Technical Competence
December 16, 2019 § 2 Comments
Are you technically competent enough to protect your clients’ interests and represent them zealously?
As Philip Thomas pointed out in a blog post last month, 37 states already impose a duty of technical competence in their ethical rules. Mississippi will probably be the 50th, based on past experience, but most of us will probably be around when the requirement is imposed in Mississippi.
So what is technical competence, anyway? Here’s how one proposed rule defines the duty:
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 [My emphasis].
All of that looks like the existing duty to stay current with case law and changes in rules and practice EXCEPT for the highlighted language “including the benefits and risks associated with relevant technology.” That’s a pretty broad statement. What exactly is relevant technology?
Some benefits and risks are apparent to even the most technically illiterate person. For example, MEC, computer word processing, computer billing, and online research we can recognize are benefits. On the other hand, if you send an email with confidential information to opposing counsel, or if you send a document with unredacted metadata, or if don’t protect your servers from hackers, you soon find out what are the risks. I guess that’s part of what the rule considers “relevant technology.”
Those are fairly obvious and familiar to almost all of us. But there are developments in technology and the law that only a few know about and it will be a while, if ever, before they reach the mainstream. If I knew what they were, I’d itemize some for you. Are those cutting-edge changes included in what one is chargeable for?
As of right now, I think lawyers are already under a duty to understand the risks and benefits of internet communication, electronic discovery as practiced by the great majority of lawyers, wireless communication, metadata, and internet security, and to take appropriate steps to protect from or reap advantages out of them.
Fortunately, the number of older lawyers (my age group) who only a few years ago proudly boasted of computer illiteracy (“I don’t even know how to turn one on! Haw, haw, haw!”) is shrinking. Some of that shrinkage may be due to attrition, but I think mostly it’s due to the fact that they have come to understand that keeping up with changing technology, in some degree, is vital for survival in the profession.
One thing you might find helpful is to follow Mr. Thomas’s blog. He often touches on technical developments in the law.
The Primitive Lawyer
October 26, 2015 § Leave a comment
Suppose you had decided to build a new house. You give your plans to two different contractors and ask for an estimate and for details how they plan to do the job. After a week or so, you interview the two contractors. Here is what you learn:
- Contractor 1 will use all up-to-date materials, power tools, and as few builders as necessary to accomplish the job. He will produce a structure and finish comparable in quality and price to the other recently-built homes in the neighborhood. Construction will take about four months.
- Contractor 2 avows that he uses only traditional construction materials and tools; no power gizmos. All nails and fasteners will be fashioned on-site by his own blacksmith. Lumber will be carved out of raw wood using adzes. Naturally, the use of traditional methods will require many extra hands. Because hauling of materials will be done by ox-cart, and materials will be prepared on the job, construction may take as much as two years, three tops. Oh, and he can’t project a price, but he will bill you as the work progresses.
So which contractor are you going to hire?
Lawyers are no different than those contractors. No matter how excellent your litigation skills and razor-sharp legal analysis, you are operating with a decided handicap if you are limiting yourself to 19th-century techniques of legal research, handling of pleadings and discovery, case management, and communication. Your dinosaurian ways will cost your client more for the same services that others are getting more promptly at lesser rates. Over time that will mean loss of clients and diminishing revenues.
It always tickles me to hear lawyers boast that “I don’t even know how to turn on a computer,” or “I don’t use email,” or “Social media? What’s that?” We live in an on-demand world. Clients are consumers of legal services just like Amazon customers are consumers of commodities. They expect an acceptable level of service right now. They order goods and services online and get their digital products instantly, and physical items in a day or two. They communicate via twitter, text, FB Messenger, and email. That’s especially true of 20’s and 30’s legal consumers, who are used to instantaneous communication and information. They have no patience for paper-and-pencil and snail mail.
Just as dangerous as no knowledge of technology is inadequate knowledge of technology. If you don’t have a clue as to how FaceBook, Instagram, Snapchat, Twitter, and all their ilk work, how can you mine those sources for info, and how can you help mitigate your clients’ faux pas on their accounts? Likewise, before you click “send” to transmit that digital discovery to opposing counsel, have you made sure that all the metadata that might include attorney-client communications and other privileged information has been stripped out?
Failure to keep up and develop technical competence has its consequences, as this article from Lawyerist aptly points out.
The Better Chancery Practice Blog 