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Competency In the Digital Age:
An Attorney's Ethical Duty
In recent years we have seen technology improve the way we keep time and bill our clients. Easy electronic access to court records has revolutionized the way most firms operate. Technology has also made it possible for us to e-file, e-sign and e-serve in almost all areas of the law and in almost every court. Nonetheless, generally speaking, the legal field has been adversarial to the information technology age.
The Summit on Law and Innovation (SoLI), presented by Vanderbilt Law School’s Program on Law and Innovation was held in Nashville, TN on April 30th with a goal of tackling that issue specifically.
Every law firm regardless of size will always be working on ways to increase revenue, improve efficiency and control costs. And despite evidence that more technology in our firms can greatly assist with these three goals, there is still a great deal of resistance. Lawton Penn, Head of DWT De Novo and one of the summit’s speakers, says that this is largely due to the fact that it is difficult to “show the value of dodged bullets.”
Lawton Penn On Precedence
“Lawyers are trained to anchor ideas in precedent,” Lawton Penn reminds us when she is explaining why lawyers are hesitant to venture into uncharted technological territory. Moreover, this resistance is not just grumpy, anti-Millennial talk. We do work in a field where we have a very high standard of ethics and protecting our client’s confidential information is of utmost importance.
The rules and opinions on technology in the legal field tend to be broad in an effort to take into account the fact that technology is constantly changing. This broad generalization, as opposed to clear-cut rules, can contribute to an attorney’s resistance to engage as well.
ABA Model Rule 1.1, Rules 5.1 through 5.3 have all been largely affected by the technological age and in 2009 the ABA developed its Commission on Ethics 20/20 to specifically address issues facing attorneys in the 21st Century.
Lawyers Must Understand Technology
In 2012, after a three-year study on technology in the legal field, the commission bluntly determined in its report that “Lawyers must understand technology in order to provide clients with the competent and cost-effective services that they expect and deserve.”
The commission went on to suggest that the ABA “make explicit that a lawyer’s duty of competence which requires the lawyer to stay abreast of changes in the law and its practice, includes understanding relevant technology’s benefits and risks.”
Technology Is Here, Govern Yourselves Accordingly
The report goes on to suggest that a “lawyer 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 in a digital age.” This is where Comment 8 from ABA Model Rule 1.1 was derived.
In 2016, Florida became the first state bar association to require three hours of CLEs in technology over a three-year period. Other states have begun to follow suit, most recently Pennsylvania. An indication that whether we want to embrace it or not, we are in the information technology age.
What Doesn’t Bend Breaks
Some leaders in the legal field are very adamant about moving forward with technology in law firms. Patrick Palace, of Tacoma, suggests an “entire reregulation” of the legal profession that includes “radical collaboration” between lawyers and other professions, particularly those “well-versed in technology.” Palace went on to predict that maintaining the status quo will “lead our profession to failure.”
I cannot help but agree with Mr. Palace’s grave prediction. As we all know, a typewriter is still a document processor; however, attorneys that still use them as their sole document processor are operating at a huge disadvantage to their counterparts and, as the ABA’s Commission on Ethics 20/20 suggests may not be providing competent legal services because of that.
I am sure this example may sound dramatic; however, there are still practicing attorneys who are using very antiquated methods in their practice. Further, the typewriter age was not that far back. I know of many firms that would have to admit they were still using typewriters to draft pleadings well into the late ’90s.
Technologically Competent
Which begs the question, what office procedures are you using today that could be replaced with current technology now? It is worth taking a deep look into that question, especially considering an attorney’s ethical obligation to remain competent in the digital age.
This above article was submitted to the Nebraska Legal Professionals publication The SideBar. Visit Nebraska Legal Professionals to learn more about this organization that is dear to my heart.
Keep It Simple Software
Part of the struggle in keeping up with the digital age in the legal field lies in the unique billing structure the legal field has. Utilizing technology has become yet another frustrating task of learning difficult software. That is one of the main reasons why Paralegal Power uses Freshbooks. It’s intuitive, tracks time and furnishes professional invoicing for an incredible price.
I have seen many law firms operating costly timekeeping software just because it is made for the legal field. Well, Freshbooks does everything most law firm timekeeping software does and more. Click here to access Freshbooks free legal invoice generator, perfect for solo attorneys, small law firms and contract paralegals. They have all a huge option of free template invoice generators for a number of different industries and they are all free.
Click here to access all of Freshbooks free invoice generators. The free version downloads as a Word document, pdf, Excel spreadsheet or any of GSuite’s products like Google Docs or GSheets. You are going to be glad you found Freshbooks.
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About the Author
Valentina Zapata Harris
Mother | Advocate | Blogger