Some of the deepest thinkers on the topic think the answer is yes.

Innovation in the legal sector is primarily carrot driven—those who do it well enjoy greater commercial success.  But would the sector be better off if we went to the trouble of adding a stick (an ethical duty to innovate) to sanction those who fall too far behind?

I asked this question to three thought leaders who work at the forefront of the legal innovation space — Cat Moon, Ed Walters, and Bob Ambrogi — and somewhat surprisingly, all three say yes, offering rationales that are both passionate and persuasive.

Renee Knake Jefferson

Obviously, an ethical duty to innovate raises some difficult threshold issues related to scope and enforcement. Fortunately, a noted law professor has already done some of this foundational thinking. In her recent article, “Lawyer Ethics for Innovation,” 35 Notre Dame Journal of Law, Ethics & Public Policy 1 (2021),  Professor Renee Knake Jefferson articulates an affirmative, formal obligation of ethical innovation as a component of professional discipline and licensing rules.

Here, I paraphrase Knake Jefferson’s rationale:

Innovation outpaces law. A special mandate for every innovation is impractical. That strategy would be voluminous, reactionary, and inefficient — requiring constant retooling. Instead, we need a more enduring and simultaneously nimble solution. Instead of requiring the adoption or implementation of specific innovations, what we need is an ethical duty to continuously scan the market and assess innovations for both the potential benefits and harms for clients (as a duty to clients) and for access to and delivery of justice (as a duty to the profession and public).

Knake Jefferson explains, “Lawyers regularly exercise judgment about whether or not to adhere to precedent, or to forge new paths for changing law’s substance. That same sort of lawyerly calculation should apply to questions about innovation [in the delivery of legal advice and services].” Id at 35-36

Q: But, would revising the ABA Model Rules to include innovation have an impact in practice?

Caitlin Moon, Vanderbilt Law

According to Cat Moon, Director of Innovation Design, Program on Law & Innovation at Vanderbilt Law School, nothing about the status quo is working, as virtually every constituency is being underserved.

“I am rather skeptical at this point in my career (24 years in) vaguely stated ethical obligations that aren’t (and perhaps really can’t be) enforced will have any measurable impact.”  Here, Moon is referring to Comment 8 to Rule 1.1 (Competence) of the Model Rules of Professional Conduct, which was amended in 2012 to add the following italicized clause.

“[8]  To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

Although this change has now been adopted by 40 states, see LawSites Tech Competence, Moon comments, “I don’t observe that Comment 8 has any teeth.”

And indeed, she has a point.  The few enforcement examples are irrelevant to innovation. In one, a bankruptcy attorney was permanently suspended from practice for his inability to comply with electronic pleading requirements. See Knake Jefferson at 34 (citing State ex rel, Okla Bar Ass’n v. Oliver, 369 P3d 1074 (Okla 2016)).  In another, a judge resigned after being charged with administrative deficiencies for ignoring his email account for more than three years, among other computer system issues. See Dan M. Clark, “Western NY Judge Resigns Over Administrative, Tech Failures After 28 Years on Bench,”, Dec 13, 2018.  This represents the threshold for competence.

How the duty has played out doesn’t seem like something to cheer about.

For example, the recent Alex Jones’ incident, in which Mr. Jones’ attorney sent a copy of his phone and two years of text messages to the plaintiff’s counsel, has re-invigorated eDiscovery folks on technology competence — yet, the subtext is to hire them, not for counsel to become more learned. Articles on the incident emphasize that these mistakes are “avoidable, but common” and the real incompetence was in the attorney’s failure to request for return of the file.  See Isha Marathe, “Inadvertent Disclosure in Alex Jones Trial Leaves E-Discovery Experts Flabbergasted,”, Aug 4, 2022. Likewise, a recent Reuter’s write-up on the incident focused on the likely legal fallout, failing to address the lack of technical knowledge that created such a spectacular and consequential failure. Jacqueline Thomsen, “Alex Jones lawyer could face legal consequences for phone records release — expert,” Reuters, Aug 8, 2022.

