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In 2012, the American Bar Association House of Delegates, based on the work of the ABA Commission on Ethics 20/20, amended the Model Rules of Professional Conduct (Model Rules) to include a new requirement concerning lawyer competence. The obligation, enacted as Comment 8 to existing Model Rule 1.1 (outlining a lawyer's requisite competence) (Rule 1.1), requires lawyers "keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology." To date, Comment 8 to Rule 1.1 (Comment 8 or the Comment) has been adopted in thirty-eight states, and has begun generating scholarship and debate as to its enforcement, efficacy, and extent. However, very little has been written regarding the requirements of Comment 8 on transactional lawyers. Nor have scholars considered how the increased efficiencies that might be fostered by Comment 8 could increase the marketability and reach of transactional lawyers to traditionally underrepresented groups, including entrepreneurs and small businesses. This Article will examine the potential benefits and risks of technology competence in transactional lawyering, provide workable guidelines for compliance in the quickly changing landscapes of legal technology and dealmaking, and propose that the ABA provide additional guidance.

Publication Citation

65 Villanova L. Rev. 159 (2020).