Lex Blog Article: Why Technology Competency is an Ethical Obligation for Lawyers

Technology is shaping the practice of law and changing how legal services are being delivered. Formal Opinion 477R of the ABA recognizes the increasing impact of technology on the practice of law and the duty of lawyers to develop an understanding of that technology. Says an article on LexBlog

Since 1983, the ABA Model Rule of Professional Conduct 1.1 has read: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” However, in 2012 the ABA adopted amendments to the Model Rules, including updating the Comments to Rule 1.1 on lawyer technological competency.

Comment 8 to Rule 1.1 provides the following: “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 (…)” Thus, to provide competent representation to their clients, lawyers necessarily need to understand basic features of the relevant technology that affect the legal industry.

This change has been reflected in more than 30 states that have amended their rules of ethical conduct to include “technology competence” as a fundamental ethical duty. For example, Florida has a mandatory continuing legal education (CLE) requirement of three hours of technology every three years. However, three hours is a very short amount of time for lawyers to study the myriad of technologies that affect the legal profession.

Technology proficiency doesn’t mean you should only know how to use software such as Microsoft Office or Adobe Acrobat. According to the National Jurist, law firms are increasingly looking for lawyers with specialized skills to the practice of law, suggesting that data analytics, e-discovery, artificial intelligence, blockchain, and cybersecurity are the main areas of technology in which lawyers are expected to be competent.

Technology proficiency doesn’t mean that you need to be an expert or have an in-depth knowledge of every single technology that interacts with the legal profession. What technology proficiency means is that you should have the ability to think critically about the use of technology and how it can impact your clients.

It seems that every day some new terms and acronyms bubble up from the tech industry such as data mining, no-code software, net neutrality, 5G, UX (user experience), UI (user interface), SaaS (Software as a Service), DDoS (denial-of-service attack), etc. So, what does a lawyer really need to know about technology? Below is a series of reasonable technology skills and tools you should consider:

  • Legal analytics.
    1. Nearly every industry today relies on data. Legal analytics can help a law firm improve efficiency, gain insight, and receive higher value from available data. That could mean things like knowing the success rate of a specific motion or how much a settlement award could be. That’s why lawyers will have to understand how data can be collected, organized, and interpreted. In addition, lawyers should learn how to use legal analytics platforms like Lex Machina. Lex Machina provides legal analytics to law firms, enabling them to craft successful legal strategies, using a unique combination of machine learning, natural language processing, and human expert review. With this tool you can predict the behaviors and outcomes that different legal strategies will produce.
    1. Document automation. Compiling some legal documents can be tedious and repetitive. However, with the right approach, you can automate the creation of legal documents, without needing to know how to code. Document automation allows lawyers to dedicate more time to high-value substantive work while cutting the time spent drafting legal documents. Furthermore, the automation of legal documents enables law firms to improve performance by reducing errors, improving quality and speed. For example, there are excellent tools such as Documate. Documate is a document automation software that requires three simple steps to create legal documents. First, you need to select the legal document you want to automate and build your interview. Afterwards, you´ll have to upload your legal documents (in PDF or Word) and tag the blank fields to the answers in the interview. Finally, you can run the interview and assemble accurate legal documents.
    1. e-Discovery. Even if you are not a litigation attorney, there is a high probability you will come in contact with information in electronic formats ranging from email and Microsoft documents, to content from social media, instant messaging, and smartphone applications. Therefore, it’s essential to understand the basics of how to preserve, collect, review, and exchange information in electronic formats to use it as evidence. The mismanagement of digital evidence could harm your clients’ interests.
    1. e-Filing. Courts and governments are increasingly using automated systems to store legal documents such as pleadings, petitions, and general case files. Each jurisdiction may use different software, so it is beneficial for an attorney to become familiar with the relevant and applicable e-Filing systems.
  1. Workplace efficiency. Many legal tech tools are making mundane tasks like billing, email management, and time capture so much easier. ClioZERØRoss IntelligenceModusWorkstorm, and LegalInc are just a few examples. Law firms are progressively using more legal tech tools. Furthermore, lawyers should leverage technology to minimize monotonous tasks that aren’t an efficient use of time Thus, attorneys should understand those tools that can provide a competitive advantage in the market.

Law firms will expect attorneys have basic tech skills, and a lack of technical competence could constitute unethical conduct. However, tech skills are not obtained with a little “light studying.” While it may seem tedious and repetitive to learn these skills, technology proficiency will translate into a valuable asset for a law firm. Technological competence isn’t a simple CLE requirement: it is a fundamental building block of the contemporary legal industry.

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