As you probably know, in 2012, the ABA added Comment 8 to Rule 1.1 of its Model Rules of Professional Conduct, saying that lawyers should “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Many state bars (but not Michigan’s) have made similar modifications to their rules. The comment’s “should” language, as well as the ABA’s report accompanying the comment (available here), implies that the comment imposes no new obligation on the lawyer. A lawyer’s duty of competence encompasses technological competence already.
Aside from the possible ethical implications of technological incompetence, low-tech lawyers may also be wasting time and money. In a presentation at the 11th Annual Solo & Small Firm Institute, Barron Henley mentioned Casey Flaherty, who as Kia Motors corporate counsel, began asking Kia’s outside counsel to take a test to determine how quickly they could complete basic tasks in Word, Excel, and Acrobat. If those lawyers failed the test, Flaherty cut their rates. Spoiler: they all failed. (You can check out Flaherty’s assessment, which is now generally available to lawyers and law students.)
Lawyerist.com founder Sam Glover offers these additional examples of lawyer technological incompetence:
- Reluctance or refusal to embrace e-mail for most communications, wasting time and money
- Failure to search online, missing out on a fast and easy way to investigate matters
- Vulnerability to phishing and other scams, losing client funds
- Ignorance of data security measures, making client data vulnerable
- Unfamiliarity with social media, missing discovery opportunities
To help combat this widespread issue, Glover offers a free “Basic Technology Competence Checklist for Lawyers,” where he outlines everything from inserting hyperlinks into documents and e-mails to encrypting your client files stored in the cloud. How many of these tasks can you check off the list? If it is anything less than 100 percent, you might want to make a plan to get up to speed. Your clients will thank you.
For more on this duty, check out ICLE contributor Victoria Vuletich's presentation at Ethics Update 2015 on "The Duty to be 'Tech Competent'."