Technological Competence for Lawyers

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.

Technology for Lawyers: A competence requirement?

There has been a bit of publicity of late about the difficulties that some law firms are having in adapting to the continuing disruptive change that characterises the Digital Paradigm. The introduction and use of information technologies provides one example.

A lawyer’s stock in trade is not time, as has been suggested in the past. It is, in fact, information. The law office is an information hub with information flows coming in and out in the form of instructions, advice, the provision of information necessary to complete transactions, the preparation of materials to inform the Court of the nature of a dispute and the like. Information technologies must be a part of everyday legal practice. Technology enables law firms to do better in the provision of their services, and can assist in providing clients with cheaper, high-quality and nimble services.

Smaller law firms face a real challenge. There is not the division of labour in a smaller form, tuned to fulfilling client needs, to step back and take a deep perspective view of the future. Big law firms are able to attend to this aspect of practice management and often have internal teams working on little else. The smaller firms and the sole practitioners need to focus on things like websites, digital marketing, social media, e-discovery and cloud-based tools for practice and case management—hopefully giving them a competitive advantage in job market and spurring the use of new technology in every day legal practice. Cloud technology, for example, “is removing many obstacles by reducing hardware and in-house IT investments, quelling cybersecurity concerns, easing the complexity of scaling and updating software, and providing better overall access to general computing power. Additionally, as vendors continue to place more of a premium on providing online training modules for their products, the last great barrier to remain will simply be motivation” according to Mike Susong of Legaltech News.

At a recent forum titled “The Future of Legal Services in the United States: The ABA Issues a Clarion Call for Change” discussions centred on the problems citizens faced getting access to legal services. William Hubbard, immediate past-president of the American Bar Association suggested lawyers think more creatively about how they deliver legal services meaning that lawyers should “embrace technology and the benefits technology can bring to provide new avenues to provide legal services to those in need.”

There is a significant recognition, especially by the ABA, of the importance of technological knowledge and understanding as part of professional competence requirements. Four years ago, in 2012 the ABA Model Rules of Professional Conduct required, as part of the commentary to Rule 1.1, that lawyers have a duty to keep abreast of the benefits and risks associated with technology.

In September 2016 the Florida Supreme Court took the matter one step further, issuing an opinion adopting the Florida Bar Association’s proposal for mandatory technology Continuing Legal Education (CLE).

“In addition to adding the three-hour requirement, the court also amended a comment to its rule on lawyer competence to say that lawyers could retain non-lawyer advisers with “established technological competence in the relevant field.”

The court added that competent representation may also involve cybersecurity and safeguarding confidential information. “In order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology,” the court held.”

It will be interesting to see if this move catches on. There can be no doubt that CLE programmes contain technology oriented modules, but the Florida move now makes it mandatory. This must be viewed as a necessary step as we move further and further into the Digital Paradigm and more and more aspects of technology permeate the legal landscape.

I have argued in the past that lawyers who argue technology related cases need to understand the technology and how it works. There is no point arguing a case about publication of material on social media without knowing how the platform operates, what its parameters and settings are, what the settings were at the relevant time and, importantly, how those settings can be located and examined. There is not really a “one size fits all” approach that can be adopted to social media and it would be unwise to make generalised assumptions about the qualities and operation of a platform.

There is little point in attending a case management conference about e-discovery unless the lawyers are aware of the various technologies that are available and, as importantly, how they work so that a reasonable and proportionate discovery proposal can be reached.

The nature of digital information, in and of itself, is paradigmatically different from that which is recorded on paper. Lawyers must understand this and recognise that although content is king most of the time, what lies beneath the content can be as informative, if not more so, than the content on the face of the document.

There are many more examples but the message is clear. Lawyers cannot be resistant to the Digital winds of change that are blowing. Bend, adapt, adopt must be the message for lawyers in the Digital Paradigm.

