Last
week,
the
Puerto
Rico
Supreme
Court
came
out
with
a
much
more
realistic
and
impactful
definition
of
a
lawyer’s
technological
competence
obligations
than
that
promulgated
by
some
40
states.
The
Puerto
Rican
rules
are
a
stronger
statement
about
competence
and
suggest
why
it
is
so
important.
The
State
tech
competency
obligations
are
all
based
on
a
Comment
of
the
American
Bar
Association
to
the
Rule
1.1
Model
Competency
Rule.
In
general,
the
comment
provides
that
lawyers
should
keep
abreast
of
the
risks
and
benefits
of
relevant
technology.
The
comment,
which
was
written
in
2012
when
technology
was
far
less
pervasive,
is
hampered
by
squishy
language
like
“should”
(not
must)
and
“relevant.”
Its
impact
is
further
blunted
by
the
fact
that
it’s
just
a
comment,
not
a
rule.
Better
than
nothing,
but
a
little
weak,
especially
in
the
age
of
AI
(more
on
that
in
a
minute).
The
Puerto
Rico
Competency
Rule
Here
is
what
the
recent
Puerto
Rican
Supreme
Court
Rule
says
about
technological
competence:
Persons
practicing
law
must
acquire
the
necessary
skills
and
maintain
a
reasonable
knowledge
of
technological
developments
that
may
impact
legal
practice
and
notarial
functions.
This
includes
the
duty
to
use
technology
diligently
and
with
awareness
of
its
benefits
and
risks
in
order
to
provide
competent
and
effective
legal
representation
or
notarial
services.
Note
that
unlike
Comment
8,
the
Puerto
Rico
Rule
uses
the
word
must.
(In
the
U.S.,
only
West
Virginia
has
adopted
the
word
must
instead
of
should.)
And
it
does
not
rely
on
the
concept
of
relevance
(which
lets
lawyers
argue
that
tech
is
not
relevant
if
the
lawyer
doesn’t
use
it)
but
on
reasonableness.
It
also
highlights
the
need
to
diligently
use
technology
and
be
aware
of
the
risks
and
benefits.
No
doubt
this
is
a
stronger
version
the
ABA
should
consider.
The
Puerto
Rico
Comments
to
the
Rule
also
provide
additional
considerations.
They
describe
technology
as
an
“indispensable
tool”
and
emphasize
its
dynamic
nature.
Competence,
according
to
the
comments,
means
reasonably
understanding
a
tool’s
capabilities,
benefits,
limitations,
and
risks;
verifying
the
accuracy
of
its
output;
and
maintaining
independent
professional
judgment.
Finally,
the
comments
highlight
that
technological
diligence
means
using
tech
tools
in
a
timely
and
responsible
way
without
causing
unnecessary
delays
or
harm.
It’s
a
stronger,
more
grounded
rule.
But
its
real
power
lies
in
what
it
implies:
that
tech
competence
isn’t
just
another
checkbox
—
it’s
now
foundational
to
how
we
fulfill
every
ethical
duty
we
have.
The
Importance
of
Technological
Competence
The
Puerto
Rico
Rule
is
better
than
our
Comment
in
a
number
of
ways.
It
underscores
the
fact
that
understanding
the
benefits
and
risks
of
technology
today
is
the
bedrock
of
ethical
compliance
in
general.
Yes,
it’s
important
to
understand
the
obligation
to
keep
client
confidences.
But
technology
is
so
pervasive
in
so
many
ways,
it’s
hard
to
see
how
a
lawyer
can
ensure
confidentiality
without
understanding
things
like
the
cloud
or
the
risks
of
on
prem
digital
hosting.
The
same
with
communications.
The
same
with
supervision.
So,
knowing
the
benefits
and
risks
(or
perhaps,
better
put,
understanding
why
you
need
to
understand
the
benefits
and
risks)
is
critical.
Those
lawyers
who
quote
hallucinated
cases?
They
erred
in
not
understanding
the
technological
shortcuts
they
were
using.
Ethical
Valuation
of
Legal
Service
But
recognizing
the
ethical
importance
of
tech
competence
isn’t
enough.
If
we
want
lawyers
to
actually do it,
the
rules
and
incentives
—
especially
around
how
we
bill
—
need
to
catch
up.
Even
under
Puerto
Rico’s
stronger
rule,
it’s
hard
to
see
how
compliance
gets
meaningfully
enforced
without
something
more.
Are
bar
associations
or
courts
really
going
to
sanction
a
lawyer
for
being
tech-ignorant
when
the
rules
are
peppered
with
words
like
“should,”
“relevant,”
and
“reasonable”?
Probably
not,
except
for
extreme
cases.
So
perhaps
instead
of
relying
on
discipline,
we
should
be
thinking
about
how
to
incentivize
tech
competence
in
other
ways.
Both
the
ABA
and
Puerto
Rican
ethical
rules
emphasize
that
legal
fees
must
be
“reasonable.”
Historically,
the
profession
has
interpreted
that
to
solely
mean
how
much
time
was
spent.
ABA
Rule
1.5,
for
example,
prohibits
“unreasonable”
fees
and
lists
time
and
labor
as
the
very
first
factor
in
determining
reasonableness.
There
are
other
factors
but
for
most
of
the
profession
the
first
thing
anyone
asks
when
evaluating
value
is,
“How
much
time
did
it
take?”
The
Puerto
Rico
rule
goes
a
step
further,
insisting
that
lawyers
only
bill
for
time
actually
spent
on
a
matter.
But
the
more
important
question
in
the
future
is
how,
and
for
what,
lawyers
will
bill.
Artificial
intelligence
now
lets
us
do
in
seconds
what
used
to
take
hours.
For
firms
that
still
cling
to
the
billable
hour
model,
this
is
unsettling
territory.
The
profession
is
already
grappling
with
what
AI
means
for
that
model
and
for
how
legal
services
should
be
valued.
Exclusive
reliance
on
time-based
billing
may
no
longer
make
sense.
Yet,
the
profession’s
fixation
on
time
as
the
only
determination
of
value
will
create
problems
when
the
time
to
complete
tasks
is
substantially
reduced,
especially
now
that
the
public
understands
just
how
fast
AI
can
get
things
done.
It’s
inevitable
that
we
will
see
ethical
complaints
or
even
malpractice
claims
against
lawyers
who
fail
to
use
tech
efficiently.
We
need
to
rewrite
the
rules
to
reflect
a
new
reality:
in
the
future,
value
won’t
be
exclusively
measured
in
hours.
Rule
makers
have
a
real
opportunity
here
to
guide
the
profession
and
redefine
what
an
ethical
and
fair
fee
is
now
and,
in
the
future,
will
be.
But
it
all
starts
with
understanding
the
benefits
and
risks
of
technology,
which
is
another
reason
why
defining
that
obligation
is
so
key.
Bottom
Line
Puerto
Rico’s
rule
is
an
improvement.
But
the
deeper
challenge
is
aligning
our
rules,
ethics,
and
business
models
with
the
technological
reality.
Comment
8
was
written
way
back
in
2012
when
technology
was
not
nearly
as
pervasive
and
impactful.
It’s
time
for
a
change.
Stephen
Embry
is
a
lawyer,
speaker,
blogger
and
writer.
He
publishes TechLaw
Crossroads,
a
blog
devoted
to
the
examination
of
the
tension
between
technology,
the
law,
and
the
practice
of
law.