Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.


The Intersection of Ethics and Technology

Recent technological advances in artificial intelligence present new problems for society, and, in turn, for lawyers.  Generally speaking, artificial intelligence describes the capacity of machines to perform the same complex cognitive functions as humans. 

The technology of AI has raced ahead at breakneck speed.  As researchers push the limits of what AI can do, no one seems to be asking what AI should do.  It’s hard to imagine a problem more difficult than developing a system that is intelligent – a ‘machine’ that can learn, but the ethics of AI are precisely that – a problem more difficult and trickier than developing the technology itself.

The legal profession is not immune from the advance of technology, and existing AI technologies have the potential to dramatically change the legal profession.[1]  More than simple document searches, new technologies such as Lex Machina guide litigation decisions by analyzing millions of pages of PACER data. Just as these technologies have created new ethical challenges for other industries, so too, the advance of technology raises ethical considerations for lawyers.  In this time of rapid advancement, the critical question is what are the ethical obligations for attorneys?

As lawyers we have an ongoing duty to keep abreast of technological developments.  Rule of Professional Conduct 3-110 states “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” (Calif. R. Prof. Conduct 3-110).  Competence is defined as the “(1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary to the performance of such service.”  (Calif. R. Prof. Conduct 3-110 (B)). A member without the requisite learning and skill may nonetheless undertake the representation if the member associates with another lawyer or “by acquiring sufficient learning and skill before performance is required.”  (Calif. R. Prof. Conduct 3-110 (C)).

The ABA Model Rules of Professional Conduct sets a similar standard for lawyer competence:  A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”  (ABA Model Rules of Prof. Conduct [MRPC] 1.1).

The comments to the Model Rules offer specific guidance regarding a lawyer’s professional obligation to remain informed about technological developments.  “[A] lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.…” [Emphasis added.] (Comment 8 to MRPC 1.1). 

The ABA House of delegates amended the standard of competence to include technology in 2012.  Since then, the majority of states have adopted the change.  As of late 2017, twenty-eight states adopted the amended language of Comment 8.[2] 

Although California has yet to adopt language that expressly includes competence in technology as part of attorney competence, there is good reason for attorneys to heed the call to technological competence.  The ABA Model Rules serve as a guide in the absence of direct California authority.  (City & County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal. 4th 839, 852; State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644).

Moreover, California ethics opinions suggest that the duty of competence includes technological competence.  For example, COPRAC Formal Opinion 2010-179 discussed the use of wireless networks.  The opinion noted that “attorneys have an ongoing responsibility of evaluating the level of security of technology that has increasingly become an indispensable tool in the practice of law.” (COPRAC Formal Opinion 2010-173). Another opinion, Formal Opinion 2015-19, which explained an attorney’s obligations in electronic discovery, included a reference to Comment 8 on Model Rule 1.1.  According to the opinion, attorneys must “[keep] abreast of changes in the law and its practice, including the benefits and risks associated with technology.”  (COPRAC Formal Opinion 2015-193).  The opinion concluded that attorneys must assess their understanding of e-discovery, and, if necessary, associate with an expert.  

[T]he duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide the client with competent representation.  If an attorney lacks such skills and/or resources, the attorney must try to acquire sufficient learning and skill, or associate or consult with someone with expertise to assist.  (COPRAC Formal Opinion 2015-193). 

Technological developments will undoubtedly advance faster than specific guidance from ethics authorities.  However, we can be assured of two things: first, technology will continue to advance, and second, an attorney’s standard of competence will evolve to keep pace with a changing society. 

The ethical standard does not require attorneys to know all of the new technologies, but instead, requires attorneys to know what they do not know, and to take steps to fill in the gaps in their knowledge when required to do so by a specific client engagement. 

— Timothy Casey is director of the STEPPS Program and professor in residence at California Western School of Law.


[1] Steve Lohr, A.I. Is Doing Legal Work. But It Won’t Replace Lawyers, Yet., New York Times, March 19, 2017, available at https://www.nytimes.com/2017/03/19/technology/lawyers-artificial-intelligence.html (last accessed on February 12, 2018).

[2] The states are: Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Nebraska, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**