When Dinosaurs Attack

Just when you think public officials couldn’t get any sillier, this report comes out of Franklin County, Washington: “Superior court judges in Washington state who disagreed with their clerk about transitioning from paper to electronic files and who ultimately appointed a special prosecutor to pursue civil claims against the clerk can’t do so with taxpayer funds, the state’s highest court ruled.” See Melissa H. Stanzione, “Judges Can’t Appoint Their Own Prosecutor in Spat with Clerk,” Bloomberg (Aug. 8, 2019) (behind an annoying paywall, sorry). Apparently the clerk “deemed it unnecessary” to incur the expense of maintaining duplicate paper files after implementing a paperless filing system. “The judges declared an emergency and issued an order directing clerks to keep paper files.” The clerk refused.

Good for the clerk. Typically, I’d now transition into making the case for electronic case filing–if it wasn’t so obvious.¹ Paper stinks. It’s bulky, inaccessible, unmanageable, unsearchable . . . you know the rest. Why these Jurassic judges don’t is baffling.

Lawyers have an “ethical” obligation to maintain technological competence. In 2012, the ABA adopted an amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” See ABA, Commission on Ethics 20/20 Resolution 105A (August 2012). Since then, at least twenty-seven states have officially adopted Comment 8 as part of their rules of professional conduct.

The ABA should adopt a similar revision to Rule 2.5 of its Model Code of Judicial Conduct. That rule provides that “[a] judge shall perform judicial and administrative duties, competently and diligently.” See ABA Model Code of Jud. Conduct r. 2.5(A). Unfortunately, the comments to this rule are silent on the issue of technology. A silence heard round Franklin County.