New Jersey is getting ready to become the next state to add a duty of technology competence to its professional ethics code. If adopted, this change will make it the forty-first state to acknowledge that lawyers need to keep up with technology.
The proposed updates to the New Jersey Rules of Professional Conduct include two main points. First, lawyers would need to earn at least one technology-related credit in their continuing legal education (CLE). Specifically, they would need to include topics like artificial intelligence, cybersecurity, and other emerging technologies in their learning.
A report from the New Jersey State Bar Association’s Task Force highlighted the importance of including technology training as part of a new “Ethics, Diversity, and Technology” requirement.
The second proposal suggests adding a comment to the rule about lawyer competence. This would encourage lawyers to stay informed about changes in legal practice and consider both the risks and benefits of technology. The proposed comment reads:
“To maintain competence, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”
This idea isn’t new. The American Bar Association (ABA) first introduced the concept of technology competence in 2012. Since then, many states have updated their ethics codes to reflect the importance of technology in law. Lawyers need to understand how tech can help and pose risks to their clients.
Hawaii was the last state to adopt this duty in 2021. It’s important to note that while 40 states are often cited for having this duty, many lawyers should already recognize their ethical responsibility to be tech-savvy, regardless of state law.
For example, Washington D.C. doesn’t mention technology competence in its professional ethics code. However, a recent ethics opinion stated that ignoring technology, including social media, can lead to ethical missteps for lawyers.
A useful resource for lawyers is “It’s 2024, Are You Technology Competent?” This article reviews various cases where lawyers failed to meet ethical standards while using technology. Issues range from electronic filing to security breaches involving confidential client information.
As for education, New Jersey wouldn’t be breaking new ground. States like Florida, North Carolina, and New York have already added technology training to their CLE requirements, focusing initially on cybersecurity before shifting towards artificial intelligence.
The Florida Bar recently released a guide on AI that explains popular technologies and potential ethical challenges. New Jersey courts are also considering AI’s impact on legal practice, sharing resources for lawyers and judges about the growing importance of technology.
In 2024, the New Jersey Supreme Court published guidelines on the use of artificial intelligence by lawyers, outlining ethical responsibilities when using generative AI tools.
Overall, the conversation around technology competence in law is ongoing, with various organizations aiming to educate lawyers about its implications. The comment period for New Jersey’s proposed revisions closed on December 20, and while comments may be made public, none have been released yet.
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