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.