Law, Information and Technology

This is the text of a keynote speech that I gave to the New Zealand Law Society seminar on Technology Law held in Auckland on 20  June 2013. Because of appalling weather, the Wellington seminar was unable to be held but will be rescheduled (hopefully) later this yearThe powerpoint presentation used in the address may be found here.

It has been said that the only asset that a lawyer has is time.  This comment probably originated to justify time costing, a practice which, over the years, has become highly contestable.  But I would dispute the fundamental assertion.  A lawyer’s stock in trade is not time but it is information.  The law is no more and no less than a information acquiring, processing and sharing occupation.  The law in itself is information that limits or allows certain activities.  So that a lawyer may properly advise his client there is an information flow from client to lawyer.  The lawyer may then be required to look up the law in which case there is an information flow from the source of law, be it legislation or cases, to the lawyer.  The lawyer then communicates the information to the client thus the original information flow is reversed.  On the basis of the information (advice) received by the client, the client may make a choice as to the course of action that he or she follows.

Likewise Court proceedings are all about information.  Information takes certain forms, be it by way of pleadings which inform the Court what the dispute is about, evidence which informs the Court as to the strength of the assertions contained in the pleadings, submissions by which the Court is informed as to the possible approaches that it may adopt in determining the outcome, and from the Court to the lawyers and the parties when it delivers a decision.  In the course of processing the decision the Judge or Judges will embark upon their own information acquisition activities, looking up the law, checking the assertions or alternatively having recourse to an internal information exchange involving Judges Clerks.

In some way shape or form these have been  fundamental realities of the practice of law.

Before the introduction of the printing press the law was a mixture of primarily an oral culture supplemented by hand written manuscript material.  The introduction of a printing press enabled lawyers to approach and access information in a different way.  The printing press was utilised by the State to print legislation incorporating lengthy pre-ambles, which are as much political propaganda as anything else particularly during English Reformation.

Case books, which had been formerly hand written were reduced to print. In time the fundamental qualities underlying the content provided by the printing press – stability of text, fixity and standardisation of content, and wide spread dissemination allowed for the development of precedent which could not happen in the absence of a reliable text to which reference could be made.  It is also possible that legislation in print, and indeed the reduction of much legal information to print in the 16th century allowed lawyers to focus more carefully upon textual analysis and the way in which the printed word could be interpreted, giving rise to principles of statutory interpretation.

The printing press is an example of the impact of an information technology on the law.  My suggestion is that any new information technology is going to have an impact upon occupations or professions whose business is information. The rise of digital information technologies has already significantly changed the way in which we practise law.  Early examples can be seen in the introduction of word processing and computer based trust accounting. But they are earlier and rather clumsy examples of the way in which technology enables new ways of approaching information.

What we need to understand about new information technologies is that they have two major aspects.  One is the content layer and we are immediately familiar with this.  In fact it is probably the main thing that we think about when it comes to information technologies.  But there is more to it than that.  Every new information technology – and this has been the case from the printing press onwards – has its own particular properties or qualities that significantly differentiate it from other earlier information technologies.  This is particularly the case with digital information systems.  Examples of these properties are

  • Persistence,
  • Continuing change or what you could refer to as the disruptive element,
  • Dynamic information
  • Delinearisation of information
  • Dissociative enablement,
  • Permissionless innovation,
  • Availability
  • Participation
  • Searchability
  • Retrievability.

.Once you begin to understand the importance of the qualities or properties of a new information technology then you begin to get some insight into Marshall McLuhan’s comment “the medium is the message.”[1]   Although we may be dazzled by the content which McLuhan suggested was the piece of meat that attracts the lazy dog of a mind, we can begin to get some understanding of how it is that new information technologies are going to change not only our approaches towards information but also some of our fundamental behaviours.  This may reach the point where even the values that we may attribute to information that underlie certain behaviours may themselves change.   And this is the case with the law.  One only needs to consider the rise of remote evidence giving – both spatial as the case with audio visual links or temporal as is the case with pre-recorded evidence – to understand the revolutionary impact that these forms of evidence giving are going to have upon the traditional Court case.  Technology can enable the “non-presence” of witnesses. Formerly, court cases have been all about physical presence of all the “players”.  Indeed in the early days of pre-recorded evidence or audio visual links Judges scrambled to find reasons why these technologies should not be used emphasising among other things the importance of presence.[2]

