How to Meet the Duty of Technology Competence

29 June, 2017

By Ivy B. Grey

Introduction

Technology competence is now a requirement for all lawyers. The majority of the states have adopted revised Model Rule 1.1, so it has reached a tipping point: Technology competence has moved from optional to essential. So what do you need to do to ensure that that your tech skills are adequate? This article discusses two options for gaining technology competence: delegation and training.

Background: Technology Competence Is Now an Ethical Issue

If you’ve read Part I and Part II of my series on technology competence, or if you’ve read about tech competence and ethical billing, then skip this background. If not, here’s a quick summary:

After the ABA Ethics 20/20 Commission studied technology in law, it revised the ABA Model Rules of Professional Conduct. The text of Model Rule 1.1 requires lawyers to provide competent representation. Now Comment 8 to Model Rule 1.1 goes further, it provides: “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology[.]” The Commission also recommended accrediting technology MCLE programs that provide education on safe and effective ways to use technology in law practice (since adopted by the ABA). The revised MCLE requirements are important because they reinforce the fact that the duty is continuing, training is important, and mere exposure to technology is not enough.

Based on the interconnectedness of ethics rules, there must be a paradigm shift of our relationship to technology in delivering legal services. Incompetent use of technology when doing legal work is incompetence. Incompetent work means unreasonable fees. And under Model Rule 1.5, a lawyer may not collect an unreasonable fee. It’s time to start using technology to improve efficiency and provide better client service—it’s both the ethical thing to do and a good business decision.

Competency Starts with Software Everyone Uses

When Comment 8 was revised to explicitly state that technology is part of the duty of competence, it necessarily affected Comment 5 to Model Rule 1.1. So Comment 5 must be read to mean that technology is also part of the “methods and procedures” and “adequate preparation” necessary to competently provide legal services. Therefore, under Comment 5, lawyers must use the technology methods and procedures that meet the standards of competent practitioners. Today, no competent lawyer would rely solely upon a typewriter to write a contract, brief, or memo. Typewriters are not part of “methods and procedures” used by competent lawyers. So using your computer as a glorified, glowing typewriter is unlikely to meet the standards.

As lawyers, we do sophisticated work and create complex documents, such as briefs, motions, contracts, exhibits, and e-filings. Our daily word processing is more complicated than the average user. Therefore superficial and merely passable use of MS Word will not do. If you are using technology, a baseline level of competence is necessary. Individual incompetence is not absolved by the fact that many lawyers’ use of MS Word is sub-par. Your word processor is integral to practice and must be learned.

Learning to use your technology tools, such as MS Word, is as necessary for meeting your duty of competence as is learning substantive law—they’re part of the same duty of competence. And no ethics opinions have yet found that one duty of competence is greater than the other.

The Need for Training

The path to competency requires proper training for firms of all sizes. Regardless of whether you will choose to perform the work yourself or whether you will delegate it, training is key to appropriately staffing a matter and managing a project. All work performed for clients should be done by the right person with the right skills, at the right rates, for the task.

Creating policies, providing training, and ensuring ethical compliance (including meeting the duty of technology competence) is part of any supervising lawyer’s duties under Model Rules 5.1 and 5.3. This requires a cohesive training program, supported by a firm-wide policy. It should start with a skills assessment, incorporate deep learning with deliberate practice, be designed to facilitate meaningful change, and have a clear, practical link to each lawyer’s practice.

Competency Through Delegation and Supervision

The first option for gaining competence is delegation. Under Model Rule 1.1, a lawyer who is not competent to undertake representation may delegate the duties after developing a reasonable level of technological awareness to supervise and delegate the matter.

Delegation is not an easy way out for incompetent lawyers. It means sharing authority and responsibility with (and adequately supervising under Model Rules 5.1 and 5.3) an employee or a third party and adequately supervising them. Effective delegation takes work and consideration and can lead to great efficiencies. The person delegating must have enough knowledge and ability to give direction, ask questions, ensure ethical compliance, and determine whether the work was done properly. To reach the baseline, incompetent lawyers must still use some of the training tools outlined in this article. It is not acceptable for a delegating lawyer to have no understanding of the technology. This type of blind assignment would be an abdication of the responsibility to understand technology.

