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On Balance by Megan Zavieh
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On Balance

Overthinking Legal Tech and the Duty of Competence

By Megan Zavieh

If you are excited about the evolution of law and technology, this is an exhilarating time to be in practice. If you fall more on the Luddite side of the tech-savvy scale, however, it can be intimidating and even frightening. After all, no lawyer wants to appear ignorant, and having the world see you are being left behind in the tech race can seem like a nightmare.

Perhaps we are overthinking legal technology when it comes to our standards of care, the ethical duty of technological competence, and the actual need to know and understand the tools available to us.

Maybe our duty to maintain competence is easier to attain than public discourse would lead us to believe. Maybe the tools we are responsible for mastering are not the new ones, but the ones we have been using for years.

Legal Tech Tends to Mean Cutting Edge

So often when the words “law” and “technology” are used together in a sentence, a description of the leading edge follows. High-profile products like LawGeex for automated contract review. Artificial intelligence in legal research like Casetext. Chatbots and voice-activated bots such as those developed by Law Droid.

There are good reasons these headline-grabbing tech innovations come to mind. They are exciting, they are big news, and their investors like to talk about them, a lot.

But more than that, new technologies signify tremendous change on the horizon for how lawyers serves clients. Some point to a massive shift in the lawyer’s role in the future, as technology literally takes over some of the more mundane lawyerly tasks.

It’s no wonder these are the tech tools we tend to talk about.

“Boring” Technology Is Still More Important

Yet, despite being far less sexy, everyday tech tools are still far more important to law practice — and to clients — than those on the cutting edge. Growing numbers of lawyers may be using shiny new technology. But every single one of us (or thereabouts) is using Word, an email client and a PDF app.

Core competence in using these everyday tools is what we need when it comes to fulfilling our ethical duties of technological competence.

In his ever-growing list, LawSites author Bob Ambrogi now has the count at 36 states adopting Comment 8 to ABA Model Rule 1.1, which requires technological competence. I continue to assert that the ability to use ubiquitous everyday tools, whether that is a stapler or a word processing program, is necessary to meet your core competence duty, with or without the Model Rule comment.

So, if the idea of tech competence stirs up fear and anxiety, realize that you are not being required to learn to code. You are simply being asked to know how to properly use such tools as the redacting feature in your PDF app. Think of it this way: When we redacted by hand, using a black marker instead of a highlighter was necessary to be competent. Now, we need to know to use the right tool to meet the standards of modern law practice — the electronic tool. This is not a sea change.

Don’t Give Up on Tech Competence

This is not a situation where being unable to create high-level legal technology platforms means you will never meet your duties. Not at all. If you are less than tech-savvy, do not give up on meeting your obligations. Instead, recognize the relative simplicity of meeting them.

We need programs qualifying for CLE credit to include seminars on using Word well (like those from Affinity Consulting’s Barron Henley). We need hands-on how-to programs on using redaction tools and creating tables of authorities. This is particularly important for solo and small firm lawyers who typically lack large administrative support teams. We need 101-level courses on security and privacy measures.

At times, we need to dial back the dialogue on legal tech and bring it back to the basics. New tools and technological innovations are fantastic. They will, without a doubt, spur further change in the profession. But they are not setting the floor on competence.

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Megan Zavieh Megan Zavieh

Megan Zavieh is the creator and author of “The Playbook: The California Bar Discipline System Practice Guide.” At Zavieh Law, she focuses her practice exclusively on attorney ethics, providing representation to attorneys facing disciplinary action and guidance on questions of legal ethics. Megan is admitted to practice in California, Georgia, New York and New Jersey, as well as in multiple federal courts and the U.S. Supreme Court. Her latest book, “The Modern Lawyer: Ethics and Technology in an Evolving World,” (ABA 2021 ) covers how to run a modern practice while staying in line with current ethics rules. She podcasts on Lawyers Gone Ethical, blogs on ethics at California State Bar Defense and tweets @ZaviehLaw.

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