Another State Adopts Duty Of Tech Competence — This Time With A Twist

Oklahoma this week became the latest state to adopt the duty of technology competence for lawyers. According to my ongoing tally, that brings the number of states that have adopted the duty to 24.

The Supreme Court of Oklahoma adopted the change on Monday, to be effective immediately, in an order amending several of the state’s Rules of Professional Conduct.

Interestingly, the Oklahoma language varies in a way that raises a question in my mind about how it should be interpreted.

Most states have adopted Comment 8 to ABA Model Rule 1.1 verbatim. It reads:

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.)

Oklahoma’s version, which is Comment 6 to its Rule 1.1, says:

Maintaining Competence.

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject, including the benefits and risks associated with relevant technology. (Emphasis added.)

As you can see, the clause regarding tech competence is exactly the same. But the placement of it is different. And the placement makes it appear to modify the clause before it, so that it seems to say that the benefits and risk language pertains only to complying with continuing legal education requirements. Put another way, it seems to say that the tech competence requirement is subsumed under the duty to “comply with all continuing legal education requirements.”

Two readings are possible. Either the change was meant to create a broad duty to maintain competence in technology or it was meant to limit the duty to one included in a lawyer’s CLE requirements. If the former, then I think this was not drafted clearly. If the latter, then it is a lesser duty than other states have adopted.

Read about all those other states in my original post.