How would you rate your technology competence and the ability of your firm to use tech effectively?
An odd question, you might think. However, it’s one that you’re going to have to ask yourself more often as technological competence is becoming an increasingly important factor in deciding whether you as a lawyer can take on a case.
That’s because, four years ago this month, the American Bar Association (ABA) formally approved a change to its Model Rules of Professional Conduct that made it clear that lawyers have a duty to be competent not only in the law and its practice but also in technology.
Specifically, the ABA amended Comment 8 to Model Rule 1.1 to read:
“Maintaining Competence
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 technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
In short, it’s essential for modern legal professionals to maintain technology competence and be able to operate in today’s legal environment effectively.
But, what exactly does technology competence mean? That’s what we’ll be taking a look at in this article.
What does technology competence mean?
The rule is still new, so there are precious few opinions or pieces of formal guidance to help explain the answer to this question. There is some information out there, though.
eDiscovery
The California State Bar issued an ethics opinion in 2015 addressing eDiscovery competence. The opinion reasoned that “not every litigated case involves eDiscovery” but “almost every litigation matter potentially does. The chances are that a party or witness has used email or electronic communications, and/or has other forms of ESI related to the dispute.”
So, you can’t avoid having to handle and review ESI (that’s Electronically Stored Information, by the way). But what does it mean to be “competent” in eDiscovery? A recent analysis on the Above the Law blog of the California opinion noted that lawyers don’t personally need to be eDiscovery experts, but do need to know enough to supervise a case and find out when to outsource:
“You need to know enough about e-discovery to assess your capability to handle the issues that may arise and, if you lack sufficient capability, you can effectively “contract out” your competence to someone else. That someone else could be another attorney in your firm, an outside attorney, a vendor or even your client, the opinion says, provided the person has the necessary expertise. (You cannot, however, contract out your duty to supervise the case and protect your client’s confidentiality.)”
Electronic communications
The duty, however, extends beyond the management of particular cases to the entirety of your practice, including to the tools and software you use to operate your law office and manage matters and clients. That means it extends to a reasonable knowledge of secure electronic communications.
The ABA reasoned back in 1999 that it was acceptable for lawyers to communicate with clients via email given that it was no more insecure than regular mail. However, it has subsequently updated its guidance so that lawyers now need to have at least a basic understanding of how electronic communication works. In a 2011 opinion, the ABA wrote:
“Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.”
That means lawyers need to understand the ways in which email is insecure — for example, perhaps the client will only be able to access messages in a public place, such as a library. It also means knowing the circumstances in which encryption is necessary and how it works. Encryption is one of those important but technically daunting subjects that many lawyers would happily run a mile from. Fortunately, these days, it need not be complex. There’s an excellent introduction to encryption over on the ABA Journal website for those getting started.
Electronic filing and online case management
Now that more courts are adopting electronic filing and requiring electronic service of process, it’s vital that lawyers understand the different rules and procedures that apply to electronically- versus physically-delivered filings and, at the least, associate with a legal assistant or paralegal familiar with the court’s filing system.
Electronic filing need not be complicated. Systems, such as One Legal’s portal, make it as easy as filling in a few important case details and uploading your documents; technology competence in this regard can simply be having a reliable eFiling provider to use.
However, there are two areas you need to be aware of:
- First, documents must be formatted and prepared in a particular way — saved with optical character recognition applied so that they’re text searchable and with exhibits clearly bookmarked, for instance. You also need to be aware of the size of your file, since a file too large for the court’s system will likely be rejected.
- Second, different deadlines sometimes apply when documents have been electronically delivered as opposed to having been mailed or hand-delivered. It’s important that you’re familiar with the relevant sections of the civil procedure rules and clear about when your documents have been sent electronically.
Virtual law practice
The ability to conduct legal work remotely and provide virtual legal services has become increasingly important, especially in light of global events that have prompted a shift toward remote work. Familiarity with virtual law practice tools and platforms is essential.
Running a virtual law firm is crucial in today’s legal landscape for its adaptability, cost savings, and global reach. The ability to operate remotely showcases resilience during unforeseen events and provides flexibility for attorneys and staff, contributing to improved work-life balance. Virtual law firms leverage advanced collaboration tools, enhancing communication and teamwork. Since the pandemic, it’s become essential for most firms as many attorneys now join courtrooms virtually.
This model offers client convenience, allowing accessibility without physical travel. Scalability, technological efficiency, and a reduced environmental impact are additional benefits.
Proficiency in legal technology tools ensures efficiency. Staying informed about regulatory changes is essential for compliance. Operating a virtual law firm provides a competitive advantage by offering modern, flexible legal services that meet evolving client and industry needs.
