Look: nobody wants to feel like a numbskull or a has-been. You don’t want to wake up one day and realize you’re that crotchety greybeard frowning petulantly while the kids talk about their interweb you-tubes and their twitterings.
But being competent isn’t just about your feelings. It’s not even about winning cases. It’s about complying with the very first Model Rule for Professional Conduct:
Rule 1.1 Competence:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
It kind of seems like a throw-away rule at first glance — a tautology that amounts to: “To be a good lawyer thou shalt be a good lawyer.” But the comments which the American Bar Association provides for this rule delve a little deeper. And in 2012 the ABA made a change to those comments that got a few knickers in a knot. Comment 8 to the rule now reads:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of the 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. (emphasis added)
Technological know-how has officially entered the realm of lawyerly competence, and not a moment too soon. Even if it seems attorneys love their shiny new tech-toys more than their own grandmothers, legal tech audits show that many could use more prodding to keep them current.
Ever see the old 90s Saturday Night Live sketch of the Unfrozen Caveman Lawyer? Heavy-browed Phil Hartman was thawed out of 100,000-year-old ice, and now tells the jury:
Sometimes when I get a message on my fax machine, I wonder: ‘Did little demons get inside and type it?’ I don’t know! My primitive mind can’t grasp these concepts. But there is one thing I do know: when a man like my client slips and falls on a sidewalk in front of a public library, then he is entitled to no less than two million in compensatory damages, and two million in punitive damages.
In the skit the jury enthusiastically nods, but I wouldn’t recommend the caveman tactic outside of a skit-setting (and let’s be honest: if you’re still using a fax machine, you’re essentially an Unfrozen Caveman Lawyer yourself). As states are slowly adopting the latest revisions to the Model Rules, things won’t be pretty for Luddite lawyers.
There are already a few examples. One is from 2014, when a Chancery Court of Delaware noted that a defendant’s counsel attempted to explain his shoddy e-discovery offerings by asserting he just wasn’t one of those goll-darned techie kids:
I have to confess to this Court, I am not computer literate. I have not found presence in the cybernetic revolution. I need a secretary to help me turn on the computer. This was out of my bailiwick. (James v. Nat’l Fin. LLC, No. CV 8931-VCL, 2014 WL 6845560, at *12 (Del. Ch. Dec. 5, 2014))
The Court was not sympathetic to this aw-shucks retro attorney (though, to give him his due, he’s smarter than me when it comes to vocabulary like ‘bailiwick’). Citing the new Comment to the Rule, which Delaware has adopted, the court asserted “[p]rofessed technological incompetence is not an excuse for discovery misconduct.” They ruled against the defendant, noting the responsibility its counsel bore for the situation, and issued sanctions.
So it’s too bad if you went to lawschool instead of the tech industry because you didn’t want to become one of those eggheads. Maybe you remember the good old days when a presidentially high-powered attorney could brag that he’s sent two emails in his entire life, but the times they are a-changing, and they ain’t a-changing back.
What Does It Mean?
The ABA’s Model Rules are just that — examples of the professional conduct rules each state can adopt. So far, 20 states have adopted the technology comment, and there will likely be more in the future. But even if you live in one of the states that haven’t, you’re not off the hook: the ABA asserts that the rule of technological competence really is nothing new, and can be inferred by the older rules and comments. The Commission that drafted the new comment reported that the earlier version:
already encompasses an obligation to remain aware of changes in technology that affect law practice, but the Commission concluded that making this explicit [. . .] would offer greater clarity in this area and emphasize the importance of technology to modern law practice. The proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.
Tech competence has been an issue for a while, and it’s knitted deeply into the questions of ethical practice. Legal scholars Michael Arkfeld and Stephanie Loquvam state:
Let’s face it — lawyers historically have ignored (and still do) the technological issues affecting client communications, discovery and production of electronically stored information, and other digital issues in their practice. We see it daily in sanctions handed down by the court in e-discovery cases — for confidentiality breaches of clients’ electronic information, or chastising lawyers who fail to use litigation search technologies that reduce costs and provide greater access to justice.