However there are hidden sides to the impact of new technologies and these lie in the way in which the properties that I have described of new technologies influence us.  Marshall McLuhan said “we shape our tools and thereafter our tools shape us” and this of course gives rise to the question of whether or not the internet changes us forever.  Underlying this theory is the concept of neuroplasticity – the ability of the brain to adapt to and learn from new stimuli.   The concept of neuroplasticity was picked up by Nicholas Carr in his book The Shallows: How the Internet is changing the way we think, read and remember.[3]  His book, based upon an earlier article that appeared in the Atlantic, has as it thesis that the internet is responsible for the dumbing down of society based upon the way in which our minds respond both to the wealth of information and its availability.

The neuroplasticity argument is picked up by Susan Greenfield[4] who believes the web is an instant gratification engine, reinforcing behaviours and neuronal connections that are making adults more childlike and kids hungry for information that is presented in a super simplistic way but in fact reduces their understanding of it.  Greenfield is of the view that the web spoon feeds us things to capture our attention. This means we are learning to constantly seek out material that stimulates us and our plastic minds are being rewarded by our “quick click” behaviour.  We want new interactive experiences and we want them now.

This view is disputed by Aleks Krotoski[5] who firstly observed that there is no evidential support for Greenfield’s propositions which pre-suppose that once we used the web we will forever online and never log off again.  According to Greenfield, says Krotoski, we become connected to our computers and other devices in a co-dependent exclusive almost biological way ignoring where how and why we are connecting.  Krotoski, for example, disputes internet addiction, internet use disorder or neurological rewiring.

In some respects Carr and Greenfield are using the “low hanging fruit” of technological fear[6] to advance their propositions.  Krotoski’s rejection of those views is, on the other hand, a little too absolute and in my view the answer lies somewhere in between.  The issue is a little more nuanced than whether or not the Internet is dumbing us down or whether or not there is any evidence of that.

My argument is that the impact of the internet lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

This may not seem to be as significant as Carr’s rewiring or Greenfields neuroplasticity but it is, in my view, just as important.  Much of our decision making is based upon information.  Although some of our activity could be termed responses to stimuli, or indeed it might be instinctive, most of the stimuli to which we respond can in fact be defined as information – if not all of it.  The information that we obtain when crossing the road comes from our senses and sight and hearing but in many other of our activities we require information upon we which may deliberate and to which we respond in making decision about what we are going to do, buy and so on.

And paradigmatically different ways of information acquisition are going to change the way in which we use and respond to information.

Elizabeth Eisenstein argues this in considering the impact that the printing press had upon intellectual elites and the intellectual activity of the Early modern period.  The first information technology was an enabler – an agency of change – for the intellectuals of the Renaissance, the Reformation and  the Scientific Revolution.  And it had its own impact upon the intellectual elite of the English lawyers.[7]

I would suggest that in the digital information paradigm we are seeing similar although not identical, changes.  I am not talking about electronic land transfer and company registrations in and of themselves.  These in my view represent what could be called content layer changes.

There are other changes that are taking place that arise from some of the fundamental qualities that underline new digital communications technologies – and all communication technologies have these particular properties[8] or qualities underlying them and which attach to them; from the printing press through to the wireless through to the radio through to television and into the digital paradigm.  It is just that digital systems are so fundamentally different in the way in which they operate and in their pervasive nature that they usher in a new paradigm.[9]

But to get back to legal practice.  I mentioned land transfer transactions and company registration.  What in fact is happening with these transactions is that information technology de-personalises them. For the lawyer sitting in his or her office, the transaction takes place with a few mouse clicks and the entry of a few authentication codes and that’s an end to it.  The transaction is de-personalised in the sense that this manner of closing a transaction – as the Americans put it – or settling a transaction means that the gathering together of the legal representatives of the various players to exchange documents, check discharges of mortgage and the like no longer occurs.  These gatherings were important in terms of the culture of the pre-digital lawyer.  They developed a sense collegiality among the lawyers involved.  They allowed for the development of trusted relationships based upon continued personal contact and often upon the making of an undertaking coupled with a handshake.

