I’ll get my soapbox moment out of the way early in this post: Rule 1.1’s duty of competence includes tech competence.
Now, here’s another area in which technology might impact the scope of the duty. The ABA Journal has this story about Voltaire, a tech company that developed software that “can search through billions of data points, including public records and social media posts, and—within a matter of minutes—pull up all kinds of information on prospective jurors.” Per the article, the company’s origins are in its CEO’s realization “that law firms didn’t do a very good job using technology to assist them in their cases.”
Hmm. Sounds familiar.
Anyhow, if you’re interested, check it out. Seems we’ve come a long way from the days of Gene Hackman’s use of technology as a jury consultant.
Voltaire interests me not only from the perspective of a lawyer’s duty of competence, but from a social media standpoint. Two years ago, I served on jury duty. Much to my chagrin, I wasn’t picked for a single case. I presume because the attorneys knew all they needed to know about me. Still, had they used Voltaire, what more would they have learned about me?
Anyway, I digress. Back to competence.
Rule 1.1 states that “[c]ompetent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” I am NOT saying that the duty of competence requires an attorney to use Voltaire (or a service like it) when picking a jury. At least not yet.
Someday, a client who loses at trial will ask their attorney why the attorney didn’t make use available technology. And that “ask” might be in the form of a disciplinary complaint or malpractice claim. Then, the question will become whether reasonably necessary thoroughness and preparation for a jury trial includes using a technology like Voltaire’s.