Remarkably, even with this massive headlining blunder that has eDiscovery professionals “flabbergasted,” technology competence is not part of the conversation.  Perhaps it is because Comment 8 is geared to ensure competence in electronic court systems, Microsoft Office programs like Word documents, converting document file types, operating commonly used email systems, and to maintaining the security of client information. For example, California adopted the equivalent of Comment 8 in March of 2021. In response, an article by the Alameda County Bar Association reviewed what attorneys need to know to ensure competence — which is objectively not much at all.  See “What you need to know about the new rule of Professional Conduct on technology,” ACBA Blog, Apr 15, 2021.

In my view, Comment 8 is meant to ensure that attorneys who practiced before computers have kept pace with the ordinary tools of today’s practice. That’s it.

Q:  Comment 8 wasn’t a slam dunk. Would Jefferson’s proposals be similarly futile?

Comment 8 set a baseline of being able to function as a lawyer in legal systems on everyday, widespread technologies like Microsoft Word and Outlook.

A similar baseline for the proposed ethical duty to innovate is perhaps what’s already in place today. For example, litigators have eDiscovery leads and, through them, try to stay knowledgeable on advancements like TAR 1.0 vs. 2.0 (Technology-Assisted Review) while transactional lawyers have technology committee meetings to review the latest and greatest software and decide on investment, and in-house teams have their legal operations folks on all of it.

Ed Walters, Fastcase

As noted at the beginning of this post, commercial incentives likely drive these activities.  But according to Fastcase CEO Ed Walters, a faithful reading of the Model Rules encourages — perhaps mandates — them as well.

It’s not just the duty of (technological) competence that requires lawyers to adopt innovative tools. The Model Rules require diligence, thoroughness, and preparation. It requires that lawyers file in good faith claims and contentions that have merit. There are digital tools that help lawyers in each of those responsibilities, from e-discovery to legal research, brief analysis to what’s market.

The North Star of the Model Rules is to protect clients, and where software plays a major part in ensuring quality representation, the Model Rules demand that lawyers use that technology.

Indeed, this was one of the key points of Walter’s 2019 journal, article, “The Model Rules of Autonomous Conduct: Ethical Responsibilities of Lawyers and Artificial Intelligence,” 35 Ga St Univ L Rev 1073 (2019) (arguing that in many cases, Model Rules require lawyers to use software tools and artificial intelligence to augment their provision of legal services).

Notice, though, that this conversation revolves around assessing software options.  Perhaps Knake Jefferson’s formal obligation would broaden the scope of review — beyond practice-specific software and beyond technology, generally. That’s what I find compelling. Innovation is broader than software. Let’s formalize that.

Bob Ambrogi, Lawsites

On an ethical duty to innovate, lawyer, journalist, and entrepreneur Bob Ambrogi had quite to bit to say.

One thing I have learned in my career is never to take for granted that someone understands. The more direct and explicit you can be, the more certain that they will get the message. Even if a duty to innovate already exists, as I believe it does, an explicit rule would be a great leap forward for the profession and those we serve.

I would argue that the Model Rules, read literally, already implicitly include a duty to innovate. The very first sentence of the preamble to the Model Rules says that a lawyer has a “special responsibility for the quality of justice.” Such a responsibility must, by its very nature, encompass not just how the system is, but also how it can be better.

The preamble further says that a lawyer has a responsibility to “seek improvement” of the law, the legal system, the administration of justice, and the quality of legal services. Here again, implicit in seeking improvement is innovation. To innovate is to introduce new ideas or methods or products.

In fact, throughout the Model Rules — in a lawyer’s duty to zealously represent clients, to work to improve the legal system, to represent clients competently — can be found suggestions of a lawyer’s ongoing duty to improve and innovate, not just through technology, but also through how lawyers deliver their services and operate their businesses.

