I have long followed Ivy Grey. She is a thinker and writer whom I admire. She has a way of explaining complex conundrums in clear and concise ways, and her brain easily twists around the myriad ethical challenges that face the legal industry, guiding her pen into solutions that serve lawyers (and their clients) well. (She also has a pretty hilarious Twitter feed. How goes the Clementine obsession, Ivy?)
Selfishly, one of my favorite “Ivy Topics” is technology competence. Obviously, I am constantly trying to help law firms train their employees to competence, but in these endeavors, I often don’t have time to get into the deeper philosophical ramifications of tech incompetence. For example, most firms know that they’d be more efficient if their people could use their tools better, but we aren’t often diving into the deeper ethical issues revealed by incompetent lawyers.
Ivy, as they say, goes there.
She recently wrote a report for WordRake titled, “Ethical Duty of Technology Competence: What Lawyers Need to Know.” Here are some of my favorite outtakes. (Bold phrases are my emphasis.):
Lawyers have long ignored the importance of the technology tools we use to practice law in favor of a single-minded focus on substantive skills. Butin the last decade, the imaginary divide between substantive and technical skill has begun to fade.
We now know that technology is fundamental to the proper delivery of legal services and, in 2012, our Model Rules were amended to reflect that. Though it may seem obvious to some, it bears repeating for many: Lawyers have a duty to be technologically competent. Any use or avoidance of technology that negatively affects your clients could be an ethical violation.
Failure to provide adequate technology training to all lawyers in the firm, including digital natives, means that the lawyers will be unable to meet their duty of technology competence. It also means diminished quality of attorney work product, reduced profits, and wasted time.
Make the Case for Tech Competence by Using Other ABA Ethics Rules
Now, even if the partners and managers in a firm “get it” and agree that tech incompetence seems like an ethical lapse, it can be hard for them to articulate their mandate for technology training in a way that doesn’t end up sounding a bit too vague. Afterall, the 2012 ABA Model Rule that started this whole conversation is rather vague! “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…” Given such a broad statement, how does one even begin to focus technology training efforts?
If you’re not sure how to focus your technology training, Ivy suggests using other ABA rules to guide your efforts. She analyzes four rules specifically. I include the rules below and a snippet from Ivy’s analysis.
- Model Rule 1.5: Unreasonable Fees. “Fees from incompetent and wasteful work are not reasonable.”
- Model Rule 1.6: Duty to Protect Client Confidences. “Many lawyers carelessly reveal information relating to the representation of a client every time they share a document with someone outside of the firm or re-use a document from a prior representation without cleaning the metadata.”
- Model Rules 5.1 and 5.3: Failure to Train and Supervise. “Partners and supervising lawyers must create policies and procedures that facilitate compliance with all ethical duties.”
Using these rules as your bumpers, you can take a look at your law firm and ask questions that lead to the training you need, such as: Do our attorneys waste time creating documents? Do our attorneys know how to strip metadata from a document? Do our attorneys share documents in secure ways?
Is There a List of Tech Skills that Lawyers Should Know?
Wouldn’t we all like the ABA to come out with one master list of tech skills that, upon achieving mastery, certifies us as ethically competent? But, quite honestly, any list of skills that lawyers are told they need today would certainly be obsolete in a year or five years.
Instead, Ivy advises the following: “No state has published a list of technology that lawyers must learn or skills that lawyers must possess. However, if such a list were to be made, it should include case management software with a calendaring system; document management software; research tools; billing software; email and other communication systems; a PDF system with redacting capabilities; and the MS Office Suite, particularly MS Word.”
In the white paper, Ivy goes on to take a deep dive into MS Word, a tool for which she has a keen passion, believing that it is the foundation for all good document creation. She’s not wrong. I strongly encourage you to read the white paper from cover to cover.
How Does a Law Firm Maintain Competence in Ever-Changing Technologies?
Here is where I’d like to add my two cents as a technology trainer: The only way to maintain technology competence in your law firm is to provide ongoing, law firm-specific training in the platforms that you expect your attorneys and employees to use every day.
From ongoing new hire training to need-it-right-now skills tutorials for seasoned attorneys, your training program must be flexible and robust enough to accommodate everyone’s daily and long-term needs. And from my perspective, most law firms (particularly small- to mid-sized firms) do not have the personnel or budgets to provide a sustainable training program. Most law firms need a training partner that can provide:
- A cloud-based learning management system
- Training content that specifically targets the unique needs of the legal industry
- Trainers with the ability to craft skills-specific webinars for your staff and attorneys
- A relationship with the technology providers you choose (ie. NetDocuments, iManage and others) so that your launches and upgrades go smoothly
- All at a reasonable price
If this sounds like a partner you’d like to meet, you’re looking at him! Contact Savvy Training & Consulting today for a discussion and demos of any training services you need!
And if you’d like to learn more about WordRake, I encourage you to visit this website.