technology competence

The following is a summary of a continuing legal education class on ethics of law and technology I was invited to co-present:

Lawyers (in the US) are bounded by the rules of the American Bar Association known as ABA Model Rules of Professional Conduct. They prescribe the standards of legal ethics and professional responsibilities for lawyers such as conflict of interest, fees, confidentiality, scope of representation , and of course competence (Rule 1.1.)

In the past, lawyers were evaluated on their competency based on their experience and knowledge of the substance of the law in their practice areas. As technology evolved, so did the rules and the scope of competency.

In 2012, the ABA modified Rule 1.1 to require lawyers to stay abreast of changes in the law and its practice including the benefits and the risks associated with relevant technologies. As of 2019, 36 states adopted the ABA section regarding the need for lawyers to maintain their technology competency.

While the Model Rules do not require lawyers to be technological experts, all lawyers are required to have at least a basic understanding of technologies they and their clients use.

Furthermore, lawyers should differentiate between technology-related security measures that are ethically required and security measures that are merely considered best practices.

Being hang-up on best practices, may result in unnecessary expenses that will be passed on to clients or worse, decide to abandon the idea of adopting new technologies that can potentially improve processes and provide better services to clients.

My reasoning is based on my personal experience talking to lawyers and other professionals on this topic. The common example I hear is the use of encrypted emails. Email is the less secured mean of communication and best practices is to avoid using it when sending sensitive information. One solution to mitigate this risk is to install an encryption system to secure the transfer of messages and eliminate the risk of having them intercepted in the process. However, email encryption is a complicated process and constitute a huge inconvenience that most people either not use email for this purpose at all or use it and shift the risk to the client through disclaimers as an example.

This is where training and staying abreast with changes in technologies become necessary. In the past years, several secure and affordable alternatives became available to allow users to engage in secured communications without breaking the bank while still having an pleasant experience.

There are several ways lawyers can learn about new technology trends and learning opportunities. The most common ones is to check continuing education programs offered by community colleges and schools. They often provide programs focused on one subject over a short period of time. They are also tailored toward adult learners making the material practical and less overwhelming. Public libraries are another place where learning about technology take place. In addition to regular technology workshops, some libraries provide access to dedicated online training programs such as LinkedIn Learn (formerly Lynda.com) as part of their free resources.

The ABA TECHREPORT is another place to learn about technology trends in the legal field and what other lawyers are using or lacking for that matter. The report is published annually and provide analysis of the ABA Legal Technology Survey as well as some valuable recommendations.

Finally, we live in age of Youtube tutorials and DIY attitude. If you have a question about how to (fill in the bank), someone else probably published a step-by-step guide on how to do it online. With simple search techniques and ability to quickly identify relevant content out of the noise, you should be able to teach yourself anything you want.

I find this topic very fascinating and I‘m glad I had the opportunity to share what I know. I you are a lawyer, I have one advise for you. You need to up your game on technology competency, for your sake and, even more so, for the sake of your clients.