However, even given what is already in the Model Rules, Ambrogi concludes that he “would advocate for an explicit ethical duty to innovate.”  Ambrogi notes that when the ABA amended Comment 8 to Model Rule 1.1, the commission that recommended the change said the duty was already implicit in the Model Rules. Maybe so, but Ambrogi points out that the addition of explicit language got lawyers to pay attention.

Ambrogi continues, “Smart people will disagree over whether Comment 8 has had any meaningful impact, but I am of the belief that it has. While the impact was neither direct nor immediate, in the decade since the amendment, 40 states have adopted it, and lawyers are now well aware of at least the duty of technology competence, even if they do not fully understand its parameters.”

In other words, let’s make explicit what many of us already agree is implicit in our professional duties.  As Cat Moon puts it: “If we want to maintain our monopoly, lawyers should have an affirmative obligation to make law better, and in the 21st century this requires innovation. And I wish ours was a culture that lived this. But, alas, it is not.”  Moon points to ABA Resolution 402, in which the  largest professional association doubles down on the status quo of only lawyers owning an equity interest in law firms.

The legal community runs on documentation. We reaffirm existing policies to signal cultural cornerstones of the profession. Those of us in NewLaw would be smart to play the game.

Q:  A duty for the still nebulous term “innovation” seems risky, how would you manage scope?

Let’s turn to Knake Jefferson’s two-pronged proposal to review scope:

1. Duty to client

One part of ethical innovation as a duty is rooted in lawyer competence, a client-specific duty. The analogy here is to Comment 8. The proposal would formalize innovation competence in a similar manner to technology competence.

The critical difference here, though, is Jefferson’s proposal for assessment-based competence. The requirement is not for attorneys to be using particular tools, but rather be competent in the tools available. This is market awareness and vetting competence — a much broader and potentially more significant obligation.

I would argue that this duty to client would force tight alignment and coordination of an attorney with their Chief Innovation Officer in law firms, Legal Operations lead in-house, and leading associations for smaller practices that wouldn’t have the bandwidth themselves.

2. Duty to profession and the public

The second part of a duty of ethical innovation is grounded in a lawyer’s obligations to the profession and the public.

The Preamble to the Model Rules states that: “[A] lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” ¶ 6.

Jefferson recommends a revision to include an explicit mandate to engage in ethical innovation in a manner that fulfills the existing responsibilities to preserve justice as officers of the legal system and as public citizens. The analogy here is to ABA Model Rule 6.1’s affirmative obligation for pro bono services. The goal of formalizing this duty would be to raise awareness of the value of legal innovation and thereby increase the likelihood that a lawyer will participate.

This could have significant cultural implications. Making innovation a “noble” pursuit akin to pro bono would tap into the professional identity of lawyers. Let’s not underestimate the power that could hold.

Q:  How might you operationalize the new lawyer duty to assess innovations?

Here, I’ll admit I’m out on a limb.

Imagine if lawyers had a responsibility to assess the benefits and harms of an innovative category once it hits a particular point on Gartner’s annual Hype Cycle for Legal and Compliance Technologies — for example, no later than the plateau of productivity? See graphic below.

Source: Gartner 2021 [click on to enlarge]
This would force lawyers out of siloed thinking. For example, litigators would be expected to have a basic understanding of contract lifecycle management technologies. The cross-pollination of thinking, along the lines of “well that works over there, why couldn’t we do that here” would itself accelerate legal innovation.

I would then expand beyond software innovations. Imagine if there were similar charts for the adoption of new methodologies (ex. agile, lean, design), for new talent types (ex. data scientists, legal ops, consultants) with areas of deployment, and for new academic frameworks being used and fruitful for legal thinking (ex. Heidi Gardner’s collaboration research). At the very least, the ethical duty might prompt the profession to better aggregate and share resources that #MakeLawBetter.

Q: So, is proposing an ethical duty for legal innovation worth the effort?

A view of our future?

At first blush, it might seem that the impact of an affirmative ethical duty for lawyers to engage in innovation may not have any more impact than Comment 8 — i.e. more visibility and CLE offerings. I would argue, though, that Knake Jefferson’s recommendations could have a much more significant impact.

I would love to find out.