Whether that vacuum arising from the use of technology has been filled with something else is not for me to say and I make the observation not with any sense of nostalgia but as an example of the way in which technology induces changes.

Consider email.  To discuss email in and of itself is to focus upon the content layer.  What I would like you to think about is the behavioural or changes in routine  enabled by email along with the quality of the communication that takes place.

But there is more to technological change than the way in which we modify our behaviours in the routine of practice.  Richard Susskind a British lawyer, technology expert and futurists has written four books – The Future of Law (1996), Transforming the Law (2000), The End of Lawyers (2008) and Tomorrow’s Lawyers (2013).  Susskind is of the view that the legal industry – note that he uses the word industry and not profession – is in an evolutionary state.  Technology, or a better designed process, is reducing the need for expensive, artisan trained lawyers.  In many cases by removing the lawyer from the value chain, cost goes down, quality goes up and service delivery time becomes faster.  This is because, among other things, the legal services market is being upended by new entrants who are offering legal inputs and legal products to law firms, legal departments and average citizens.  One example may be found in legal process outsourcing but there are many others.

Susskind argues that legal work is migrating from bespoke work[10]  to standardised[11]  to systemised[12]  to packaged[13]to commoditised.[14]  These changes are made possible by identifying recursive patterns in legal forms and judicial opinions which enables the use of process and technology to routinise and scale very cheap and very high quality solutions to the myriad of legal needs.

Susskind points out that clients do not want to pay a lot of money for their legal solution.  More significantly there is more money outside the shrinking quantity of bespoke legal work.  Susskind observes that the greatest profit making opportunities are lodged between the systemised and packaged parts of the continuum.  If an organisation can continuously innovate and create systemised or packaged solutions to legal issues and problems that can be sold over and over again to a large base of clients, the organisation can enjoy the prospect of making money while you sleep.[15]

This constant innovation approach is one of the challenges identified by Susskind which he describes the “more for less” challenge.[16]  Liberalisation is another – the opening up of legal work beyond traditionally educated and qualified law practitioners who are protected by legislation and who hold the monopoly on legal work.  These changes may be found in our present law practitioners’ legislation along with current changes to legal aid.  Although this movement is not worldwide Susskind anticipates that when such liberalisation gives rise to legal businesses and legal services that better meet clients needs and a growing “more for less” challenge then this will have a ripple effect around the world.

But it is in the field of information technology that Susskind has interesting things to say at least from my perspective.  Although many lawyers have computer equipment in their offices generally the legal profession, according to Susskind, has not been swift to embrace new systems or, if they have adopted them, to utilise the maximum potential of them.  Many lawyers consider that IT is over hyped but few will have heard of Moore’s Law, suggesting that every two years or so the processing power of computers would double and its cost cut in half.  The fact of the matter is it is now foreseeable that the average desk top machine will have more processing power than all of humanity combined.  It seems to be strange that it might take something like that to force lawyers to rethink some of their working practices.

Susskind considers it inconceivable that information technology, which is radically altering many aspects of our economy and society, may comfortably be ignored by the legal profession who may consider that legal work will be exempt from any change. That is a fatal view for a profession whose business is information. The fact of the matter is that information technology – a slave to the property of continuing disruptive change – enables participation via Web 2.0 where users become providers, readers become authors and recipients become participants and all users can contribute.  New ways of finding information and producing it, collaborating with one another whether as bloggers, users of social networks or contributors to shared online resources such as Wikipedia and Youtube are developing.  And because of continuing disruptive change there is no finishing line for IT or the internet.  Examples of such change may be seen in the fact that 3 years ago very few people had heard of Twitter and 7 years ago Facebook wasn’t on the map.  The problem with resisting twitter and new forms of communication in a profession where information is what we deal with is what Susskind calls “irrational rejectionism” – the dogmatic and visceral dismissal of a technology with which the sceptic has no direct personal experience.