Train to Use Your Daily Tools: MS Word

Lawyers who are not delegating must develop technology competence by building their skills. MS Word is an ideal program to start with because document preparation, drafting, and polishing consume a considerable amount of every lawyer’s time regardless of practice area. And MS Word is more sophisticated with greater capabilities for meeting our complex needs than you might realize.

Skills You Should Have to Undertake Matters Personally

According to Darth Vaughn and Casey Flaherty, only about one-third of law students tested could perform these basic tasks in MS Word on their first attempt.

Fix footers
Insert hyperlinks
Apply and modify styles
Insert and update cross-references
Insert page breaks
Insert non-breaking spaces
Clean document properties
Create comparison document (i.e., a redline)

I would argue that lawyers should know the above skills and more:

Automatically number paragraphs or add line numbers
Insert section and paragraph symbols
Create and update a table of contents and table of authorities
Insert and delete comments
Use headings to make a document navigable and accessible

These skills are all necessary for using MS Word effectively in legal practice. But in addition to skills, it’s important to be aware that more is possible. Even if you are not going to become an advanced user, you should know that additional functions are available in MS Word, such as macros for repetitive tasks; creation of form documents; availability of a Quick Parts Gallery for reusable content; and customizable styles and templates. There are also third-party add-ins that can help save time on drafting and proofreading. The key is to know when you should start looking for a solution. Look for improvements in areas where you are wasting the most time or experiencing the most frustration. Seek out add-ins, like PerfectIt with American Legal Style or Best Authority to manage tasks in MS Word that are repetitive and ripe for error or that are important for practice, but not billable to your client.

Assessment

Whether you want to delegate or take on matters personally, assessing your learning needs is a critical first step. Prolonged yet minimal technology exposure and years of marginally-passable use does not equate to a deep understanding. Yet this superficial knowledge makes it easy to overestimate our skills. Simply recognizing the names of skills above isn’t enough. So assessment serves as a much-needed reality check that can expose our weakness, jolt us into getting the training we need, and focus our efforts on the skills we need most.

Many lawyers lack competence in MS Word but do not recognize it. If you’ve ever had to write off time spent drafting or proofreading, that probably applies to you, too. To test your knowledge in MS Word and to create a training plan to shore up areas of weakness, look to assessment programs such as the Legal Technology Assessment by Procertas and diagnostics by Legal Technology Core Competencies Certification Coalition (LTC4). After you have assessed your needs, you must take the next step of learning the material and filling any gaps.

Training

Once you have determined what technology skills you need to competently represent your client, you can choose from a variety of training resources.

Introductory Training Programs

These programs are designed to introduce attorneys to new technology and develop an awareness of essential functions, and in some cases help you develop sufficient skills. The Chicago Bar Association’s “How To…” series is a great resource for this type of program.

Task-Specific Learning Opportunities

For busy lawyers who want to perform the task immediately, just-in-time training can be the answer. These websites and programs are usually highly focused and are intended to help you accomplish one or two things quickly. They can take the form of blogs like LegalOfficeGuru.com by Deborah Sevadra and Technology Tips by Affinity Consulting Group; Facebook groups like Office for Lawyers by Ben M. Schorr; newsletters like WordTips Ribbon; and tutorials on YouTube. The ABA also publishes a number of books that are great references to keep at your desk, such as The Lawyer’s Guide to Microsoft Word 2013.

In-Depth Training and Certification Programs

These training programs are always in-depth, often customized, and can last several hours, days, or weeks. They are designed to develop your technology skills and make you proficient in the programs in a legal-specific context. Check out training programs offered by Affinity Consulting Group, Law Technology Partners, and certification programs offered by LTC4.

The Lawyer’s Guide to Word Training and Resources

The links above are only a beginning. I maintain an active list of Word training and resources for lawyers. It includes assessment and certification programs, MCLE courses, third-party software, and much more. You can download it here.

Conclusion

Technology competence is now a requirement. We all now have a duty to improve and maintain our tech skills, and mere exposure to technology is not enough.

You don’t need to be a tech wizard. Start with honest assessments of current skills. Then use that to decide whether to delegate or take matters on personally. The example of MS Word shows there is more to the software than most of us realize. However, it also shows there is more to gain from training. Reducing time wasted and time written off is good for you and your client.

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 June 29, 2017. Last updated December 18, 2017.