In the 2019 series of student blog posts for Legal Problem Solving, students are digging into the American Bar Association's 2016 Report on the Future of Legal Services to explore how far we've come in 2019 and what remains to do in the innovation of legal services delivery.
In Recommendation 2 of their 2016 Report on the Future of Legal Services, the ABA recommends that “all members of the legal profession ‘should’ keep abreast of relevant technologies.” In the 2019 ABA Profile of the Legal Profession, lawyers expressed their opinions on different forms of technology used in the workplace and the importance of staying abreast of technological change. For example, the vast majority of attorneys polled responded that they utilize online resources to conduct legal research. At the more sophisticated end of the technology spectrum, a significant percentage of lawyers (36%) also recognized and respected the increasingly important role that AI will play in the legal profession.
The 2019 ABA Profile indicates that many lawyers respect the importance and role of legal technology in the legal profession. It also represents that the recommendation in the ABA’s 2016 Recommendations is being followed to a certain extent. The problem? Technological change is not happening quick enough or by the entire legal community.
The 2016 Report makes one pertinent failure leading to its inefficiency—it phrases legal competency as a “should” rather than a must. In 2019, it is not only an aspirational goal that attorneys utilize technology in their daily practice, but rather a necessity for the vitality of the profession.
As of 2012, the Model Rules of Professional Conduct actually do include a duty of technological competence for all lawyers. While this requirement has the potential to cause a sea change in the legal profession, its vagueness hampers its ability to promulgate change. As it currently stands, our technological competency standard remain little more than a hollow rule encouraging, but not mandating, lawyers to utilize technology in their practice. This presents a multitude of problems for attorneys: (1) we have varying ideas of what constitutes legal technology; (2) we have a technological competence requirement but few meaningful methods of achieving such competence; and (3) we have lackluster enforcement of the technological competency requirements. These problems must be addressed.
Technology addresses a wide range of resources, from the seemingly basic programs we use in our daily lives, to extremely complex and cutting-edge forms of innovation. Lawyers from different age demographics, therefore, understand the requirement of “technological competence” in differing ways. To an older attorney, proficient usage of Microsoft Office might be considered a technological victory. To young attorneys, especially those graduating from law schools where legal technology is integrated into the curriculum, legal technology spans wider frontiers: AI, blockchains, cybersecurity tools, and more encompass the technological playing field. Our first goal should be establishing a clear definition of technological competence so all attorneys can start from the same baseline and set their expectations accordingly.
Moreover, while the Model Rules require technological competence, the legal profession is not doing enough by way of providing resources and incentives to actually achieve technological competence. Currently, only a handful of the states have a mandatory Continuing Legal Education (“CLE”) requirement on technology. What is perhaps most surprising is the laughable requirements imposed on attorneys in states that do have such a requirement: in North Carolina, all lawyers must complete just one hour per year of technology-related CLE. This is a comically low bar given the rapid pace of technological change.
Several solutions should be adopted to address the inadequate means by which lawyers can achieve technological competence. First, meaningful, technologically-centered CLE courses should be mandated for attorneys of all ages. These courses could be taught by computer scientists, e-discovery experts, professors specializing blockchain technology and AI, and the like. Moreover, we should further incorporate legal technology into the law school curriculum, thus ensuring all new attorneys graduate with the technological competence needed to be successful in the field. Programs such as the Program on Law and Innovation (“PoLI’) at Vanderbilt Law School provide a fantastic example by which other schools could base their legal technology offerings.
Last, I believe the legal profession must actively police technological competency among lawyers. The “requirement” of technological competency should not be a normative goal, but rather an enforced requirement for practicing attorneys. When lawyers fail to utilize widely available technology, they are not only ineffectively utilizing their own time, but providing a detriment to their clients and employers.
As attorneys, we know we should do a lot of things—more effectively capture our hours, mentor younger lawyers, and perhaps stop drinking so much caffeine. While these are aspirational goals that can be implemented over time, embracing technology is not a change that can happen gradually. We must keep abreast and enforce technology competency requirements in the legal field. It is our duty.
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