As has so often been said and in science fiction movies – resistance is futile.  We need to be open minded as lawyers because we are living in an era of un-precedented technological change and the fact of the matter is not so much a question of automating but whether or not lawyers can innovate and practice law in ways which could not have been done in the past.

I have just outlined a few issues that impact upon lawyers and the legal profession and the way in which technology presents challenges.  I could go on and consider the issue of legal education because if the profession is going to change then the training systems for the new professionals are going to have to be responsive to those changes as well.  But that’s another story.


[1] Marshall McLuhan Understanding Media: The Extensions of Man  Critical Edition W Terrence Gordon (ed)(Gingko Press, Berkeley Ca 2003)

[2] Aeromotive v Page (High Court, Hamilton CP 31/99 16 May 2002 Harrison J) For discussion see David Harvey Internet.Law.NZ 3rd ed. (Wellington, LexisNexis, 2011) p 512 et seq

[3] (Atlantic Books, London 2010). See alson Nicholas Car “Is Google Making Us Stupid” Atlantic Magazine 1 July 2008 http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/  (last accessed 31 May 2013)

[4] See especially Susan Greenfield “Living On-line is Changing Our Brains” New Scientist, 3 August 2011 http://www.newscientist.com/article/mg21128236.400-susan-greenfield-living-online-is-changing-our-brains.html (last accessed 31 May 2013) For this and for her assertions of “internet addiction” she has she has been criticised by Dr. Ben Goldacre for claiming that technology has adverse effects on the human brain, without having published any research, and retracting some claims when challenged. Goldacre suggested that “A scientist with enduring concerns about a serious widespread risk would normally set out their concerns clearly, to other scientists, in a scientific paper”  Ben Goldacre, “Serious Claims Belong in a Serious Scientific Paper” The Guardian 21 October 2011 http://www.guardian.co.uk/commentisfree/2011/oct/21/bad-science-publishing-claims (last accessed 31 May 2013)

 

[5] Untangling the Web: What the Internet is Doing to You  (Faber, London 2013). Presentation by Aleks Krotoski at the Writers and Readers Festival, Auckland 19 May 2013. Personal discussion between the author and Aleks Krotoski 19 May 2013.

[6] Sometimes referred to as “The Frankenstein Complex”

[7] See David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture 1475 – 1642 (Unpublished PhD Thesis, Auckland University 2012) http://www.scribd.com/doc/103191773/The-Law-Emprynted-and-Englysshed-The-Printing-Press-as-an-Agent-of-Change-in-Law-and-Legal-Culture-1475-1642 (last accessed 31 May 2013)

[8] Eisenstein identified 6 qualities that print technology possessed that differentiated it from the scribal form of written communication of information. These are

a) dissemination

b) standardisation

c) reorganization

d) data collection

e) fixity and preservation

f) amplification and reinforcement.

See Elizabeth Eisenstein The Printing Press as an Agent of Change One Volume(Cambridge University Press, Cambridge 1979) esp. At Chapter 2 pp 71 – 126

[9] See above for some of the qualities of digital information technologies.

[10] Courtroom practice

[11] Common form documents for a merger

[12] Document assembly for estate planning

[13] A turnkey regulatory compliance programme

[14] Any IT based legal product that is undifferentiated in a market with many competitors

[15] For a discussion of challenges facing the legal profession, including a consideration of Susskind’s work see William D. Henderson “A Blueprint for Change (2013) 40 Pepp. L Rev 461.

[16] For discussion see Richard Susskind Tomorrow’s Lawyers (Oxford, Oxford, 2013) esp at p 10 et seq.