Most lawyers know the duty of technology competence exists. Fewer can say what it requires on a Tuesday afternoon when a client forwards three hundred screenshots, opposing counsel asks for messages “in native format,” and the hearing is on video. This guide turns the duty into specific skills, a way to assess your team, and a practical plan to close the gaps.
It is written for litigation teams: attorneys who carry the duty, and the paralegals and staff who do much of the technical work under their supervision. The ABA Model Rules are the reference point here. Your state’s version of the rules, and any technology CLE requirement your state imposes, are what actually apply, so confirm both.
What does the duty of technology competence say?
Comment 8 to ABA Model Rule 1.1, added in 2012, says that maintaining competence includes keeping abreast of “the benefits and risks associated with relevant technology.” It is part of the general duty of competence, not a separate rule, and the standard is reasonableness rather than expertise.
Many states have adopted a version of the comment, and some have added technology-focused continuing education hours. Three features of the duty shape how firms should approach it:
- It is tied to the work. “Relevant technology” depends on your practice. A family law team’s relevant technology includes phone message exports and co-parenting apps; a construction litigator’s includes project management systems and email archives.
- It covers risks as well as benefits. Knowing how to use a tool includes knowing how it can leak data, alter files or produce wrong output.
- It keeps moving. The word “abreast” implies ongoing learning. ABA Formal Opinion 512 applied the same reasoning to generative AI in 2024.
What does technology competence look like in litigation?
In practice, it means someone on the team can handle each of the recurring technical tasks in your matters correctly, and the responsible lawyer understands enough to supervise and to spot when something is wrong. The map below is a baseline for litigation teams.
| Area | Baseline competence | Warning sign |
|---|---|---|
| Preservation and ESI discovery | Issue holds, discuss ESI at the Rule 26(f) conference, understand Rule 37(e) risk for lost electronic information | Preservation is a single sentence in the engagement letter |
| Text, chat and social media evidence | Know the difference between native exports and screenshots, and what metadata each keeps | Every message exhibit is a phone screenshot |
| Metadata and file integrity | Explain what a hash value shows and why originals stay untouched | Files are renamed or edited in place before anyone records what arrived |
| PDFs and redaction | Apply true redaction and verify that hidden text is gone | Black rectangles drawn over text |
| Confidential communication | Choose secure channels for sensitive files, as Rule 1.6(c) expects | Client evidence arrives by personal email and lives in inboxes |
| Remote hearings and electronic exhibits | Share exhibits on screen, follow the court’s electronic exhibit procedures | The first test of screen sharing is during the hearing |
| Generative AI | Understand the tool’s limits, verify output, protect client information | No firm policy, but staff use AI tools anyway |
Two areas deserve their own study: ESI scoping (see ESI discovery for small firms) and redaction, which fails in ways that are invisible on screen (see redacting exhibits and personal identifiers).
Can you meet the duty by relying on someone else?
Yes, within limits. The Model Rules recognize that a lawyer can achieve competence through study or by associating with someone who has the needed expertise, which includes forensic examiners, e-discovery consultants, IT providers and capable staff.
The limit is supervision. You need enough understanding to choose the right help, ask the right questions and recognize a wrong answer. Rule 5.3 makes lawyers responsible for reasonable efforts to ensure that nonlawyer assistance, including outside vendors and services, is consistent with the lawyer’s obligations. A useful test: could you explain to the court, in plain language, how the evidence was collected and why it is complete? If not, you are relying on someone you cannot yet supervise.
How do you assess your team’s technology competence?
Ask whether someone on the team can do each of these today, correctly, without searching for instructions:
- Export a complete text message thread from an iPhone and from an Android phone, with dates, times and participants.
- Explain what a SHA-256 hash value is and record one for an incoming file.
- Produce documents in the form agreed in an ESI protocol, with Bates numbers and an index.
- Redact a PDF and prove the redacted text cannot be searched or copied.
- Receive sensitive evidence from a client without it passing through personal email or text.
- Run a remote hearing with exhibits shared cleanly and a backup plan if the connection fails.
- Explain the firm’s AI policy, including what client information may go into which tools.
- Identify where the firm’s data lives, who can access it, and how to export it if you change vendors.
Each “no” or “only one person can” is a gap. Single points of failure count: if one paralegal is the only person who can build a message log, competence goes on vacation whenever that person does.
Questions the supervising attorney should be able to answer
The lawyer does not need to perform every task, but should be able to answer these without calling the person who did:
- Where did this evidence come from, and how do we know it is complete for the period that matters?
- Has anything been altered since it arrived, and how would we show that it was not?
- Which outside services or AI tools touched client information on this matter, and on what terms?
- What did we agree to produce, in what form, and does the production match that agreement?
- If the hearing technology fails, what is the backup plan for exhibits?
If any answer is “I would have to ask,” that is not a failure by itself. It is a sign that the answer should be written down in the matter file where the lawyer can find it.
A 90-day plan to close the gaps
Close gaps in the order your matters actually encounter them, not alphabetically by technology.
- Weeks 1–2: inventory. List the recurring technical tasks from your last ten matters and score each against the checklist above.
- Weeks 3–4: write procedures. For the three highest-risk gaps, write short step-by-step procedures with screenshots, owned by a named person.
- Month 2: train on real material. Use a closed matter or a test data set. Have each person perform the task, not just watch a demonstration.
- Month 3: test and adjust. Run the procedures on a live matter with a second person checking the result, then fix what was unclear.
- Ongoing: update on change. Any new tool, court system or export format triggers a procedure review.
Tools can lower the skill floor for some tasks. Converting raw exports into a paginated, Bates-numbered log is a good example: software that auto-detects common export formats and normalizes them into one chronological record (see how message export conversion works) means a new team member can produce a consistent result without memorizing each format. For the wider picture of which tools a small litigation practice needs, see the small-firm legal tech stack.
What happens when technology competence falls short?
The consequences are usually practical before they are disciplinary, and they land on the client first. Courts and bars look at the facts of each situation, so the list below describes risks, not predictions.
- Lost evidence. A phone is replaced before messages are preserved, and Rule 37(e) or a state counterpart comes into play.
- Exposed information. A bad redaction reveals account numbers or a child’s identifying details.
- Privilege problems. A careless production includes communications with counsel.
- Exhibit trouble. Screenshots lack dates or context, and foundation becomes a fight. Presenting them also takes skill; see presenting electronic exhibits in court and on video.
- Write-offs. Hours spent fighting tools are hard to bill and harder to justify.
Technology competence is not a certificate; it is a habit of noticing what your matters require and making sure someone on the team can handle it. If you are unsure how your state’s version of Rule 1.1 or its CLE rules apply to you, your state bar’s ethics resources or a licensed ethics attorney where you practice can answer that directly.
