Robert Ambrogi Blog
In my continuing quest to track the states that have adopted the ethical duty of technology competence for lawyers, there is now another jurisdiction to add to the list: the District of Columbia.
On April 7, the District of Columbia Court of Appeals approved a variety of amendments to the Rules of Professional Conduct of the D.C. Bar. Among them was a change that incorporated technology within the meaning of competent lawyering. However, it did so in a way unlike the approach taken in other states.
Interestingly, this happened just days after the New Jersey Supreme Court declined to adopt the duty of technology competence.
Of the 40 states that have adopted the duty of technology competence, most have closely followed the language of the American Bar Association’s Model Rules of Professional Conduct.
What we generally refer to as the duty of technology competence was added to the Model Rules in 2012 as Comment 8 to Model Rule 1.1, pertaining to competence. The change was as follows, with the italicized phrase representing the relevant language:
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.
Although D.C.’s rules include the pre-2012 version of Comment 8, the new language approved by the Court of Appeals was not to that language, but rather to a different comment under Rule 1.1, Comment 5, pertaining to thoroughness and preparation. The change is as follows (again with the italicized phrase representing the added language):
Thoroughness and Preparation
Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods, procedures, and technology meeting the standards of competent practitioners. It also includes adequate preparation and continuing attention to the needs of the representation to assure that there is no neglect of such needs. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lessor consequences.
As you can see, the D.C. approach makes technology a component of a lawyer’s competent handling of “a particular matter.”
The court did not elaborate on why it chose to take this approach that differs from the ABA Model Rules. It made the change based on the recommendation of the District of Columbia Bar.
The bar, in the 2020 report by which it submitted its recommendations to the court, acknowledged the ABA’s recommended language, but was not explicit about why it recommended a different approach.
“The Rules Review Committee considered whether and how to incorporate a lawyer’s continuing responsibility to keep abreast of changes in technology as a matter of competence under the D.C. Rules,” the report said.
But after stating that the D.C. rule already requires a lawyer to provide competent representation to a client, and that competent representation “requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation,” the report said that the committee decided to address the issue through Comment 5.
“The Committee recommends that adding the words ‘procedures, and technology’ to existing D.C. Rule 1.1, Comment [5] would sufficiently address competence in keeping abreast of technological changes, i.e., cloud computing, as well as the requirement of certain courts to use technologies such as e-discovery and e-filing,” the bar’s report said.
The order from the D.C. Court of Appeals also approved a number of other amendments to D.C.’s professional conduct rules. The changes pertain to confidentiality, inadvertently sent information, outsourcing of legal work, and duties of prosecutors.
Read the court’s full order: NoR-284_24-ORDER_Adopting-Proposed-Changes-to-DC-Rules-of-Professional-Conduct_04-2025.