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Florida Leads the Way in Requiring Technology CLE – Let’s Hope Others Follow

New Requirements of Florida Bar CLE in Technology

Florida’s Supreme Court recently approved a proposal mandating that Florida Bar members complete three credit hours of continuing legal education in technology every three years, making it the first state bar to impose such a requirement on its attorneys. (See Florida Bar Rule 6-10.3 (Minimum Continuing Legal Education Standards).)

In addition to amending the rule regarding the number and type of CLE hours required, the Court also approved an amendment to Florida Bar Rule 4-1.1, which addresses attorney competence in technology. As the Court explained in its decision,

“The comment to rule 4-1.1 (Competence) is amended to add language providing that competent representation may involve a lawyer’s association with, or retention of, a non-lawyer advisor with established technological competence in the relevant field. Competent representation may also entail safeguarding confidential information related to the representation, including electronic transmissions and communications. Additionally, we add language to the comment providing that, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.”

Florida Bar CLE in Technology a RequirementThe actions of Florida’s Bar recognize the importance of technology in today’s practice of law, and the need for attorneys to achieve a baseline level of competence with technology. The underpinnings of the decision reach back to 2012, when  the American Bar Association formally approved a change to the Model Rules of Professional Conduct specifying that lawyers have not only the duty to be competent in the law and its practice, but in relevant technology as well. Specifically, Comment 8 to Model Rule 1.1 states:

Maintaining Competence

[8]  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.

Today, 25 states have incorporated these (or similar) comments into their rules of professional conduct—but so far only Florida has gone the distance to change its CLE requirements to require technology education.

Hopefully other states will follow suit (and quickly), given the potential consequences when lawyers lack the technology skills basic to their practice. For example, in June of this year a court pointed to a lawyer’s e-discovery process failings when it ordered default judgment against his client, the defendant insurer. Sell v. Country Life Insurance Co., 2016 WL 3179461 (D. Ariz. 2016).

In Sell, the court determined that the insurer’s in-house counsel failed to conduct a proper search for relevant information. Counsel represented that he undertook a “reasonable search” for responsive information related to the plaintiff’s document requests. However, that search was only limited to retrieving the plaintiff’s claim file. He made no effort to identity emails regarding other issues, like the insurer’s denial of the plaintiff’s insurance claim.  Counsel also had little, if any, knowledge regarding the company’s information retention system—including the sole repository the company had established to preserve emails subject to a litigation hold. The court ordered the search and retrieval of pertinent emails, but the order arrived too late to prevent much of their destruction. These failures, along with other discovery-related misconduct, ultimately led the court to enter default judgment.

The Sell decision, and others like it, serve as a warning to lawyers who do not understand technology and how it impacts their cases. Lack of technical knowledge is becoming unacceptable to state bars, courts, and clients. Ignorance of legal technology is NOT bliss.

Maureen O'Neill