I developed a new presentation on technology competence and legal ethics for the recent Missouri Bar Lex Port 2015 conference.
I took a new and practical approach and wrote the following as part of the handout materials. It largely reflects the direction I took in the presentation.
Let me know what you think of this approach.
Timely Technology Competence Tips for the Non-Technological Lawyer
The Key Text.
A lawyer should:
• keep abreast
• of changes in the law and its practice,
• including the
• and risks
• associated with
• relevant technology
Break down each component – what is its real, practical impact on you?
Many believe this is no change at all, and that lawyers have always had this obligation.
Not Rocket Science.
This is not rocket science and a lawyer is not expected to become a rocket scientist. Take a deep, calming breath.
There has to be a reasonableness component in this.
Moving Targets and Sliding Scales.
The comment speaks of “relevant technology.”
Technology changes. What is relevant to you as a lawyer depends on your clients, your practices and your matters.
If understanding technology is core to your representation, your obligation to “keep abreast” is going to be higher than if technology is tangential to your representation. Frankly, there are cases where if you don’t understand relevant technology, you cannot represent your client well or win a case. It’s as simple as that.
Think about it. It’s no different than a personal injury lawyer understanding medical concepts, a patent lawyer understanding the technology well enough to write claims, a tax lawyer understanding accounting principles or kinds of investments, or hundreds of other examples you can think of from your own work.
What is Different Now.
Well, information technology in all its forms touches everything in more and more ways.
Consider some examples.
A probate lawyer facing clients with “digital assets” will need to know about online banking and financial tools, passwords, locating online accounts and much more.
A family lawyer will need to be familiar with social media, passwords, how data is stored and much more.
A litigator will need to understand how and where data is stored and accessed, the basics of computer forensics, and much more.
A trial lawyer will need to understand how to explain technology in terms a juror can understand, how to present evidence with technology and much more.
More specialized lawyers will need to know specific areas of technology.
It is not even realistic to expect anyone to know about every technology. It is reasonable to expect that a competent lawyer will keep abreast of relevant technology in ways that help the lawyer represent a client.
Twelve Technologies That You Might Want to Put on Your “Keeping Abreast” List.
1. Cybersecurity – an essential part of client confidentiality. Plays an increasing role in client concerns.
2. Encryption – confidentiality and encryption continue to move closer together.
3. Data location, storage and nature of evidence – potentially a concern in every matter.
4. E-discovery – part of every litigation today, no matter how small?
5. Metadata – protecting your documents and understanding weaknesses and hidden information in other documents and files.
6. Track changes – redlining is a key component of nearly every negotiation of agreements.
7. Forensics – understanding the basic details of how data can be found, revealed and recovered.
8. Social media – a treasure trove of information on people – parties, witnesses, experts, opposing counsel, and much more.
9. Smart phones – people use smart phones all of the time. There are many implications for lawyers.
10. Digital estate planning – passwords, digital accounts.
11. PDFs – from e-filing to transmitting “locked” documents, PDF is a fundamental tool for lawyers.
12. Internet of Things – you ain’t seen nothing yet – sensors and data everywhere, from cars to surveillance cameras to watches to fitness trackers to, well, everything.
Know your limitations.
First, it’s not possible to know everything from APIs to Zero Day Attacks. It is possible to learn a reasonable amount about technologies that are relevant to you and your clients.
Second, and best of all, it is possible to get help on whatever you need. It should not be different than any other subject you need to keep abreast of. You might consult an expert or a teacher. You might take a class of take an online course (www.lynda.com). Check out technology resources targeted to lawyers (ABA’s Legal Technology Resource Center – www.legaltechnology.org). Read books. Read blogs. Listen to podcasts. There are so many resources.
Do Not Be Afraid to Ask for Help.
I can’t say this enough.
• Get a realistic attitude.
• Identify 2 or 3 key technologies that are relevant and that you know you need to know more about.
• Identify and commit to three simple, practical efforts you will make in the next 3 months to learn about these technologies.
This should not be as difficult as many are making it. It’s what lawyers do in every other subject area. Once you realize that, you’ll jump ahead of other lawyers and have a noticeable competitive advantage.
[Originally posted on DennisKennedy.Blog (https://denniskennedy.com/blog/)]
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LinkedIn in One Hour for Lawyers (Second Edition), the new book from Allison Shields and me, is now available (iBook version also available). Our previous book, Facebook in One Hour for Lawyers, is also available (iBook version here). Also still available, The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell.