. of Prof'l Conduct R. 3-110(A).
2 Cal. R. of Prof'l Conduct R. 3-110(B).
3 Cal. Bus. & Prof. Code § 6070; Cal. R. of Ct. 9.31. Whether California’s CLE requirements should include some level of technological education presents an interesting question but one that is beyond the scope of this article.
4 See, e.g., BGJ Associates, LLC v. Wilson, 113 Cal. App. 4th 1217, 1227 (2003).
6 Camarillo v. Vaage, 105 Cal. App. 4th 552, 561 (2003) (citations omitted).
7 ABA Model R. of Prof'l Conduct R. 1.1, cmt. 8.
8 City and County of San Francisco v. Cobra Solutions, Inc., 38 Cal. 4th 839, 852 (2006) (citations omitted).
9 See, e.g., Second District Court of Appeal “Invitation to File E-Briefs,” http://www.courts.ca.gov/2dca-ebrief.htm.
10 See, e.g., U.S. District Court, Central District of California, “Electronic Filing and Case Management,” http://www.cacd.uscourts.gov/e-filing (explaining: “Pursuant to Local Rule 5-4.1 and Local Criminal Rule 49-1.1, electronic filing is mandatory in all civil and criminal cases in the Central District of California. All documents must be filed electronically unless exempted by Local Rule 5-4.2 or Local Criminal Rule 49-1.2.”) (emphasis in original).
11 The ethical obligations of lawyers to ensure the security of electronic technology used to transmit and store confidential client communications and information (as analyzed, for example, in State Bar of Cal., Formal Op. No. 2010-179) are beyond the scope of this article.
12 See Note 14, infra, regarding a lawyer’s duty to supervise other lawyers and assistants.
13 Cal. R. of Prof'l Conduct R. 3-110(C).
14 Cole v. Patricia A. Meyer & Associates, APC, 206 Cal. App. 4th 1095, 1117 (2012); see also Hu v. Fang, 104 Cal. App. 4th 61, 64 (2002) (“The attorney is the professional responsible for supervising the work of his or her legal assistants… ‘[E]ven though an attorney cannot be held responsible for every detail of office procedure, he must accept responsibility to supervise the work of his staff.’”) (citations omitted; brackets in original).
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at firstname.lastname@example.org