The American Bar Association and most state bars have added an ethical requirement for lawyers to be competent and knowledgeable regarding relevant technology. In 2012, the ABA adopted an amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” Since then, at least twenty-seven states have officially adopted Comment 8 or some version of it as part of their rules of professional conduct. It’s still a long slog; many lawyers, far too many, are limited to email and Google searches, and often aren’t sufficiently adept at either. There should be such a requirement in every jurisdiction, and the ABA language is far too vague and lenient.
Judges, however, often make lawyers look like cyber-whizzes. Here’s a ridiculous example from Franklin Country in Washington, where superior court judges disagreed with their clerk about transitioning from paper to electronic files. The clerk “deemed it unnecessary” to incur the expense of maintaining duplicate paper files after a paperless filing system was implemented . The judges declared an emergency (!) and issued an order directing clerks to keep paper files. One gutsy, probably soon to be unemployed clerk refused. The judges then appointed a special prosecutor to pursue civil claims against the clerk.
The state Supreme Court ruled that judges can’t appoint their own prosecutor with taxpayer funds.
While one can imagine some arguments for maintaining paper back-up files, this spat really does smell of judicial Luddism. Judges are infamously behind the times regarding technology, and usually by decades. They are older than lawyers on average; they rely on clerks for most tech-related activities. The judiciary is getting better, but there are pockets where judges are just as inclined to crack walnuts with a laptop as to use it as it was intended.
Federal courts have been using PACER and ECF systems years for for more than 30 years. The clerk is up to date on standard judicial practice; the judges in Franklin County are not. In his legal ethics blog, Prof. Dane S. Ciolino’s correctly observes that the ABA’s Model Code of Judicial Conduct, which provides that “[a] judge shall perform judicial and administrative duties, competently and diligently.” is silent on the issue of technology. So are almost all state judicial ethics codes.
This needs to be fixed.
Soon.
Ethics Alarms 
Considering that the federal courts are paperless, everything is done electronically, and the system works with few, if any, problems, I wonder why the Affordable Care Act’s websites never functioned properly. Could it be that the program was never intended to work?
jvb
I work in an unrelated field and I can tell you that there are other professions in which technology is becoming a huge factor in transmission and storage of information and that also involve people responsible for safeguarding information that are remarkably intransigent about learning to use said technology.
This goes way beyond using computers. Today’s evidence is often so dependent on technical knowledge that it is a joke that judges without science and/or engineering backgrounds are allowed to hear cases dependent on them. I am reminded of some pharmaceutical cases that just became jokes and the case that destroyed Digital Equipment Corporation. When I look at the judicial system, I sometimes think court cases should be decided by coin flip. At least we would then be honest about the ‘justice’ we are getting.
What protects against the easy falsifiability of electronic documents?
A good electronic records system isn’t easily falsified – my company is looking at one now that doesn’t allow so much as a typo correction without logging the change as a new version of the file and archiving the previous version (which can be seen but not edited without high – level permission). I’m sure there’s a way to falsify and cover your tracks but it’s not as simple as just editing a word document- and hard copies can be falsified with enough effort too.
Automatic backups. It would also be nice to teach End Users to actually USE the technology.
Checksums in an unrelated file directory are a older solution. The solution have become MUCH more complex since the 1970s.