Continuing education
Given the rapid evolution of legal technology, ongoing education and training are crucial. Legal professionals should actively seek out opportunities for professional development and training in new technologies relevant to their practice areas.
Online Continuing Legal Education (CLE) is crucial for modern legal professionals due to its accessibility, cost-efficiency, and flexibility. Attorneys benefit from a diverse range of courses, tailored to their practice areas, with the convenience of self-paced learning. Online platforms provide timely updates, ensuring attorneys stay abreast of evolving legal landscapes.
Interactive tools enhance engagement and knowledge retention. Moreover, online CLE simplifies recordkeeping, helping attorneys track and comply with mandatory CLE requirements. The global reach of online CLE has improved inclusivity, connecting legal professionals all over the country.
Online CLE is instrumental in facilitating continuous professional development and allowing legal pros to adapt to the changing demands through several avenues of learning. For example, One Legal and InfoTrack hosted our online conference, LegalUp in April 2023, offering CLE credit to professionals across the country, thanks only to advances in technology.
Ethical considerations
Legal professionals must also be mindful of the ethical considerations surrounding the use of technology, including client confidentiality, data security, and compliance with relevant regulations.
Ethical considerations are paramount for law firms embracing modern technology. Upholding client confidentiality is crucial, necessitating robust cybersecurity measures to prevent unauthorized access or data breaches. Adherence to data protection laws is essential to safeguard client privacy. Obtaining informed consent, ensuring competence through ongoing training, and addressing biases in technology-assisted decision-making are key ethical obligations.
Law firms must employ ethical screening processes to manage conflicts of interest arising from technology use. Ethical communication standards apply to online interactions, reinforcing the importance of integrity in digital communications.
Compliance with regulatory frameworks governing legal tech is imperative, contributing to responsible and lawful practices. Ultimately, ethical considerations are fundamental to maintaining client trust, upholding the legal profession’s reputation, and ensuring the equitable and responsible use of technology in legal practice.
Document automation
Legal documents are a fundamental part of legal practice. Knowledge of document automation tools allows legal professionals to create, edit, and manage documents more efficiently. It ensures consistency and reduces the risk of errors.
Automation is indispensable for law firms, driving efficiency, accuracy, and overall productivity. By streamlining repetitive tasks, such as document drafting and case management, automation saves time and reduces operational costs. This technology enhances accuracy and consistency, minimizing the risk of human error in tasks like document creation and data entry.
Automated processes improve client services through faster communication and case updates. Document management and assembly are simplified, and legal research is accelerated with automated tools. Automation aids compliance and risk management by tracking legal requirements and identifying potential risks. It streamlines billing, financial management, and internal workflows, optimizing overall productivity.
Finally, automation ensures data security and privacy compliance, which is crucial in maintaining client confidentiality. Law firms embracing automation gain a competitive advantage, adapt more readily to remote work, and achieve scalability as their operations grow. Ultimately, automation is transformative, making legal processes more efficient, client-focused, and adaptable to the demands of the modern legal landscape.
Cybersecurity awareness
Speaking of data security, legal professionals handle sensitive and confidential information. Awareness of cybersecurity best practices is crucial to protect client data and maintain client trust. This includes understanding secure communication methods and safeguarding against cyber threats.
Is this really anything new?
If you’re in one of the 29 states that haven’t yet adopted the ABA’s model rule, you might be tempted to sit back and relax.
Aside from that being a highly questionable business decision, given the efficiencies that legal technology can bring, it’s also not likely to fly with the existing ethics rules. Those rules of competence require that a lawyer possess the “skill” reasonably necessary for representation.
Given the increasingly widespread adoption of mandatory electronic filing and service via email and the ubiquity of electronic communications, the days when a lawyer could avoid technology altogether are long gone.
Conclusion
Technology competence is not an abstract consideration but a fundamental aspect of legal practice for legal professionals today. The American Bar Association’s amendment to the Model Rules of Professional Conduct underscores the obligation for lawyers to be technologically competent.
As the legal tech environment continues to change, proficiency in areas such as eDiscovery, electronic communications, virtual law practice, document automation, online CLE, and cybersecurity awareness becomes imperative.
Ignoring the importance of technological competence is not only a potential ethical violation but also a strategic disadvantage.
The legal profession’s increasing reliance on technology demands that legal professionals stay informed, adapt to new tools, and integrate them into their practice.
Whether it’s embracing virtual law firms for adaptability or leveraging automation for efficiency, the technology competence of legal professionals is integral to meeting client expectations, maintaining ethical standards, and thriving in the contemporary legal environment.
