Does your law office have the right technology? Would you know if it didn’t?
Having appropriate technology for the tasks you do on a daily basis—and using that technology well—is an indisputable competitive advantage for law firms. But even if you’re not concerned about competing with other firms, you can’t skip technological competence: it’s an explicit ethical requirement in the majority of states and an implicit ethical mandate everywhere. Fortunately, there are ways to improve your technological chops—and to fill the gaps until you do.
Ethical Obligations Regarding Technology
The American Bar Association’s Model Rules of Professional Conduct now expressly address technology. Rule 1.1, Competence, requires that “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Under this definition, “skill” is a broad term, encompassing everything from oral communication and time-management skills to writing and—especially now—technological skills.
In case this wasn’t clear, Comment 8 notes that “[t]o 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.” Of course, the Model Rules are non-binding—but 36 states have followed their lead and adopted a duty of technological competence.
Even if your state hasn’t, you’re not off the hook. Technological competence has been called out as an ethical obligation not because it’s trendy but because it’s a requirement for appropriate client billing.
Would you bill for time you spent retyping a document because you didn’t know how to efficiently cut and paste text? Would you waste time starting a new contract from scratch because you didn’t know how to leverage your existing document library? Would you laboriously wade through a manual check of every aspect of your documents because you didn’t know how to use the automated tools at your disposal? These are all simple examples of inefficiencies that, in effect, would impermissibly pad your clients’ bills. As more complex and skilled technology becomes available, these examples are expanding.
In short, regardless of ethical rules, the time savings and better results afforded by legal technology make it unethical not to use it. But how do you catch up if you’ve fallen behind?
How to Expand Your Technological Knowledge and Meet Your Ethical Duties
Comment 2 to Rule 1.1, which explains how lawyers can gain competence in new areas of the law, is instructive. It notes that “A lawyer can provide adequate representation in a wholly novel field through necessary study [or] through the association of a lawyer of established competence in the field in question.” However, it skips an important preliminary step: that of defining the limits of your knowledge.
Know what you know—and what you don’t.
Lawyers, like everyone else, tend not to be comfortable with their own incompetence. But winging it or “faking it until you make it” do not work when it comes to complex technology. Artificial intelligence (AI) is a particularly thorny example; unfortunately, “legal prowess and good intent do not create a sufficient level of competence to effectively evaluate, operate, or measure the efficacy of [the] algorithmic tools” it uses.
Where you don’t know enough, fill in the gaps with a qualified partner.
When you need to use a technology that you’re not yet competent in—perhaps to expedite an overwhelming ediscovery production or analyze the likely outcomes of a major litigation matter—find a partner who can help. This might be another lawyer, a consulting expert, or even a vendor. Build your network of technology pros by attending conferences, joining local and online groups, and reaching out to vendors for information. But remember that you can’t entirely outsource technology; you’re the one who is ultimately responsible for using it correctly in your representation of a client.
Expand the limits of what you know.
Take the time to attend conferences, read blogs and articles, and watch webinars about useful legal tools and technologies. As another author put it, maintaining technological competence requires that a lawyer become “an informational omnivore with a sustained interest in technology as a fundamental building block of the contemporary world.”
There’s an important caveat here: don’t waste time learning about technologies you don’t need. If you’re truly behind, leave the technology-assisted review algorithms for another day and start with basic word-processing skills—including touch-typing—and document technologies.
You don’t have to settle for bare competence. With a realistic understanding of what you know and what you don’t, a healthy network of skilled technologists, and diligent study, you can exceed your ethical obligations regarding technology.