Under the American Bar Association’s Model Rules of Professional Conduct Rule 1.1, lawyers have a duty to provide competent representation. Under Comment 8 to the Rule, lawyers must maintain their competence:
Maintaining Competence[8] 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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
The requirement that lawyers keep abreast of relevant technology as part of their duty of competence dates from last August.
Massachusetts’ Supreme Judicial Court’s Standing Advisory Committee on the Rules of Professional Conduct has just moved towards adopting this requirement (see Robert Ambrogi’s LawSites for more on the Mass. move, and his piece from 2012 on the ABA Model Rule change; thisLaw Technology News piece discusses the change with a litigation e-discovery focus). Other states may follow.
Whether or not your jurisdiction mandates that you stay abreast of relevant technology (yet), you should. It can make a real impact in your practice. And deserves as much of your attention as changes in law do.
To understand why, imagine this parallel situation: A highly relevant court case has come out. It’s in a jurisdiction you practice in, and covers a point of law in an area of law that often comes up in your work. For the M&A lawyers out there, thinkChancellor Strine writing on a board’s duty of care when considering a bid. Securities lawyers: underwriters’ diligence obligations. Sovereign debt lawyers:Argentina. (Litigators may have an easier time coming up with examples!) What action do you take in response to this new case?
- Nothing. You already know how to do M&A deals/complete securities issuance or bank loan transactions/litigate cases, and new information doesn’t change that.
- Glance at the case but basically ignore, including when faced with a relevant fact pattern. Again, you already know what you’re doing.
- Read the case (or at least a summary) and advise accordingly when it is relevant.
If you chose 1. or 2., make sure your malpractice insurance premiums are fully-paid. Assuming you chose 3., how is serious learning and experimentation with some of the latest law practice technology any different?
Let’s quickly consider three areas where relevant legal technology can really make an impact:
- Predictive coding / technology aided review in ediscovery. Once upon a time not that long ago in litigation-related document review, best practice for reviewing piles of documents was a combination of keyword searches to cull the collection, followed by human examination: junior lawyers putting eyes on documents. It is now documented that technology aided review yields more accurate results than human review. And it’s faster and cheaper too.
- Document drafting. How many times have you reviewed a contract and caught mistakes? Document drafting (e.g., Turner) and assembly systems (e.g., ContractExpress, Brightleaf) can help head-off some of these. Using one of these systems can also be a good opportunity to update your templates (e.g., using Koncision).
- Technology aided due diligence. Most M&A lawyers who are involved in the due diligence process can easily bring examples of diligence misses to mind. And accurate diligence matters. (To the extent you think accurate diligence doesn’t matter, why bother doing it at all?) Unsurprisingly, we have consistently seen our system catch human-missed provisions in due diligence contract review. And have evidence that use can lead to significantly faster and more accurate diligence. (Stay tuned or get in touch for more details.)
If you are a lawyer practicing in an area where this technology is relevant (i.e., you litigate cases with discovery, draft documents, or do M&A deals), and you haven’t seriously explored relevant technology, how do you think this differs from knowing the relevant law? Maybe you’re busy. Maybe you don’t care about efficiency, or don’t think you can understand the technology. If you’re like the partners I used to work with and against, you would figure it out if it was a relevant change in law or court case, no matter how busy, how long it took or how complicated. This new technology is no different—it can make a serious impact on how well you serve your clients. And so deserves your full attention.
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