Final week, the Puerto Rico Supreme Court docket got here out with a way more reasonable and impactful definition of a lawyer’s technological competence obligations than that promulgated by some 40 states. The Puerto Rican rules are a stronger assertion about competence and counsel why it’s so vital.
The State tech competency obligations are all based mostly on a Remark of the American Bar Affiliation to the Rule 1.1 Mannequin Competency Rule. Generally, the remark gives that legal professionals ought to maintain abreast of the dangers and advantages of related know-how.
The remark, which was written in 2012 when know-how was far much less pervasive, is hampered by squishy language like “ought to” (not should) and “related.” Its affect is additional blunted by the truth that it’s only a remark, not a rule. Higher than nothing, however somewhat weak, particularly within the age of AI (extra on that in a minute).
The Puerto Rico Competency Rule
Here’s what the current Puerto Rican Supreme Court docket Rule says about technological competence:
Individuals working towards regulation should purchase the required expertise and keep an inexpensive data of technological developments which will affect authorized apply and notarial capabilities. This consists of the obligation to make use of know-how diligently and with consciousness of its advantages and dangers to be able to present competent and efficient authorized illustration or notarial providers.
Word that not like Remark 8, the Puerto Rico Rule makes use of the phrase should. (Within the U.S., solely West Virginia has adopted the phrase should as a substitute of ought to.) And it doesn’t depend on the idea of relevance (which lets legal professionals argue that tech will not be related if the lawyer doesn’t use it) however on reasonableness. It additionally highlights the necessity to diligently use know-how and pay attention to the dangers and advantages. Little doubt this can be a stronger model the ABA ought to take into account.
The Puerto Rico Feedback to the Rule additionally present further concerns. They describe know-how as an “indispensable software” and emphasize its dynamic nature. Competence, based on the feedback, means fairly understanding a software’s capabilities, advantages, limitations, and dangers; verifying the accuracy of its output; and sustaining unbiased skilled judgment. Lastly, the feedback spotlight that technological diligence means utilizing tech instruments in a well timed and accountable manner with out inflicting pointless delays or hurt.
It’s a stronger, extra grounded rule. However its actual energy lies in what it implies: that tech competence isn’t simply one other checkbox — it’s now foundational to how we fulfill each moral obligation we’ve got.
The Significance of Technological Competence
The Puerto Rico Rule is best than our Remark in a lot of methods. It underscores the truth that understanding the advantages and dangers of know-how immediately is the bedrock of moral compliance typically. Sure, it’s vital to grasp the duty to maintain consumer confidences. However know-how is so pervasive in so some ways, it’s onerous to see how a lawyer can guarantee confidentiality with out understanding issues just like the cloud or the dangers of on prem digital internet hosting. The identical with communications. The identical with supervision. So, realizing the advantages and dangers (or maybe, higher put, understanding why it’s essential perceive the advantages and dangers) is vital. These legal professionals who quote hallucinated circumstances? They erred in not understanding the technological shortcuts they have been utilizing.
Moral Valuation of Authorized Service
However recognizing the moral significance of tech competence isn’t sufficient. If we wish legal professionals to really do it, the foundations and incentives — particularly round how we invoice — must catch up.
Even below Puerto Rico’s stronger rule, it’s onerous to see how compliance will get meaningfully enforced with out one thing extra. Are bar associations or courts actually going to sanction a lawyer for being tech-ignorant when the foundations are peppered with phrases like “ought to,” “related,” and “affordable”? Most likely not, aside from excessive circumstances. So maybe as a substitute of counting on self-discipline, we must be fascinated about easy methods to incentivize tech competence in different methods.
Each the ABA and Puerto Rican moral guidelines emphasize that authorized charges have to be “affordable.” Traditionally, the occupation has interpreted that to solely imply how a lot time was spent. ABA Rule 1.5, for instance, prohibits “unreasonable” charges and lists time and labor because the very first consider figuring out reasonableness. There are different elements however for many of the occupation the very first thing anybody asks when evaluating worth is, “How a lot time did it take?” The Puerto Rico rule goes a step additional, insisting that legal professionals solely invoice for time really spent on a matter.
However the extra vital query sooner or later is how, and for what, legal professionals will invoice. Synthetic intelligence now lets us do in seconds what used to take hours. For corporations that also cling to the billable hour mannequin, that is unsettling territory. The occupation is already grappling with what AI means for that mannequin and for the way authorized providers must be valued. Unique reliance on time-based billing could now not make sense.
But, the occupation’s fixation on time as the one willpower of worth will create issues when the time to finish duties is considerably lowered, particularly now that the general public understands simply how briskly AI can get issues finished. It’s inevitable that we’ll see moral complaints and even malpractice claims in opposition to legal professionals who fail to make use of tech effectively. We have to rewrite the foundations to mirror a brand new actuality: sooner or later, worth received’t be completely measured in hours.
Rule makers have an actual alternative right here to information the occupation and redefine what an moral and honest price is now and, sooner or later, shall be. However it all begins with understanding the advantages and dangers of know-how, which is another excuse why defining that obligation is so key.
Backside Line
Puerto Rico’s rule is an enchancment. However the deeper problem is aligning our guidelines, ethics, and enterprise fashions with the technological actuality.
Remark 8 was written manner again in 2012 when know-how was not almost as pervasive and impactful. It’s time for a change.
Stephen Embry is a lawyer, speaker, blogger and author. He publishes TechLaw Crossroads, a weblog dedicated to the examination of the strain between know-how, the regulation, and the apply of regulation.
