There was a time, back in what we now call the “Dial-Up Era,” when I was current with technology. I was self-taught in Fortran and seriously torn between computer science and pre-law classes. Would it be an overcrowded law school or hanging out with two guys named Steve in a garage. To the chagrin of Robert Frost, I chose the road more traveled, and that has made all the difference. Today, I need help from a (usually) much younger colleague to show me where the ruler has been hidden in the ever-increasing platforms for Microsoft Word.
Developments in electronic tools happen faster than you can say “Hey, Siri.” Though some lawyers simply have to get the latest, fastest cell phone, we are in a deliberate profession, one that “grinds exceedingly fine but exceedingly slowly.” We’re trained to focus on events 50 years ago, not 15 months from now.
Do we have an obligation to keep up with technology tools for lawyers (“law tech”)? Section 1, Comment 1 of California’s Rules of Professional Conduct says we have “a duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.” Percipient, a purveyor of law tech services, reported this year that 40 state bars impose a duty of tech competency.
We’re not required to become proficient in using law technology, thank heaven, only that we keep up to date with its “benefits and risks.” We are trained as lawyers, after all, and only rarely as hardware or software engineers. We don’t need to know exactly how a self-driving car works, beyond basics such as setting the destination, but we do need to know its abilities and limitations.
Benefits and Risks
Relying only on my numerous electronic and human system failures during 42 years in practice, I have a working knowledge of tech risks and benefits. Perhaps the State Bar can use these examples to elaborate on the “changes in law practice associated with relevant technology” of which we are required to “keep abreast.”
The risks may be to our clients, ourselves, or both, including:
Data insecurity. There are so many methods to breach data security. Some have fanciful names like phishing (emailing large groups, looking for that one person who gets hooked by opening and clicking on the suspicious message), spear-phishing (tightly targeted phishing), shoulder surfing (low-tech looking over others’ shoulder to see their passwords and screens), and many others. My firm and the law school where I teach require annual training on cybercrime, making me somewhat abreast of the subject, but far from adept.
A kilobyte of prevention beats a terabyte of lost client records. The Gartner organization predicted the total cost of cybersecurity systems and services will reach $170.4 billion worldwide this year. That sounds like a lot of money, until one compares it with the estimated losses caused by cybercrime in 2021, $6 trillion worldwide, according to Cybercrime Magazine.
User error. We’ve come to assume that there’s a level playing field in cyberspace. What about recipients of voluminous documents sent via OneDrive or a similar program that downloads the contents to their hard drives? They are as vulnerable as whatever else resides there. Security is only as secure as its weakest link. Another example: the sender uses a little-known downloaded application to package and send documents, but that program has its own bugs, limited features, or incompatibilities with the recipient’s browser or other software. I suggest having the link tested by your technology department or doing a test run using nonproprietary records.
Power outages. In the Bay Area these occur more often than months with “r.” The question isn’t what-if, it’s when. If Iitigation deadlines are inflexible, have a Plan B in mind. Mine is the local library, which runs on a different part of the grid than my house. There have been area-wide outages, but far less often. In case the whole area goes dark, even the cell towers, I maintain an old-fashioned wired phone line – a nearly certain way to reach others in my firm or opposing counsel.
Hasty mistakes. We’re all busy, working at warp speed, and often regret messages sent in haste or anger. I once had to apologize to a large email list, promising never to hit “send” again during a total eclipse of the brain.
The consequences can be harsh, as when a “reply to all” on a privileged subject includes recipients who aren’t within the attorney-client relationship. For sensitive or important messages, I write and rewrite the text, then step away for a minute or so. Does the email trail include things I don’t intend to share, or people with whom I shouldn’t share? After being certain I’ve gotten it right, I type in the intended recipients addresses, then click “Send.”
The benefits of using law tech are increasing along with the risks:
Staying in business. Even without state bar prompting, a reasonable amount of law tech competence is important. Clients and other consumers of services expect us to make their lives easier. We wouldn’t hire a plumber who asks us to provide the new pipes. When we add value to our clients’ legal needs using technology, with as few “frictional costs” as possible, we benefit too.
Staying abreast with the practice. My 1L class in 1977 was given a chance to test drive one of the first law tech tools, a newfangled research machine called Lexis. It ran on a teletype terminal and printed its results on computer paper with holes on each side. Today, Lexis/Nexis, WestLaw, and similar services have shifted research into high gear. Electronic filing of court papers and access to court dockets have made it easier to conduct litigation, with less risk of missing the 5:00 PM filing deadline. Again, it’s not necessary to master these tools, just to know how they can improve legal practice.
Department of Corrections. Tedious tasks, such as complying with byzantine local court rules when calendaring deadlines, are simplified and made more reliable with law tech aides. CompuLaw, widely used in California, is one such online service.
Computers can also address, to a degree, one of the shortcomings of our educational system: the lack of proper writing skills. I object to being called a “grammar Nazi,” or any other kind, for that matter. Since the times of Hammurabi and Moses, the law has been based on the written word. I do not deduct grade points for poor writing in the law classes I teach as they are not legal writing classes, but I encourage students to use the built-in aides for grammar, spelling, usage and style. Second only to poor reasoning, poor writing skills are the main obstacles to success for graduates entering the profession.
Virtual presence. Over the last two years we have become dependent on virtual court hearings, depositions and trial testimony. Zoom, Teams, and BlueJeans are commonly used media. Lawyers have also become accustomed to online continuing legal education. The savings in time, travel and gasoline have been tremendous. The phone company used to advertise, “Long distance is the next best thing to being there.” That slogan should be updated: “Long distance is better than being there, unless the case is in Hawaii.”
Plenty of risks, plenty of benefits, that’s the state of law tech today. Like all technology, as it advances we become more reliant on it. Artificial intelligence is already being applied to legal practice.
I hope I’ll be smart enough to keep abreast of it.
Tips and parting thoughts
As we age, most of us find ourselves relying on tech-savvy colleagues, support staff and vendors to help with tasks such as routine discovery, data storage, research and billing. We turn more often to electronic systems and software to be our silent partners in the practice. We also raid the medicine cabinet more often than the pantry, but that’s another story.
State bar codes of conduct are not the goalposts of legal malpractice and should not be construed as such. The standard of care is still determined by the level of practice in the community. That said, the bar rules govern our legal regulatory system.
Keeping up with changes in the law practice, including law tech’s benefits and risks, makes good business sense.