Exploring the Ethical Duty of Technological Competence, Part II

9 March, 2017

By Ivy B. Grey

Incompetent Use of Basic Technology Leads to Unreasonable and Unethical Fees

This article is Part II of a two-part series discussing ethics and technology. Part I explored the ethical duty of technology competence. At the end of that article, I introduced the idea that inefficient use of technology in doing billable work for clients could mean overbilling that client. Part II will build on that idea and discuss the practical implications of the duty, tying together Model Rules 1.1 (competence) and 1.5 (fees and billing).

It can be an intimidating thought that by refusing to become technologically competent, lawyers are knowingly wasting client’s time and money. If true, the billable time spent manually performing easily-automated basic tasks or fruitlessly fiddling with MS Word may be an unearned fee to which the lawyer is not entitled. It’s already clear that clients are not willing to pay for this time, but this could be more than a billing write-off—it may constitute an ethical violation.

Earning the Fee: Bills Must Be Reasonable Under the Circumstances

Under Model Rule 1.5, a lawyer may not collect an unreasonable fee. To analyze how technology incompetence can lead to an unreasonable fee, we must first consider when a fee is reasonable. An hourly billing agreement is not permission to take advantage of the client by using wasteful procedures.

In fact, according to the 1996 ABA Task Force on Lawyer Business Ethics, “the lawyer [has] an obligation to address the matter… in a cost-effective manner and to avoid ‘churning’ hours[.]” This means that the right person should be performing the work, using the right tools and technology. No person should spend an unreasonable amount of time on the task.

It is not unwarranted to conclude that a fee is not reasonable if the lawyer performing the work deliberately refused to use available technology to perform basic tasks. This is particularly true when the lawyer forewent technology in favor of manually performing the task, thus spending several times longer to perform it. The corresponding bill would not be reasonable under the circumstances. Choosing to do a task manually is no different to padding bills. And the result is identical: clients suffer.

Exploring the Breach: Abysmal Word Processing Skills

Document preparation, drafting, and polishing consumes a significant amount of every lawyer’s time regardless of practice area. Because lawyers spend much of their time writing, lawyers are probably wasting the most time in this area.

For writing, MS Word is overwhelmingly the most used tool of our trade. As Casey Flaherty described it, MS Word is a robust word processing ecosystem with a wide array of functions designed to solve specific problems, particularly time-intensive, low-value tasks.

Lawyers perform the following tasks again and again, every day. These are basic MS Word skills that every person at your law firm should possess, and, if possible, should be delegated to a lower-level employee. Yet, some level of competence at each of these tasks is necessary—even for partners—because partners are now typing and creating their own documents. At partner billing rates, even 30 minutes spent on any of the below tasks is extremely costly.

We have all heard stories of (or encountered) lawyers who:

Manually number paragraphs or add line numbers.
Do not know how to use templates or are unaware that they exist.
Struggle against formatting, consistently re-doing work rather than re-setting or automating formatting.
Retype information because they do not know how to cut-and-paste with or without the original formatting.
Ignore Bluebook rules and preferences for section and paragraph symbols because they do not know where to find them or how to insert them.
Manually create the Table of Contents and Table of Authorities, and re-do it manually every time the document changes.
Do not know how to track changes, accept changes, turn the feature off, or eliminate its metadata.
Do not know how to make and delete comments, and instead include typing in the body of the document for comments that can be missed, lost, or forgotten.
Fail to use headings to make a document navigable and accessible, among many other things.

For some, it is obvious that lawyers should develop these skills. So why haven’t they all done so? There are perverse incentives to refusing to learn technology—the main one is the billable hour. Billable hours reward inefficient and time-wasting behavior.

The Billable Hour: The Insidious Root of Tech Resistance

Despite frequent proclamations that the billable hour is dead, it persists. Most firms have daunting billable hour requirements, but insufficient work for every lawyer to remain busy. This is combined with increased financial rewards for increased hours and partner pressure to maximize hours. This discourages senior lawyers from delegating, which leads to hoarding hours, and encourages all lawyers to bill as much as possible for every matter, without regard to professional judgment. In sum, the billable hour creates an incentive structure where lawyers work in opposition to their clients’ interests. And any investment in efficiency is seen as a threat to the billable hour and therefore the bottom line. This short-term thinking erodes client trust and encourages lawyers to ignore the ethical choices inherent in billing schemes.

