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.