When the world was forced to adjust to new routines in March 2020 due to the global pandemic, I was instantly struck by how little my professional life changed. I’d worked remotely for over a decade, and my systems and procedures didn’t change.
Sadly, the same couldn’t be said for many of my fellow consumer bankruptcy lawyers. I watched many of them struggle with remote videoconferencing solutions and cloud-based applications, learn how to use e-signatures, and research communications solutions to allow them to interact with clients and staff members remotely.
I was reminded of the events of a sunny Tuesday morning in September of 2001 that forced me to expand my technological abilities. Fleeing my office in lower Manhattan with nothing more than my laptop, business checkbook, a tape backup of my computer system, I resolved to never again rely on my physical location to represent my clients. The lateral movement risk needs to be avoided and the system data needs to be protected.
The transition came in fits and starts but was worth the investment of time and effort.
Beyond providing me with peace of mind and substantial flexibility in how (and where) I work, being technologically competent is a core component of my professional responsibilities.
Lawyers Must Be Technologically Competent
The American Bar Association’s Model Rules for Professional Responsibility require lawyers to be competent. Rule 1.1 says:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
For years, the legal profession took this rule to mean that attorneys had to have only the skills needed to represent their clients. Thus, it should be unsurprising that lawyers dismissed the widespread adoption of the Internet and related technologies; a profession ruled chiefly by precedent is apt to ignore the present.
To drag the profession into modern times, the ABA in 2012 clarified the competence requirement by declaring that lawyers must be competent in technology and the law and its practice. An official comment to the rule states:
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.
These Model Rules, which guide states in formulating their own rules of professional conduct, have spurred 39 states to adopt the requirement that attorneys maintain technological competence. Though the rules have been applied primarily to data security and effective use of technologies such as email, storage of documents, and office software, matters such as social media and other means of communication are increasingly being seen as a core competence for attorneys.
What Technology Skills Should Every Lawyer Have?
The duty of competence evolves with technology, so it’s difficult to determine the lawyer’s actual responsibilities at any given time.
For that reason, I have a personal mandate to always understand the ways in which the world interacts. I follow the latest trends, dip my toe in the waters before widespread adoption robs me of the luxury of time to learn, and consider how to adapt each platform to my other ethical and legal requirements.
As the world transitioned to accessing their financial information online, more clients started sending financial documentation by email. Though this reduced the physical clutter in my office, it created concerns about data security and organization. I crafted a solution only after spending weeks asking questions and surveying the options.
The rise of text messaging presented an additional professional issue. Without a reliable means of capturing and retaining those written communications, I ran the risk of losing crucial information – violating my responsibilities to my clients.
Though my clients had yet to make extensive use of text messaging in their dealings with me, I knew that wasn’t the case in their day-to-day lives. Rather than making it difficult for clients by refusing to communicate with them by text, I took the time to solve the problem. I did some research, sampled solutions, and ultimately settled on one that enabled me to save all incoming and outgoing text messages.
Texting has begun to fall off now that people spend more time on social media, communicating by direct message on Facebook, Instagram, Snapchat, TikTok, and Discord. This change in the world is forcing me to take a look at the ways in which I will meet this demand.
Evolve with technology
These are merely examples of the changes we all must make to comply with our professional responsibilities. As a broader matter, I suggest that each attorney ask themselves the following questions regarding every process and procedure in their office:
- Can this procedure be made simpler for my clients?
- Is there a less expensive means of accomplishing a particular task?
- Do my existing procedures differ from the ways in which my clients operate in the real world?
- If my physical office was destroyed, what would be lost? Is there a way to achieve the same functionality by using something that would not be lost?
If any of the answers are in the affirmative, it becomes incumbent upon us to research the options available to achieve these goals.
As technology evolves, so must our willingness to continue learning.