Low-Tech Is Not an Option

Courts and clients are telling lawyers to sharpen their practice-technology skills or risk losing business and running afoul of ethics rules.

The annual college basketball tournament sucks many of us into the vortex of game watching, office pools, and guessing this year's Cinderella team. The countdown starts many months before with sports announcers touting the "Road to the Final Four" in late fall of the year before.

And with expanding media technology, it's easier than ever to get caught up in the so-called March Madness. In earlier decades we would have to attend live games in a regional city, catch the scores on the drive home or, for those early all-day games, play hooky and watch at home.

When I was practicing in Champaign County in the 1980s, a wonderfully deranged group of us would stake out a table in the morning at a local watering hole to watch the Illini play in an early game. That tradition continued when my husband and I started teaching a course during spring break at the U of I College of Law - I remember giving my lecture on cross examination at a pool hall so the students wouldn't miss Illinois in the second round.

In 2014, we can watch on our phone or iPad, set automatic alerts for scores, join and follow office pools online, or DVR the games to watch later. We seem pretty adept at using current technology to enjoy the phenomenon of March Madness.

But how do we as lawyers fare on using technology to run our offices and serve our clients? Are we as adept at performing professional tasks as we are at following college basketball?

Many of you have probably read or heard about the Kia Motors in-house counsel who gave a technology competency test last year to nine of his outside lawyer firms. All nine failed the audit. Before joining the corporate legal staff at Kia, Casey Flaherty was an associate at a big law firm. His hypothesis is that lawyers in general are "woefully deficient in using software tools at their disposal - e.g., Word, Acrobat, and Excel."

He provided associates with mock assignments like formatting a motion in Word, preparing exhibits in PDF, and creating an arbitration index in Excel. He said the specific tasks were not as important as the idea of testing on general technology skills.

Mr. Flaherty could do the tasks in 30 minutes, so he used the one-hour mark as passing, but the best pace of any associate was 2.5 hours and the worst was eight hours. As a client paying an hourly billing rate, he was more than a little chagrined to learn he had been supporting their technological incompetence.

Technological incompetence can certainly be a competitive disadvantage, but it can also represent the potential for ethics violations or even legal malpractice. We can make jokes about not understanding how to use certain software or electronic research tools, but the ethics rule makers have taken notice and the model rules have grown to require technological competence. The ABA recently added language to Comment 8 of Model Rule 1.1 on competence to require a lawyer "to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…" (emphasis added).

And talking about social networking beyond marketing, courts have considered it a matter of professional competence that lawyers investigate social networking sites in cases to find parties and witnesses. Social networks can provide invaluable information to parties during jury selection, but again, lawyers need to understand how a particular site operates so as not to cross the ethics line by inadvertently initiating ex parte contact with a juror.

Many legal agencies and organizations have moved to electronic communication. The federal courts have mandated electronic filing for lawyers and many state courts are following suit. These states require attorneys to maintain an active e-mail account, to monitor that account, and to respond to messages.

Our own ARDC is migrating lawyers to online registration. Three years ago, the ISBA moved to primarily electronic voting for our annual elections. Most ISBA publications are Internet-based and mobile-friendly. Likewise, a majority of consumers looking for legal assistance go to websites rather than phone books. It is essential for lawyers to have and understand their online presence.

For the less than knowledgeable, e-discovery is a huge potential pitfall. When the concept of e-discovery first emerged more than a decade ago, it was basically considered an issue for large law firms and large clients. Not so anymore - even litigation between individuals represented by solo and small firms can involve e-discovery. And e-discovery can be both costly and dangerous if not performed with expertise.

Newer technology like cloud computing makes tasks like file sharing quick and easy if you know what you're doing, but as lawyers we also need to be keenly aware of client confidentiality and data security. Can you imagine how your clients would react to a Target-like data breach of your files? Not only would it be a future hiring issue with that client, but possibly a malpractice suit or ARDC referral. And while we need to stay current on technology trends, we also need to know the ramifications of using that technology.

The ISBA is well aware of this need both from the perspective of providing education to our members as well as integrating technology into our physical facilities. This year, the ISBA made all of our online CLE courses available as part of our Free CLE member benefit.

When it comes to smartphones or tablets to keep up with college basketball in March, many of us are quick to buy the next cool gadget on the market. But as we follow the action on those courts, let's not forget to keep up with technology trends affecting our courts.