A number of states have already issued specific guidance on the ethical questions of cloud computing and metadata. This is bigger than one comment to one rule, and you’re not going to be able to flee to a state so backward you can get away with the Unfrozen Caveman strategy.
Can’t We Just Outsource This?
One gentle back-pat offered to lawyers freaking out about learning technology has been the idea that you can outsource it. As legal tech scholar Bob Ambrogi says: “Lawyers don’t have to be IT professionals or engineers — but they need to know when they need one.” In other words, the key is to know what you don’t know.
While these are wise words, and true in many cases, you probably can’t just get by with a little help from your friends. For one thing, as three legal professionals with BakerHostetler put it:
lawyers may not recognize those instances — in which “mere association or consultation” with other lawyers may not be sufficient, as “simply making another, seemingly more ‘tech-savvy’ lawyer or staff member the point person for all things technological” presents its own set of ethical and practical challenges.
One reason for this is that there are two general ways of using tech in your practice. One deals with the technology that affects the case — digging into the e-discovery or using predictive coding, for instance. If ‘social media’ signifies nothing to you beyond a chatty press conference, it’s still possible you could partner with someone who gets it, and be just fine.
But the second aspect of good tech use is embedded in the very way you do your practice. If you can’t communicate adequately with clients (maybe because you insist on everything being faxed) and you can’t store your documents in a way that is both accessible to you and confidential, then nobody’s going to be sympathetic when you explain you’re failing because all of this computery-stuff is “outside your bailiwick.”
4 Tech Arenas to Watch
Think you’ve got the tech knowledge you need to be a full-grown Competent Attorney? Test yourself by seeing where you fit in the following areas of new legal tech:
1. Legal Research: You’re probably not thumbing through the old leather-bound legal tomes for any reason but nostalgia. But are you using an adequate legal databases and do you know how to use it well? Each database contains a number of tutorials — we won’t tell if you use them.
2. Case Management: Do you have the right technology to efficiently and safely organize and store documents? How about your methods of communicating with clients? Do you keep an organized record of all your communications?
A good system of managing your case will not only help you with confidentiality (Rule 1.6), it will also reduce the time you have to spend on finding and organizing your material, which means better complying with Rule 1.5, which demands that attorneys charge a reasonable fee.
If you need help on this one, a Filevine demo is just a click away.
3. E-discovery: In Ambrogi’s words: “It’s impossible to completely (let alone zealously) represent a client in a matter involving electronically stored information without a better-than-average familiarity with technology.”
And this brings us to the controversy of predictive coding, which uses a system of linguistic algorithms to sort out relevant material in digital communications. The promises of predictive coding are remarkable, with some estimating it can reduce discovery costs by up to 90%. Again — that’s great for the charge-a-reasonable-fee rule. But if the algorithm fails — as I’ve heard technology sometimes can do — then you could be at risk for sanctions under Rule 3.1 (the duty to produce electronic information), and/or Rule 1.6 (for not adequately filtering out privileged information).
4. In-court Presentations: Do you have methods of displaying information and conveying an argument that is clear and compelling to judges and jurors? Also recognize that it’s possible to go a bit too far in this area, overspending on gadgets that don’t really enhance our presentation or aren’t supported by the rooms you’ll be in. Also, be aware that over-reliance on fallible tech can leave you in a lurch (anyone remember Michael Bay’s disastrous exit when a teleprompter went awry? You’re not allowed to pull that move when your projector turns against you). There’s still room for the old-fashioned presentation skills like story-telling and verbal rhetoric.
Noted sage Michael Scott from The Office once opined:
Everyone always wants new things. Everybody likes new inventions, new technology. People will never be replaced by machines. In the end, life and business are about human connections. And computers are about trying to murder you in a lake. And to me, the choice is easy.
But the good news is that the realm of legal tech isn’t trying to murder you in a lake: it’s increasingly focused on building and maintaining trust with others, and protecting an ethical obligation you have to them as an attorney. This isn’t a checklist or series of hoops to jump through. It’s an elastic rule that’s trying to be as changing and ambitious as the technology is.
And behind all the new jargon is a basic stance of accepting change and a be willing to learn. Even a caveman could do it.