The Continuing Duty

Competence is not a credential a lawyer earns once. Model Rule 1.1 requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,” and the measuring stick is the representation itself.¹ Every representation happens on a particular date, so the question is whether the lawyer had what this matter required on the day the work was done. Admission to the bar shows readiness as of admission, and a strong record on similar matters ten years ago shows readiness as of then. Neither answers the rule’s question. That is why the earlier discussion of unfamiliar matters told the lawyer to close any knowledge gap before performing the work.

The law moves faster than any one lawyer’s memory of it. Legislatures amend statutes, courts narrow or overrule their own decisions, procedural rules are rewritten, and the tools for finding, storing, and exchanging information keep changing. A lawyer who relies on what was true years ago may advise under a rule that no longer exists or miss one that now controls. The client cannot detect that decay, for the same reason the client cannot judge the quality of the work in the first place. Only the lawyer can monitor the changes, so the duty to keep current falls on the lawyer.

This unit takes the duty in two steps. The first subsection covers what the Comment to Rule 1.1 asks of every lawyer in every field. The second covers technology, where the pace of change has made the duty most visible and most often tested. When a stem describes a lawyer who was fully qualified at admission but handled a current matter with outdated knowledge, the stem is testing this duty, and the lawyer’s earlier qualification does not answer it.

Keeping Up With the Law

Comment [8] to Rule 1.1 turns the continuing duty into three directions. A lawyer “should keep abreast of changes in the law and its practice,” should “engage in continuing study and education,” and should “comply with all continuing legal education requirements to which the lawyer is subject.”² Each direction names a different thing. The first states what the lawyer must know when the work is done: the law as it now stands and the way it is now applied. The second states how the lawyer gets there, through study that runs the length of a career and does not end with the bar examination. The third points to the formal conditions a jurisdiction attaches to the license. Rule 1.1 itself sets no number of hours. The hours come from each jurisdiction’s separate rules, while the duty to be current comes from the competence standard.

The professional system leans on each lawyer to do this work. Accounts of what makes law a profession list maintenance of competence among the supporting elements, beside autonomy and self-regulation.³ Connick v. Thompson shows the same assumption from outside the profession. The Court explained why a district attorney may rely on prosecutors’ professional training and ethical obligations: prosecutors are ethically bound to know what Brady requires and to research the law when they are uncertain, and professional training does not end at graduation, because most jurisdictions require attorneys to satisfy continuing-education requirements.⁴ The passage describes the profession and decides nothing about what Rule 1.1 demands. Cite it for how lawyers are expected to keep themselves current, and not as a competence holding.

Continuing legal education, or CLE, is the formal mechanism. Most jurisdictions require attorneys to complete it, and even the few that impose no mandatory hours require competent representation and encourage continuing study and education.⁵ The absence of an hours rule therefore leaves the competence duty intact. The duty applies everywhere, and a lawyer whose knowledge has gone stale can fall short of it with or without a CLE mandate. Enforcement belongs to the courts: in every jurisdiction the highest court holds the ultimate authority to discipline attorneys, with sanctions ranging from reprimand to disbarment.⁶ The next section separates that disciplinary exposure from malpractice liability.

Because the CLE requirement and the competence duty ask different questions, a lawyer can meet one and miss the other. CLE asks whether the lawyer completed a countable amount of approved education within a reporting cycle. Competence asks whether, on this matter and on the day of the work, the lawyer’s knowledge reflected current law and practice. A lawyer who fills the hours with courses far from the client’s problem satisfies the first and can still fail the second. A lawyer who reads every amendment but ignores the credit requirement meets the second and breaks the third direction in the Comment. The duty reaches past hours logged to whether the lawyer actually kept up.

Courts also assess competence matter by matter. A Medicaid fraud decision makes the point for experience: the required experience could include previous involvement with the same or similar kinds of cases, and on an individual evaluation a general criminal law practitioner might not be qualified to handle a particular Medicaid fraud case, or any, and should decline the representation.⁷ A general credential or a general practice area therefore does not settle the question. What counts is whether this lawyer is ready for this matter, so keeping up has to be aimed at the work the lawyer actually takes on.

The continuing duty also has a layer above the rule. Rule 1.1 says a lawyer “shall provide competent representation,”⁸ while the Preamble says a lawyer “should strive to attain the highest level of skill.”⁹ The verbs mark the difference: the first sets a floor, and the second states an ideal. A statement of professional attributes carries the same aspiration when it lists undertaking continuing professional self-development, including continuing reflection to learn from experience.¹⁰ A lawyer who studies beyond what a matter strictly requires is acting on the ideal. The rule itself demands only what this matter reasonably requires.

Two traps recur on the exam. One treats years of experience as proof of current knowledge, and the other treats logged CLE hours as proof of competence. Each mistakes a proxy for the standard.

The two lawyers differ in what each did between admission and the matter at hand. Hargrove’s experience was gathered under a rule that no longer existed, so it said nothing about the rule that controlled. Dalton’s check tied her advice to the law as it stood on the day she gave it.

