Legal Tech Competency Is No Longer A Luxury

In the era before smartphones, lawyers could live disconnected lives. Work was left at work, and secretaries typically typed up briefs as they were verbally dictated. Clients who wanted to speak with their attorney to get an update on their case would call their office until someone answered, and computer issues at a law firm were handled by an “IT guy.”  Those days are long gone. In our current on-demand culture, attorneys are not only expected to be connected, but perhaps more importantly, they are also expected to be technologically competent.

Understanding and using practice-related technology is no longer a luxury for lawyers – it is also an ethical requirement. In 2012, the American Bar Association’s (ABA) House of Delegates amended Model Rule of Professional Conduct 1.1, Comment 8 to read as follows:

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.  

This amendment has subsequently been formally adopted by more than 30 states. While fairly vague, the intended message is clear – to be considered competent, lawyers need to understand the benefits and risks associated with relevant technology.

In 2016, Florida became the first state to require attorneys to participate in three hours of approved tech education in order to comply with their state bar’s Minimum Continuing Legal Education (MCLE) compliance requirement. In California, a formal opinion issued in 2015 regarding e-discovery concluded, in essence, that an attorney in a litigation matter should understand e-discovery and electronically stored information (ESI) or consult with an expert who does. Formal opinions issued by several other states in the last few years have analyzed cloud computing, essentially putting the owness on lawyers to ensure that any practice management cloud platform they use is adequately protecting confidential client data.

So, in practical terms, what does all of this mean? To what extent do lawyers need to understand ESI, AI, HTML, PDFs and a bunch of other acronyms?  The good news is that lawyers aren’t expected to be tech gurus, and there is no need for lawyers to spend hours learning the intricacies of writing code in order to properly practice law. For example, basic to intermediate proficiency with commonly used programs – like Outlook and the Microsoft Office Suite – is a given. Going one step further and learning to encrypt emails and Office documents is recommended.

Much of what is considered to be most important for lawyers from an ethical standpoint is really what is most important to clients – safeguarding their information and maximizing efficiencies to keep costs down.  There are myriad software programs and practice management platforms that manage and organize documents and information and are designed specifically for lawyers, with concerns about cybersecurity and efficiency in mind.

Expert opinions vary, but many consider tech competency for lawyers to include knowledge of e-discovery basics, including the preservation review and production of electronic information, the ability to conduct online internet research and using online research tools, and understanding and utilizing technologies that increase efficiency in scheduling, and communicating with and delivering information to clients.

Technology is evolving faster than the law and law practice can keep up with it at times, so staying on top of tech will undoubtedly continue to be a challenge for lawyers.  Fortunately, there is an abundance of resources available online to assist.

For lawyers looking to get a broader perspective of what is happening in law and tech, the ABA’s Legal Technology Resource Center provides articles and information on various areas of law and tech, and also offers monthly webinars.  There are also many lawyers-turned-bloggers who cover law practice and tech extensively. A few noteworthy bloggers who largely cover the intersection of law and tech include Bob Ambrogi (LawSites), Rick George (FutureLawyer), Allison Shields (Legal Ease Blog), and Kevin O’Keefe (Lexblog).  Above the Law, Lawyerist, 3 Geeks and a Law Blog, and other online publications/blogs also offer quality content on law and technology, and there are also many podcasts available through the Legal Talk Network.

Again, lawyers aren’t expected to be tech whizzes, but a baseline understanding of commonly used programs and the ability to use technology to be more efficient and communicative with clients is now an expectation of the profession.