The Technology Bar Has Risen and Attorney Competency Must Move to Meet It

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The Essentials of Understanding Technology on a Practical and Ethical Level

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What is one of the most important issues to affect the legal industry over the past decade? Yes, changes to the FRCP and the 2008 recession would certainly rank highly, but more fundamentally, the explosion of technologically enabled methods of data creation, and the practical implications, and communication of these developments on the practice of law.  Over the past year or two there has been a groundswell of attention pointed directly at attorney technology knowledge and skills.  More specifically, the focus is on the higher standards now required for professional competency. Or to put it another way, there is an increasing focus on just how lacking many attorneys are in deploying technology skills.  Not just with the more specialized technical practice areas (such as IP or litigation), but even in the fundamental skills required for day to day efficient practice, such as basic competencies in the use of the Microsoft Office suite of software.

To put this in proper perspective; this applies to all of us. With few exceptions, lawyers at all levels of experience will to some degree be affected by their ability to demonstrate basic technology skills. For example, an attorney often needs to request and receive information from a client. Since data and information is now created and stored in so many different forms and places, a basic understanding of these tools is required just to posit the questions correctly. If you are involved in litigation, due diligence, investigatory or compliance matters, there are fundamental skills required just to understand the key issues and facts of the matter, and to properly utilize this information for your client’s benefit. To clarify, this does not mean that you need to become an expert in computer programming and IT systems. What it does mean is that you need to develop a fundamental understanding of how to use and implement these technologies and systems so that you will be able to identify the key issues and appropriate experts to support your efforts.  The incentives? In addition to fulfilling your ethical requirements, going forward, technology competency may distinguish between those who prosper, and those who do not.

The legal services industry has fundamentally shifted from an era of minimal client knowledge about legal work requirements, quality, or billing standards, to one of increasing transparency; even prior to project engagement.  The industry has become the most competitive we have ever seen, and that trend is likely to continue. There are several major factors that are primarily causing this shift, of which the most important may be that for many types of non-complex issues legal services are becoming commoditized. Nontraditional service providers are offering legal services at lower costs, and the billable hour is no longer routinely accepted; with clients increasingly demanding predictability in legal fees. Let’s face it, one of the reasons that routine legal matters are becoming viewed as commodities is directly due to the advances in technology that allow ideas and documents to be efficiently repurposed, thereby reducing the need for each document to be an original piece of legal work.

All of us are painfully aware of the impact that technology is having on our daily existence. We have moved in a very brief historical span from writing on yellow pads, sending snail mail, and land line telephones to an ever changing environment of personal computers, laptops, email (both business and personal), smartphones, tablets, iPads, texting, Twitter, Facebook, Vine and others that haven’t even debuted yet.  It seems as if there is a daily creation of new social media methods of communication, and the manner in which the information is stored. Proliferation of technology, data creation and information transfer is accelerating at ever increasing speeds.   I am fortunate enough to have a 14 year old consultant at home. She recently brought me up to speed on which social media technologies are gaining traction with her age group.  But what do you do if you don’t have a 14 year old?

Although many of these amazing innovations have been incorporated into the basic fabric of our economy, the practice of law has not changed dramatically over the past century, and continues to be a lagging sector in the implementation of technology based efficiencies.

Lawyers, out of practical and economic necessity, are being forced to rapidly adapt to this growing paradigm of massive information and data creation and the expectancies of a marketplace that places a premium on efficiency. Unless you have a unique set of professional skills that are highly differentiating, both senior and more junior attorneys will be evaluated by clients and colleagues in some measure, by their abilities to master and effectively deploy technology skills as one of the core components in their toolbox. In the most practical terms, for an experienced lawyer, it may mean the difference between obtaining a new client, or in the retention of an existing one. For a junior attorney, it may be a factor in career advancement. For a new lawyer, it may be the differentiator in getting that first job.  Technology is changing the practice of law, and in a profession that is seeing minimal growth, it is becoming another method to screen and evaluate the competitive pool.

Some of us probably went to law school (with the exception of course, of IP attorneys) believing that the practice of law would not require a significant amount of technical knowledge or expertise. But in reality, there are now basic levels of technical knowledge required of all attorneys. While there are specific types of domain expertise demanded of litigators, for example, there are general levels of technical competency that all of you need to attain in the second decade of this century. There are few practice areas today that do NOT encompass the need for these minimum levels of knowledge. Compliance, contracts, security, privacy, due diligence, investigations, human resources, etc. now all require attorney knowledge of how their clients manage their information systems and where they store and share their data.

What has changed the most over the past few years is the expectation of clients, who are demanding that the practice of law incorporate these productivity enhancement tools. There is a new focus on “efficient = proficient”. Our difficult economic climate has necessitated corporate clients to demand competency in practice management, and in fact, are more frequently retaining consultants to analyze the comparative value obtained from their outside counsel.

The knowledge of basic technology concepts and a good facility with baseline technical skills is no longer optional; it is mandatory for attorneys that desire to prosper in the decade to come.

In 2012 the ABA made amendments (and revisions to the comments) of its Model Rules of Professional Conduct, reflecting the practical realities that technological competency is no longer just a desirable skill for attorneys, but in fact an ethical obligation to their clients. We are likely at the beginning of a period where clients may challenge negative outcomes of matters based upon their counsel not exercising the expected levels of technical competencies. These types of situations will likely not be helpful for practice development.

Whether you are a senior attorney, in mid-career, or just starting out, these standards have risen and will continue to evolve.

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