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Board endorses technology CLE

Senior Editor Regular News

Vision 2016

Board endorses technology CLE

Senior Editor

A three hour increase in the Bar’s CLE requirement, plus a new mandate to take technology-related CLE courses, has been approved by the Bar Board of Governors.

John Stewart The board, at its July 24 meeting in Coral Gables, also approved an amendment to a comment in Bar rules saying lawyers should have technological competence necessary to protect clients’ interests and necessary for their areas of practice.

Both the rule change and raising the CLE requirement were recommended by the Technology subgroup of the Vision 2016 commission.

The subgroup had recommended increasing the CLE requirement from 30 to 36 credits for each three-year reporting period, with the extra six credits being devoted to technology courses. The board instead approved raising the standard to 33 credits per three-year reporting period with the added three credits earmarked for technology.

“The general concept is whether or not we’re going to require technological competency as being part of your CLE requirement, and then whether we’re going increase the number of hours,” said board member John Stewart, who chairs the Technology subgroup.

Lawyers now have to be familiar with social media issues, e-discovery, e-filing, legal outsourcing, web-based conferences, cloud computing and record keeping, how electronic records are stored and secured, webinars, protecting their electronic communications with clients, and other issues, he said.

“That’s a short list of areas that infiltrate every single portion of every single person’s practice as it relates to the area of technology,” Stewart said. “That is why we have come to you with this proposed rule change that we need to increase the number of hours and we need to have a mandatory technology component.”

He noted it has been 30 years since the board first voted to recommend mandatory CLE for Bar members, and in that time the 30-hour-per-three-year standard has not changed.

“I defy anyone to tell me that in 30 years the practice of law has not become more complicated,” Stewart said. “A six-hour increase in CLE would be representative of the fact that the practice of law has become more complicated, whether or not you agree that technology has impacted that.”

He also repeated that 40 other states require more CLE than Florida and going to 36 hours would put Florida in the middle of other states.

In addition, Stewart said Bar figures show that 60 percent of Bar members are already meeting or surpassing the 36-hour standard. Since lawyers are not required to report hours once they reach the 30-hour mark in their reporting period, that number could be significantly higher, he said.

While the increase in hours would have Florida in the middle of other state bars, it would be the first to impose that some part of the requirement be devoted to technology matters.

Meeting that requirement shouldn’t be hard, Stewart said. He noted that the Bar’s Practice Resource Institute already has several free technology CLE courses available for members, and more are on the way. (Young Lawyers Division President Gordon Glover announced earlier in the meeting that the division is beginning a monthly series of free lunchtime online technology seminars.)

Some board members questioned whether it was necessary.

Board member Richard Nail said he sent an email to all Bar members in the 10th Circuit he represents, and the overwhelming response was against the proposal.

“I had [responses] from older lawyers and younger lawyers, from government lawyers, from assistant state attorneys all the way up to partners in major firms,” Nail said. “Younger lawyers say, ‘We already know this.’ The older lawyers say, ‘I hire people to do it.’ The point is the overwhelming majority said, ‘No, we don’t want to be required to do this.’”

He also said lawyers were concerned about the perception of requiring six hours for technology matters while only five hours are mandated for ethics, professionalism, and substance abuse courses. They were also worried about how it would affect lawyers already taking extra courses to qualify for board certification, he said.

“The overwhelming majority, young and old, said, ‘Why can’t you trust us to make the right decision on what we should take and what we should do and how we should do it?’” Nail said.

Board member Skip Campbell wondered if the proposed change was too broad.

“What concerns me is we’re requiring a lot of old farts like me to go back and become competent [in technology] when I have a lot of competent people around me,” he said.

Stewart said the Technology subgroup did not look at the ethics CLE requirement because that was outside its subject area. He argued the technology training was necessary because, without at least some exposure, lawyers would not have a grasp of basics they should know about available technology and how it affects the modern practice of law.

Board member Renée Thompson agreed.

“Merely because someone is proficient in using devices does not mean they understand the ethical implication of using those devices. I was shocked when I discovered that our [rental] copy machine kept a copy of everything we put on it [when it was returned to the vendor],” she said. “Those are things that lawyers need to understand on a very basic level.”

Noting the criticism the board had received over a proposal to allow motion by admission for out-of-state lawyers, board member Jack Hickey said, “Frankly, I think six hours is a bit much, and I think three hours. . . make it more palatable.”

The board rejected a motion to change the recommendation to requiring only three technology hours but increase the overall CLE requirement from 30 to 36 hours per three-year reporting cycle. The board then approved an amendment to the recommendation to increase the CLE requirement to 33 hours, instead of 36, with the extra three hours devoted to technology. Several board members dissented.

The board next approved the underlying motion as amended, again with several dissents.

The amendment must still go to the Supreme Court for review, and the higher requirement, if approved, will not take effect until lawyers start a new three-year reporting cycle.

The competence issue would add this language to the comment of Bar Rule 4-1.1: “Competent representation may also involve the association or retention of a non-lawyer advisor of established technological competence in the field in question. Competent representation also involves safeguarding confidential information relating to the representation, including, but not limited to, electronic transmissions and communications.”

The comment would also add language that lawyers should have “an understanding of the benefits and risks associated with the use of technology.”

Stewart said that was based on language in an ABA model rule and recognizes that technology “has changed the profession forever and is probably the largest driver not only of the profession but the world.”

He also said that court opinions are now recognizing that “technological competence is part of your responsibility as a practicing attorney” and one opinion said lawyers should be running a Google search on prospective jurors as part of voir dire.

The Bar also has two previous ethics opinions that basically provide the same thing as proposed in the rule amendment, Stewart said, and “both of those opinions effectively placed the responsibility on lawyers to have technological competence in the areas they addressed.”

Board member Bill Davis said the first sentence of the amendment was too specific in placing strictures on lawyers, but his motion to strike it was rejected by the board.

The board then approved the amendment as proposed on a voice vote with a few dissents. The proposal now goes to the Supreme Court.

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