Ride the Lightning

Time to Require Tech Competence of Judges?

May 8, 2019

Bob Ambrogi had an interesting post in Above the Law on May 6th about extending the duty of tech competence to judges. As Bob notes, in 2012, the American Bar Association revised the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology.

The ABA amended Comment 8 to Model Rule 1.1, which pertains to competence, to say that lawyers have a responsibility to keep abreast of changes in law and practice, “including the benefits and risks associated with relevant technology.” 36 states have thus far adopted that model rule.

Just as there is a model code of conduct for lawyers, there is a corollary model code of conduct for judges. That code, however, contains no parallel duty of technology competence for judges. Most states also have codes of judicial conduct. None of those state codes, as far as Bob could determine, explicitly require technological competence for judges. He asks, "Why not?"

The rationale for requiring tech competence of lawyers is that technology permeates every aspect of law practice. A lawyer cannot effectively practice law these days without using technology, and a lawyer cannot effectively represent clients without understanding the technologies the clients use.

The same holds true for judges. Just as technology permeates law practice, it permeates the work of judges. Court operations, court dockets, and even the courtrooms themselves are increasingly driven by technology. And the issues judges must rule on in those courtrooms — both substantive and evidentiary — increasingly implicate matters of technology.

Bob offers a list of the ways in which a judge’s responsibilities intersect with technology:

• Oversight of the use of courtroom presentation and recording technology;
• Ruling on issues of evidence and discovery involving digital sources;
• Deciding cases involving issues of technology — sometimes highly complex issues;
• Understanding the cultural and sociological implications of technology; and
• Ethically using technology and social media in their own professional and personal lives.

How many judges really understand the eDiscovery issues that they are routinely required to rule on?

The 2019 judges survey conducted by Exterro and EDRM at Duke Law asked federal judges whether they are satisfied with their level of knowledge of eDiscovery technology and practices. Of the 260 judges who responded, less than a third said they require no additional training or education. The rest said they needed either additional training or extensive training.

The survey also asked whether federal judges in general should receive more training and education on eDiscovery technology or practices. Seventy percent said they should receive more training, and another 8 percent said there should be “extensive increases” in training for judges. There appears to be no similar survey regarding general judicial competence with technology.

Recently, a judge in New York resigned while facing formal charges by the New York State Commission on Judicial Conduct related to technological incompetence. Among other things, the judge was charged with failing for more than three years to monitor his official court email account or respond to emails sent to that account and failing for more than a year to activate or use a computer and software provided to him by the Office of Court Administration for financial and case administration.

Now that's a doozy of a story that underscores Bob's point!

In the Model Code of Judicial Conduct, the corollary to Model Rule 1.1 on competence is Rule 2.5, which says, “A judge shall perform judicial and administrative duties, competently and diligently.” The comment to Rule 2.5 elaborates:

Competence in the performance of judicial duties requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform a judge’s responsibilities of judicial office.

This comment seems to encompass some degree of technological competence:

Today, this includes competence to assess the quality of Internet legal research, the ability to properly determine use of court e-mail systems to communicate with attorneys and parties, and the ability to evaluate possible social media stalking in a domestic violence matter.

Historically, there were some who argued that Rule 1.1 encompassed technological competence even before the 2012 revision of Comment 8 made it explicit. But it was the act of making it explicit that brought about a major change in lawyers’ perceptions of what is expected of them.

The same likely would be true for judges. Perhaps some degree of technological competence can be inferred from Rule 2.5. But why leave it to inference? Why not mandate it as we did for lawyers?

Bob says that the time has come for there to be an explicit duty for judges to be technologically competent, just as there is already for lawyers. I agree completely. We have seen more than our fair share of judicial incompetence when it comes to e-discovery and an understanding of digital forensics. If judges are to perform their duties competently, they need to up their game when it comes to technology competence.

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