The rise of technology and its pervasive effect on all our lives – whether we like it or not – has implications for everyone involved in the practice of law. Conveyancing transactions are done on-line. Some company documents can only be filed on line. The use of computer systems, on-line legal research, networked communications and the Internet all feature to some extent in legal offices.
Yet, how technologically aware are lawyers.
This is a matter that has been addressed as a matter of competence to practice in the United States. In 2012 the American Bar Association made several changes to its Model Rules and commentary.
The starting point is basic competence. Rule 1.1 states:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Comment 8 to the Rule states what is required to achieve that level of competence.
“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.”
On this basis, lawyers cannot plead ignorance or inability regarding the use of technology and its associated risks.
So what is the technology that needs to be understood? First is the equipment that forms part of day-to-day legal practice such as computers, tablets, smart phones, scanners, printers or copiers. This category also includes the use of email, and the electronic storage of documents and other information.
Then there is an understanding of the software and programs that are used that may streamline or simplify legal practice. This may include programs for storing, managing and reviewing electronically stored information as well as law practice and management software including matters such as client information, contacts, time entry, billing, document management, docketing and calendaring.
Lawyers also need to be aware of the technology used by their clients and how that has an impact upon business as well as technology that may impose liability on clients, such as, for example, GPS technology, electronic logging, or automated driving technology.
For litigators there has to be knowledge of and familiarity with courtroom technology.
All of this may seem pretty intimidating but in today’s technological age, beset as we are with continuing disruptive change, it is necessary.
If practitioners are concerned at the ABA proposals the Florida Bar has gone one step further. Application was made to the Supreme Court of Florida in September 2016 to amend the Bar Rules to require all lawyers to maintain technological competence by undertaking 3 CLE hours of approved technological education courses. Florida lawyers have to complete 33 hours every 3 years. The standard comes into effect on 1 January 2017
Interestingly enough there was been little resistance from Florida practitioners. The benefits seem to have made themselves clear.
The question that comes to mind is whether or not there should be a technological competence requirement along the lines proposed by the ABA for New Zealand law practitioners or whether the New Zealand Law Society should adopt some form of advisory about technological competence and upskilling for practitioners.