Recognizing the Ethics Problem with Inefficient, Incompetent Tech Use

As lawyers, we consider ourselves to be highly ethical people. Yet, it is common that lawyers choose to prioritize billing more hours over serving clients fairly. This is the choice that lawyers make when choosing not to learn technology. These choices lead to overbilling. Overbilling is clearly an ethical problem, yet lawyers aren’t connecting how shunning technology and efficiency is contributing to unethical billing habits.

Lawyers make these decisions without recognizing that an ethical aspect is at play due to ethical fading. Ethical fading is the process by which the moral and ethical aspects of a decision are diminished until the decision becomes devoid of moral and ethical implications. When people fail to recognize that a decision has ethical implications, and believe the decision to be purely business or economic, good people can allow themselves to make unethical decisions. Such ethical fading is made possible by self-deception, which includes language euphemisms and slippery-slope decision making.

Lawyers rely on euphemisms and excuses to ignore the ethical implications of many billing decisions. We say that lawyers are padding bills, feather bedding, churning, baking in time, and block billing. These terms obscure the fact that you’re deciding to bill the client for time that wasn’t necessary. Several state bar ethics opinions have indicated a willingness to disbar lawyers for collecting significant or systematically unearned fees because doing so is tantamount to stealing.

Now that you can’t avoid learning technology, this is the next logical step. The requirement isn’t simply because the ABA wants you to have some new gadgets. These rules exist to encourage you to serve your clients better. And as technology becomes part of the MCLE requirements, it will become even more important that you start learning now.

Word Processing Technology Beyond MS Word

Comment 8 requires us to keep abreast of changes, which implies something more active than simply learning the programs that we already have (though that is a good place to start). So do lawyers have a duty to discover new technology that will make them more efficient? Arguably we do.

Since we spend so much time working in MS Word, it’s logical to start by looking at tech tools and MS Word add-ins that will improve your experience with it. And because legal professionals do complex work, even our word processing is more complex than the average user, so we need tools designed for lawyers.

Many tech tools are available to improve your efficiency and ensure that you are not overbilling your clients for your written work. One tool is PerfectIt with American Legal Style, which helps with proofreading, particularly with consistency errors, legal-specific typos, Bluebook formatting, and enforcing the leading legal writing style guides.

Lawyers should expect that training in MS Word and these tools will become commonplace as more states adopt Model Rule 1.1 and update their CLE requirements to match. To find other tools and training, check out our Lawyer’s Guide to MS Word Training and Resources.

Complementary CLE Update to Model Rule 1.1

Since Part I of this article was written, in February 2017, the ABA adopted the Model Rule for Minimum Continuing Legal Education (MCLE) and Comments to replace the version first adopted in 1988. This revision responded to new Model Rule 1.1 and Comment 8, as well as Florida’s inclusion of technology-focused courses in its MCLE requirements. It is designed to help lawyers comply with Model Rule 1.1. To encourage access to high quality technology programs, the Commission recommended accrediting technology CLE programs. “’Technology Programming’ means programming designed for lawyers that provides education on safe and effective ways to use technology in one’s law practice, such as to communicate, conduct research, ensure cybersecurity, and manage a law office and legal matters.”

The revised MCLE requirements are important because it reinforces the fact that mere exposure to technology is not enough. Lawyers need to move past technology illiteracy, avoid reinforcing bad habits, and begin deep learning with deliberate practice. One way to get started right away is to begin following the Legal Office Guru for tips on making MS Word work for you.

Conclusion

We have now explored the duty of technology competence under Model Rule 1.1 and how it relates to reasonableness of fees under Model Rule 1.5. We have considered how ignoring advances in legal technology leads to inefficient behaviors, which leads to overbilling. And we have looked at why lawyers do not recognize that ineffective use of technology has important ethical implications.

Now lawyers must grapple with the idea that failure to improve how we use MS Word and provide our written work could be unethical and wasteful. It will take a paradigm shift for lawyers to begin seeing how using technology to improve efficiency and provide better client service is both the ethical thing to do and a good business decision.

Ivy B. Grey is the author of American Legal Style for PerfectIt, which is a proofreading and editing program for lawyers that runs inside of MS Word. It adds polish, reduces frustration, and saves non-billable time. Ms. Grey is also a Senior Attorney at Griffin Hamersky LLP. She's been named as a Rising Star in the New York Metro Area for four consecutive years, and her significant representations include In re AMR Corp. (American Airlines), In re Dewey & LeBoeuf LLP, In re Eastman Kodak Company, and In re Filmed Entertainment Inc. (Columbia House).

This article was originally published in Law Technology Today on March 9, 2017. Last updated: June 26, 2017.