Technological Competence

Since 2012, the Comment on maintaining competence has told lawyers to keep abreast of changes in the law and its practice “including the benefits and risks associated with relevant technology.”¹² The phrase attaches to the continuing duty from the previous subsection, and it works through the rule’s standard of the knowledge and skill reasonably necessary for the representation.¹³ A lawyer who must keep up with the law must therefore also keep up with the tools through which the law is now practiced.

Where the change sits matters for the exam. The language of the rule itself was not amended; the 2012 change went into the Comment, which now specifically requires counsel to understand the issues raised by developments in technology.¹⁴ The rule text carries the standard, and the Comment supplies its application to technology. At least 39 states have adopted the ABA’s change or acknowledged its importance in advisory and formal ethics opinions.¹⁵ California, which does not follow the Model Rules, has recognized the same duty in ethics opinions, and the State Bar’s Standing Committee on Professional Responsibility and Conduct wrote that “rules and procedures, when placed in conjunction with ever-changing technology, produce professional challenges that attorneys must meet in order to remain competent.”¹⁶ A stem that asks which text carries the technology duty is asking about the Comment. An answer claiming the rule was rewritten to add a new sentence is wrong.

Much of what a lawyer handles now exists only in electronic form, and its risks are invisible to someone who does not understand the systems involved. In any given case the issues may include safeguarding privilege when sending email or producing documents, discovery from social media sites, information stored in the cloud, the risks of mobile devices, data security, disclosure of metadata, and advanced tools such as technology-assisted review, or TAR, in preserving and producing requested information.¹⁷ Metadata is the hidden information a file carries about itself, so a lawyer who sends a document without knowing that information exists may disclose more than intended. TAR uses software trained on lawyers’ relevance calls to sort a large collection of documents, so a lawyer who does not understand how it works cannot tell whether a search was reliable. These failures are silent. Hidden conditions trouble the law in other fields too; one Arizona appeal asked whether the seller of a house must disclose past termite infestation to the buyer.¹⁸ A privilege waiver or a data leak is a hidden condition of the same kind. A lawyer can waive privilege, miss relevant information, or expose confidential data without noticing that anything has gone wrong, and the client cannot notice either.

The standard is basic. The 2012 change does not require attorneys to become experts in technology, but it does suggest that lawyers need at least a basic level of competency with new and emerging technologies, which arguably includes familiarity with common social media platforms.¹⁹ The word relevant ties the duty to the matter, as the competence standard is tied to the matter generally. A lawyer who drafts wills has little occasion to learn how a litigation hold works on a corporate email server. A litigator whose case turns on a client’s phone records and cloud storage has every occasion. The question is what the technology in this matter reasonably requires the lawyer to understand, and the rule does not ask for fluency in every system.

Womack v. Yeoman, discussed earlier as a verification failure, shows the cost of lacking even a rudimentary grasp of how common platforms work. Plaintiff’s counsel in a motor-vehicle case alleging a traumatic brain injury apparently was unaware of the privacy settings that social media platforms offer. He took at face value what his client and her sister told him about their accounts, and he had not researched the Stored Communications Act, the federal statute that regulates how providers release user information. When defense counsel produced photographs and text postings, he assumed hacking and moved for sanctions. The court overruled the motion, found that defense counsel had done diligent and thorough research, and ordered plaintiff’s counsel to pay the costs.²⁰ Had he better understood social media and how it works, he would arguably have been less inclined to request sanctions and accuse another attorney of hacking into his client’s account.²¹ He did not need to be a platform engineer to avoid that outcome. He needed to know that accounts carry privacy settings and to read the governing statute before accusing a colleague. Defense counsel shows the other side of the line: because counsel understood the platforms, the investigation of the opposing party’s online presence counted as legitimate research.

Electronic discovery is the second place the duty gets tested. ESI, or electronically stored information, is the data a case may require parties to find and produce. The commentary is blunt: competence may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI, and an attorney lacking the required competence for e-discovery issues has three options. The attorney may acquire sufficient learning and skill before performance is required, associate with or consult technical consultants or competent counsel, or decline the representation.²² These are the same routes taught earlier for unfamiliar matters, now applied to a gap in technical knowledge. When the help is another lawyer from outside the firm, Comments 6 and 7 add conditions. The lawyer should obtain the client’s informed consent and believe that the other lawyer’s services will contribute to competent representation, and the lawyers should consult with each other and the client about the scope of their respective representation and the allocation of responsibility between them.²³

The lawyer who leaves the gap open fails the standard. Proceeding on general experience while the relevant data sits in systems the lawyer cannot describe does not meet the duty, because even a highly experienced attorney may need help in a matter involving electronic information.²⁴ Seniority does not substitute for understanding the technology. The gap also touches another duty, since lack of competence in e-discovery issues may lead to an ethical violation of the duty of confidentiality.²⁵ A lawyer who cannot tell whether client data in the cloud is secure may expose it without knowing, so the gap is both a competence problem and a confidentiality problem.