Ride the Lightning

Michigan Becomes 37th State to Add the Duty of Technical Competence

September 23, 2019

Hat tip to Bob Ambrogi for keeping us all updated in a recent post.

Michigan is now the 37^th state to add the duty of technical competence. On September 18^th, the Michigan Supreme Court issued an order adopting a variation of Model Rule 1.1, Comment 8, of the American Bar Association's Model Rules of Professional Conduct.

The order amends the comments to Rule 1.1 of the Michigan Rules of Professional Conduct so that the paragraph on maintaining competence is as follows, with the addition shown in italics:

"Maintaining Competence. To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including the knowledge and skills regarding existing and developing technology that are reasonably necessary to provide competent representation for the client in a particular matter. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances."

While Michigan does not number the comments to its rules, this is similar to Comment 8 of the ABA model rule, but with a variation. The ABA version says:

"Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject."

In the order, the Michigan Supreme Court also amended its Rule 1.6, regarding the confidentiality of information, to add the following:

"Confidentiality of Information. When transmitting a communication that contains confidential and/or privileged information relating to the representation of a client, the lawyer should take reasonable measures and act competently so that the confidential and/or privileged client information will not be revealed to unintended third parties."

The Michigan amendments take effect on Jan. 1, 2020.

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
https://senseient.com
https://twitter.com/sharonnelsonesq
https://www.linkedin.com/in/sharondnelson
https://amazon.com/author/sharonnelson