Ride the Lightning

Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.

Hawaii Becomes 40th State to Adopt the Lawyer’s Duty of Technical Competence

March 29, 2022

LawSites reported on March 24 that Hawaii has become the 40th state to adopt the duty of technical competence.

Effective January 1, 2022, the state’s Rules of Professional Conduct were amended to revise Comment 6 to Rule 1.1, pertaining to competence, to add the duty of technology competence. The comment now reads:

Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education and keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. See comments [18] and [19] of Rule 1.6.

Hawaii’s Supreme Court adopted the revision by order dated August 18, 2021, effective January 1, 2022. The order also amended Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, Comment 2, to add the following boldface language regarding technology:

Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional Conduct. Reasonable efforts should include careful consideration of the use of technology and office resources connected to the internet, external data sources, and external vendors providing services relating to client data, and the use of client data.

Our friend Bob Ambrogi has done a terrific job of tracking the adoption of these technology competence rules. He has a great graphic here tracking all the states which have (and have not) adopted the duty of technical competence.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225, Fairfax, VA 22030
Email:   Phone: 703-359-0700
Digital Forensics/Cybersecurity/Information Technology
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