Should there be a duty of tech competence for judges? Survey raises questions

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The ABA added a duty of technology competence to the model ethics rules for lawyers in August 2012, but no such duty has been added to the model rules for judges.

So far, 36 states have adopted the technology competence rule, embodied in Comment 8 to Model Rule 1.1 of the ABA Model Rules of Professional Conduct, according to LawSites blogger Robert Ambrogi. It’s time to add that duty to the ABA Model Code of Judicial Conduct, Ambrogi argues in a column for Above the Law.

Ambrogi points to a 2019 survey of federal judges that asked whether they were satisfied with their knowledge of e-discovery rules and practices. Out of 260 judges who responded, more than two-thirds said they needed additional training.

E-discovery is one of myriad ways that judges’ responsibilities intersect with technology, Ambrogi writes. Judges sometimes decide cases that can include highly complex technology issues. They have to use technology and social media ethically in their own professional and personal lives, and they should understand the cultural and social implications of technology, he says.

Ambrogi acknowledges that the duty of tech competence could be encompassed by Rule 2.5 of the Model Code of Judicial Conduct. It reads: “A judge shall perform judicial and administrative duties, competently and diligently.” Some had made the same argument about the lawyer ethics rule before it was amended.

“Why leave it to inference?” Ambrogi writes. “Making it explicit would bring about the same sea change for judges as Rule 1.1, Comment 8, has done for lawyers.”

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