Ignorance of Technology is no Excuse

BY Kerrie Spencer

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Did you ever suspect when you went to law school that one day simply being a great attorney might not be enough?

Now, lawyers must also understand technology to keep up with the law, their clients, and the world at large. It is a daunting task at times, as technology changes so quickly, and not all new innovations are intuitive. There are new applications out just about every day, some easy to learn and others not quite so easy. But the bottom line is that ignoring technology and hoping you do not have to deal with it is potentially dangerous for your practice.

If technology is not your thing, and you prefer paper files and other tactile means of keeping records, the latest American Bar Association (ABA) comments may be daunting – but if you do not make some effort to understand the workings of new (and not so new) technology, you could be disbarred. While there are various ways to work with this latest change, it is good to get your feet wet now and start learning how technology can help you grow a bigger law firm.

The ABA new comments to ethics guidelines for attorneys have added a technology component, making it unethical to be in the dark about technological developments, including email communications, social media and various other applications available to help run and administer a law office.

Several additional and specific technological references dealing with online lead generation, duties to prospective clients, online discussions and a lawyer’s obligations when receiving digital documents were voted in to the ABA’s official rules. This means you should have more than a passing familiarity with concepts such as encryption, media storage, unallocated space, active files, fragmentation, metadata, audit trails and deleted information, among others. Knowing this “stuff” makes you a savvy attorney in today’s e-age. Just think of the benefits for clients.

One of the interesting things about these changes is that very few lawyers even know about them. And, many do not realize that the changes are not binding on lawyers unless and until they are adopted by each state. Possible loophole? Judging by the tenor of the changes, the speedy manner in which they were adopted, and the “or else” reference to getting smart with technology, lawyers may have some time before their state adopts that rule, and the rest of them passed at the same time. That may be just enough time to get to know the latest technology and be compliant when the rules are set in your state.

So there it is, your legal skill-set must now include technology. Note that the rule governing attorney competence (Rule 1.1) did not change, but the comment that follows the rule did, by offering guidance as to the rule’s meaning and application in practice. The comments now say: “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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

The changes to the Model Rules of Professional Conduct were the result of the Commission on Ethics 20/20 detailed analysis of the current legal and technological environment. They began looking at these issue and the old rules in 2009, with the desire to discern how technology and globalization have impacted the legal profession.

While the comment relating to technology is one of the biggest changes, it is certainly not the only one that lawyers need to be aware of as they move forward. For instance, one proposal is aimed at simplifying things for younger attorneys who want to move to new jurisdictions and not have to retake the bar exam. This practice, admission by motion, currently exists in 40 jurisdictions and is something the ABA would like to have included in all jurisdictions. Along with that rule is a companion rule, allowing an attorney to practice for up to a year while seeking admission to the bar.

Some regarded the changes as lawyer-friendly, while others opposed their implementation, but were outvoted and still others were neutral. And in reality, the changes make sense in light of the way business is done these days – mostly online and with the assistance of some very sophisticated technology – a boon to attorneys who embrace it.

While there are those who argue the changes are being implemented too quickly, it should be pointed out that computers have been in use by millions of people, including attorneys, for more than 25 years. Even if you are not a fan of the technology, it is almost impossible to avoid the changing electronic milieu that is used daily. It is only recently that the electronic age has started to rocket forward with the advent of different applications, operating in the cloud, syncing this and that, using smartphones, ediscovery, epayments, and other mobile devices.

In order to keep up with latest changes, reach clients who are also mobile and adapt to the online world as it exists today, an attorney must know what he or she is doing when it comes to using technology. Really, this is not introducing anything new. The ABA has just finally said, “Use it or lose it.” What do you plan to do in the light of this new rule?

Kerrie Spencer

Kerrie Spencer is a staff contributor to Bigger Law Firm Magazine.


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