I’ve been struck by the increasing number of authorities emphasizing the importance of lawyers’ technological competence. In my view, the takeaway lesson is that lawyers and law schools ignore changes in this area at their peril.
As many readers know, the ABA Commission on Ethics 20/20 proposed – and the ABA adopted – an amendment to what is now Comment  to Model Rule 1.1. The new language, which emphasizes the importance of keeping abreast of technological change, is underlined below:
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.
The meaning of this new language will evolve over time as ethics opinions and other authorities address it, but it is becoming clear that a lawyer’s failure to use technology properly will be an increasingly common source of discipline or other sanction. For example, an Iowa lawyer was recently disciplined for subjecting his clients to a financial scam that could have been easily uncovered with a simple Internet search. In Massachusetts, a lawyer was disciplined for failing to take appropriate steps to comply with a court order regarding the preservation of digital evidence. In New York, Section 202.12(b) of the Uniform Civil Rules for the Supreme Court and the County Court mandates that lawyers handling cases involving electronic discovery “must be sufficiently versed in matters relating to their clients' technological systems to discuss competently all issues relating to electronic discovery.” (Thanks to Roy Simon for the pointer.) Additional authorities can be found in this excellent post, which explores a variety of ethics issues arising from "Luddite lawyers." (Alas, I wasn't the first to come up with the alliteration.)
There is also evidence that, even if a lawyer can avoid discipline, technological incompetence may hurt a lawyer’s ability to retain clients. For instance, a corporate counsel at Kia Motors America (Casey Flaherty) recently began conducting legal technology audits of outside counsel to ensure that they are making efficient and effective use of available technology. He found that they aren't. On average, tasks that lawyers should be able to perform in an hour took them five, and Casey has penalized some of these firms for their inefficiency. (Casey has partnered with my law school (Suffolk University Law School) to automate the audit so that it can be used widely throughout the legal industry.)
In my view, law schools have a special responsibility to educate students about these developments. The current generation of law students may be very good at texting and social media, but they are not particularly familiar with the kind of technology that lawyers regularly need to employ in practice, such as word processing, working with PDFs, creating and manipulating spreadsheets, etc. They are also largely clueless about the innovations transforming the legal industry, such as legal project management, knowledge management, automated document assembly, expert systems, law practice management tools, cost-effective electronic discovery, and the appropriate use of social media for marketing and investigations. A few law schools have responded to these changes, such as Michigan State and my own law school (Suffolk -- see here and here), but many more need to follow.
In the end, the seemingly minor change to a Comment to Model Rule 1.1 reflects an important shift in thinking about competent lawyering in a digital age. Technology is transforming the delivery of legal and law-related services, and lawyers who fail to keep abreast of new developments may suffer through an increased likelihood of discipline or an inability to compete effectively in the legal marketplace. And law schools that fail to prepare their students for these changes are doing their students (and their future employers and clients) a disservice.