iLawyer: the Ethical Use of Technology in Your Practice
June 8, 2023
Reading time: 6 minutes
The pandemic forced those lawyers who may have been reluctant to implement new technology into their practices to download the Zoom app and get comfortable working remotely, rather than mere steps from their assistant. The practice of law was reinvented and traditional face-to-face procedures, such as hearings, were conducted by videoconference. Although we have resurfaced from the days of quarantine, the ease of using modern technology has encouraged some judges to continue to utilize these procedures today.
So how do we balance these advancements with traditional values and methods that still play a role in practicing law? I would attest that most lawyers still see the value in being in a courtroom where a judge can swiftly administer justice and the benefit of face-to-face negotiations to parley a prickly deal. The modern lawyer must now strike the balance between keeping up with technological advances as required by the Rules of Professional Conduct and maintaining that important facetime with their clients – whether in the office or courtroom.
Staying on top of technological developments is not only vital to delivering top notch legal services to your clients, it is also one component of your ethical duty of competence. A lawyer’s duty to provide competent representation now includes an ethical obligation with respect to technology. In 2012, the ABA added Comment 8 to Rule 1.1 of its Model Rules requiring lawyers to stay current with relevant technology. Specifically, the Comment states:
- To maintain the requisite knowledge and skill, a lawyer should keep abreast of 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.
So rather than merely downloading Zoom, or doing the bare minimum in terms of embracing technology in your practice, consider this obligation an opportunity to expand your knowledge and implementation of technology to better serve your clients. This could mean anything from setting up an online payment system for your clients’ convenience to attending a technology seminar – even if you still prefer to take notes on a legal pad.
Recent State Law Developments
With the majority of the states adopting some form of a technology component in their competency rule, chances are you practice in a jurisdiction with such requirements. Here are just a few states that have directed lawyers to expand their knowledge or use of technology in their practices:
As part of its continuing legal education (CLE) requirements, Florida implemented a mandatory technology requirement, specifically three hours of technology CLE every three years. The Board of Govenors for the Florida State Bar also has a Technology Committee to ensure that technology tools and educational assistance related to practice management are readily available to Florida lawyers. The Board describes its primary purpose as taking a proactive, forward looking review of technologies that are currently and may soon be impacting the practice of law.
The University of Illinois College of Law is equipping its future lawyers for the impact that technology may have on their practices. “Technical Literacy for Lawyers” is a course examining various technology concepts including privacy and security, artificial intelligence, net neutrality, and other current event topics related to technology.
Once you pass the Illinois bar exam, you may look for more guidance concerning the use of technology from the Illinois State Bar Association (“ISBA”) Advisory Opinions. The ISBA recently considered the use of cloud-based services in the delivery of legal services. It issued an opinion confirming that a lawyer may utilize “the Cloud” but must take reasonable measures to ensure the confidentiality of client information and cannot solely rely on the service provider.
New Hampshire has been at the forefront of the use of technology in the courtroom. In 2021, it became the second state after Arizona to adopt Case Center, a cloud-based court exhibit presentation platform, statewide. In line with New Hampshire’s e-Court Program Initiative, the goal is for state superior courts to improve case processing and streamline hearings with the platform.
The State Bar of California has issued a formal ethics opinion which mirrors ABA Model Rule 1.1 Comment 8. Interestingly, the opinion also addresses the use of e-discovery andrequires attorneys, who are otherwise experienced but lack a basic understanding of e-discovery, to either: (1) acquire sufficient knowledge and skill before taking on the representation; (2) associate with or consult technical consultants or competent counsel; or (3) decline the representation. The state bar has seemingly taken this position because, in its opinion, the lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.
If your state isn’t listed here, be sure to check your jurisdiction for recent changes in the law as it relates to technology requirements. For example, Colorado, the District of Columbia, Idaho, Indiana, Nevada, Utah, Virginia, and Washington have recently pushed the traditional bounds of estate planning by enacting laws related to the electronic signature of wills, remote witnessing or notarization of wills, or procedures for electronic execution of self-proving affidavits.
Best Tech Practices
But what about the practical, day-to-day impact emerging technology may have on your practice? While the size of your firm may dictate the extent to which certain technological advances may benefit your practice, there are a few tips that will likely serve all lawyers in the digital age:
- Client communications – Although lawyers are permitted to routinely communicate with clients via unencrypted email correspondence, be sure to mark your emails as “confidential.” If you are regularly sending emails or attachments with sensitive information including bank account or Social Security numbers, consult with an IT professional about using an encryption service that will easily interface with your office email.
- Storage of confidential data – Given the impracticality of retaining every piece of paper in a physical file, consider reducing your paper files in a way that works for your firm. While you should, of course, maintain all original documents, other file materials, along with copies of the originals, can be saved electronically. By creating searchable PDFs or utilizing software that can search image-only PDFs, you can save yourself valuable file room space. And while you may initially fear losing access to electronic files, rest assured that sophisticated backup systems and cloud servers make this highly unlikely.
- Retainer agreements – Consider including a provision in your retainer agreement or engagement letter providing for the client’s authorization of the backup and storage of electronic files, including on cloud-based servers. Be sure to customize and update your engagement letter with technology updates at your firm as they are implemented.
- Case management software – By taking the time to learn how updated case management software could help streamline time entry and billing, as well as integrate with your email inbox, you will gain time (and peace of mind) by easily accessing your calendar, time, and electronic files in one place.
- E-filing – Although most of us rely heavily on a legal assistant to handle all e-filing, consider learning the process yourself. Not only may this be an invaluable tool if you have to file something after business hours, it may increase your efficiency in the drafting stage if you have a better understanding of the e-filing requirements.
- Legal research – Take your legal research tool provider up on that free lunch and learn how to use its latest features. As these companies make great strides in their own technology, you may become more efficient in your research by learning a new search option or how to add a quick case citation to your brief.
Without question, technology is changing at an unprecedented pace. However, our profession is unique in that a meeting in your office or court appearance can make the difference in the client relationship or outcome of the hearing. As lawyers, we can value both the “old ways” of practicing law and utilizing new technologies to support our practices. And should you find yourself feeling frustrated by having to add another app to your home screen or answer a web security question, remember that keeping up with emerging technology is part of your duty of competence, technically speaking.
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Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by the use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability, or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to [email protected].
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