Competence & Malpractice · 6-12% of the exam
11.1.2Maintaining Competence: Technology and Continuing Education (Rule 1.1)
Why
Competence is not achieved once and held forever. Law changes and the tools of practice evolve with it. A lawyer who fails to track developments in law or technology can develop a gap even after years of adequate practice, and the gap is measured prospectively, not by past track record.
Plain English
Comment [8] says a lawyer should do three things to maintain the requisite knowledge and skill:
- 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.
The same modal — "should" — governs all three. The currency expectation is substantive and runs independently of any credit-hour scheme.
Rule 1.1 — Technology and Currency (Comment)
Comment [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.
One modal, "should," carries all three limbs.
Example 1
Ex. 1
Elena handled all client communications through unencrypted email over public Wi-Fi hotspots, a method she had used for a decade without incident. Farid, a forensics expert retained by opposing counsel, confirmed that intercepting such email required only widely available tools. Elena testified she was unaware that encrypted communications had become standard professional practice.
Elena has a competence problem under Rule 1.1: Comment [8] says a lawyer should understand the benefits and risks of relevant technology, and the black letter's knowledge, skill, thoroughness and preparation reach the tools she actually used, to the extent reasonably necessary for the representation. She used a communication tool in her representations without understanding its security risks. A decade without incident doesn't answer the question; what Comment [8] asks is that she understand the benefits and risks of the technology actually used, not merely to avoid harm that hasn't yet materialized. Weigh what Elena knew about the tool, and the ten quiet years drop out of the question.
Trap
Tip
Questions · 1
Q 01ch11-e05
Question 1 of 1 · Rule 1.1
Attorney moved every client file to a consumer file-sharing service so that documents could be reached from anywhere. The default setting made any file reachable by anyone holding its link, and the service's own support page said so on the first screen. A colleague warned Attorney twice that links to litigation folders were circulating outside the office and that offices in the area used access controls as a matter of course. Attorney kept the default, saying the arrangement had worked for six years without a single misused file. Attorney had never read anything about how the service handled access, though every continuing legal education requirement the state imposed had been met. No file was in fact exposed. Is Attorney subject to discipline?
Keys 1 to 4 choose.