“Professed technological incompetence is not an excuse for discovery misconduct” is not a court holding you want to see (James v. Nat’l Fin. LLC, No. CV 8931-VCL, 2014 WL 6845560 (Del. Ch. Dec. 5, 2014)). In today’s legal profession, lawyers must be technologically competent. This is reinforced by ABA Model Rule of Professional Conduct 1.1 and Comment 8. Currently, most states have created the duty of technology competency by adopting some form of Model Rule 1.1 and/or Comment 8. Law schools have a duty to maintain a rigorous program of legal education and enable students to develop their professional identity. Law schools also have an ethical obligation to train technology competency skills and offer basic technology training in required first-year legal practice courses and upper-level legal technology courses.
As Ferris Bueller states, “Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.” In case you didn’t know, our profession is moving forward technologically with a fully computer-based exam to assess whether candidates for bar admission have competency beyond doctrine. Examinees will be required to perform the activities typically required of a newly licensed lawyer. The National Conference of Bar Examiners has announced that the next generation of the bar exam will debut in 2026. The Next Gen Bar Exam will test necessary legal practice skills such as client counseling and advising, negotiation and dispute resolution, and client relationships and management.
In 2012, the ABA acknowledged that technology competency is a critical skill in the evolving nature of law practice when it passed Comment 8 of Model Rule of Professional Responsibility 1.1. D. Casey Flaherty also demonstrated through his technology audit that technology competency is a critical legal skill for practice that many attorneys do not possess. He hypothesized that “lawyers in general are woefully deficient in using the software tools at their disposal – e.g., Word, Acrobat, Excel.”
This shouldn’t be a surprise to anyone. Jim Calloway, Management Assistance Program Director of the Oklahoma Bar Association, has expressed the need for technology know-how in the profession for over 20 years. He encouraged attorneys to know enough word processing to edit documents. “A lawyer should have a basic understanding of how word processing software works and what word processing software the lawyer’s office uses. Help files, pull down menus and other innovations make it much easier to learn to use your word processing software if you invest the time to try.”
Joseph Lawson, Law Library Director at the Harris County Robert W. Hainsworth Law Library, is well-known for his Legal Tech Institute for practicing attorneys. He agrees that attorneys should dedicate time to getting technology training. But, he recognizes that larger firms have easier access to these opportunities. “When it comes to legal tech, solos and small firm practitioners face a distinct lack of training opportunities.” In particular, Lawson cites, “downloading forms from databases, saving Word documents as efile-ready PDFs, or inserting a section symbol can slow their progress even while large firms are deploying artificial intelligence to streamline ediscovery workflows.” According to the 2019 American Bar Association Tech Report, only 28 percent of solos report the availability of technology training, while more than 95 percent of attorneys at large firms reported access to training. Lawson suggests that with adequate learning opportunities, attorneys who “fall into the legal tech Bermuda Triangle” can keep up.
To keep up with the profession and the NCBE, law schools are recognizing the disconnect between legal education and the practice of law. To learn more, we encourage you to watch the recorded version of the University of St. Thomas Law Journal Fall 2022 Symposium, A Roadmap for Law School Modernity: Teaching Technology Competence (available at https://youtu.be/hILd5qJ1G4I).
Test items, legal resources, and candidate responses will all be displayed and entered via computer in the Next Gen Bar Exam. This is a perfect opportunity for the NCBE to incorporate technology competency skills. The NCBE has already reported that skills like Negotiation, Client Counseling, and other performance-type skills will be assessed “using uniform text-based scenarios to which candidates will respond in writing or by choosing correct answers from multiple options.” This is a direct result of a survey conducted by the NCBE between 2018 and 2019.
In this survey, the NCBE asked a sample population of practicing attorneys and non-licensed lawyers in the United States to rate proficiency skills needed for basic technology tasks in their law practice. The NCBE reported that “it is quite reasonable for educators, clients, and employers to expect proficiency” in word processing software, research software or platforms, electronic communication software, desktop publishing software, and document storage software, including cloud storage. Basic technology tasks that fall under these categories include “draft initial report for client,” “draft resolutions, written consents, and/or meeting minutes,” and “draft engagement letter.”
Dennis Prieto, who serves as a member of the NCBE Content Scope Committee, reported that “test-takers will be given statutory language and other texts that may help them interpret that language, and then be asked to write a brief email (to a client, colleague, or supervising/opposing attorney) evaluating the problem presented.” In their Winter 2022-2023 Quarterly Update, NCBE reported that they will be introducing “a mixture of several different question types,” where “examinees might be presented with a scenario followed by a handful of short-answer questions, and a prompt to draft a memo.” Since the new bar exam expects examinees to simulate attorney work-product and create documentation, it makes sense for bar examiners to award points for successfully completing basic technology skills.
For example, the bar exam can ask examinees to create documents with specific margins, page numbers, and styles, like the formats expected from local court rules. The bar exam can also include creating a table of authorities or a table of contents. Since email is being drafted, the testing of mail merge skills can also be included in the exam. Finally, depending on the technology used for the exam, examinees could be asked to convert a Word document into a PDF and remove any metadata damaging to their client. This is not an exhaustive list, but it provides examples of some basic technology skills that are expected in the modern-day law practice.
Only after bar examiners include these basic technology skills can the profession say they are ensuring that those who are newly licensed possess the minimum knowledge and skills to perform activities typically required of an entry-level lawyer.
About the Authors
Jessica de Perio Wittman (UConn) and Kathleen (Katie) Brown (Charleston) have been friends since their law school days at Seattle University. Although the two have lived in different states for the past 13 years and now serve as Law Library directors at their respective schools, they still manage to hold Zoom marathon writing sessions on a weekly basis. To see their most recent work, visit https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4108273.
List of Resources:
- ABA TECHREPORT 2019 (https://www.americanbar.org/groups/law_practice/publications/techreport/abatechreport2019/)
- Jim Calloway, Being a Law Tech Lawyer in High Tech Times, 71 OKLA. B.J. 2845 (2000).
- Jim Calloway, Metadata – What is It and What Are My Ethical Duties, 79 OKLA. B.J. 2529 (2008).
- Jim Calloway, The Risks of Technology Incompetence, 36 GPSolo 8 (2019) (https://www.americanbar.org/groups/gpsolo/publications/gp_solo/2019/november-december/risks-technology-incompetence/)
- Casey Flaherty, Could you pass this in-house counsel’s tech test? If the answer is no, you may be losing business, July 17, 2013 (ABA Journal) (https://www.abajournal.com/legalrebels/article/could_you_pass_this_in-house_counsels_tech_test)
- Joseph Lawson, Teaching Legal Tech is Not Optional, AALL Spectrum 42-43 (January/February 2021) (https://www.aallnet.org/wp-content/uploads/2020/12/SPECTRUM_TEACHING-LEGAL-TECH-IS-NOT-OPTIONAL.pdf)
- Dennis C. Prieto, What’s New with the NextGen Bar Exam? AALL Spectrum 16-18 (March/April 2023) (https://aallspectrum.aallnet.org/html5/reader/production/default.aspx?pubname=&edid=0469cc54-2666-4e7e-8c17-009ce7bb09ec)