Guest Post:
Beware of Technology Incompetence (Ed Poll)

edward-pollToday’s guest post was written by Ed Poll. You can learn more about him at the end of the post.

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The world of the law is more than ever the world of the computer.  But having technology tools available is not the same thing as using them properly in practice management, which is where too many small firm and solo lawyers come up short as a matter of professional competence. The American Bar Association’s House of Delegates made 2012 changes in Comment 8 on Rule of Professional Conduct 1.1 (Competency) stating that “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 …” This means simply that lawyers with obsolete technology – or obsolete attitudes – should beware.

Surveys have found that while the majority of large law firms upgrade their technology every two to three years, many small firms and sole practitioners go as long as six to eight years between upgrades.  They cite cost, time to learn and implement the new technologies, and lack of certainty that new technology will increase efficiency and work quality.  None of these reasons will protect a firm against a client who claims that using outdated technology led to incompetent representation, violating Rule 1.1.  This is particularly true in three areas:

  • Safeguard Files.  Rule 1.15 states that lawyers have a professional duty to protect all documents relating to clients by requiring that client property and files be “appropriately safeguarded” without stipulating a minimum timeframe.   Without fail, every firm should back up all computer data and store the media used off-site at a secure and specially designed location.  Everything saved on the computer should be backed-up on a regular basis.
  • Maintain Confidentiality. Rule 1.6 details each lawyer’s responsibility to preserve client confidentiality. That includes using smart phones and wireless laptops which may expose client information to anyone who can access the wireless connection. It is essential that wireless connections should have a reasonable level of security, which should include use of precautions such as file encryption to prevent third-party interception or unauthorized access.
  • Preserve Email.  It might seem that nothing would be more temporary than a quick email, text or Twitter message.  Yet these messages are increasingly subject to a duty of preservation, whether that duty is for a lawyer specifically, or a lawyer on behalf of a client.   These are client communications, and as such must be kept confidential and secure through email backup or archiving solutions, as well as alternate email continuity service.

As more lawyers become more sophisticated in the use of technology, the bar and the standard of care against which all lawyers are measured rise.  Those who do not use technology wisely or so well as their counterparts can be seen as willfully less competent.  That, then, can be seen as malpractice, particularly in light of the revision to Rule 1.1.

Edward Poll, J.D., M.B.A., CMC, coaches and consults attorneys throughout the country in the areas of starting and operating a law practice, strategic planning, profitability analysis, and practice development. He blogs at LawBiz, is a syndicated columnist and regular contributor to several major legal publications. His latest book, Life After Law: What Will You Do With the Next 6,000 Days? has received national recognition for helping lawyers plan for the time they decide to leave the practice of law. Ed is a Fellow, College of Law Practice Management®, Board Certified Coach to the Legal Profession, SAC® .  

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