Vol. 43, No. 3

(Safely) using all the tools in the toolbox: Bars help members gain technological competence

by Dan Kittay

By providing more CLE programming and more focus on technology-related issues, state and local bars are expanding their efforts to help lawyers handle the security and privacy challenges that come with greater reliance on technology.

One cause of the increased attention is the adoption in many states of some form of the provision in the ABA Model Rules of Professional Conduct that includes wise use of technology as part of the definition of providing competent representation to clients.

"I think there's been a dramatic change in the level of understanding and adoption of technology in the legal profession over the last couple of years, particularly since the adoption of this rule. I think the rule has spurred it along,” says Robert Ambrogi, a lawyer and blogger who writes regularly about legal tech. “Just the mention of technology in the model rules serves as a wakeup call for a lot of lawyers, as their states have adopted this rule and as they become more aware of it."

Model Rule 1.1 was revised in 2012 to add Comment 8, which says, "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."

As of press time, 32 states have formally adopted the provision, either verbatim or with some modifications, according to Ambrogi's blog, LawSites. Some other states have increased their technology-related offerings for lawyers without formally adopting the Comment 8 language, Ambrogi says.

LegalFuel in Florida

Florida adopted a change to its rules in 2016 that incorporated the model rule language, and added a requirement of three hours of technology-related CLE every three years. Part of The Florida Bar's response has been to create a website called LegalFuel, which offers a large collection of law practice management and technology information to Florida lawyers, says Jonathon Israel, LegalFuel's director.

Much of the original content for LegalFuel came from the bar's former Practice Resource Institute, presented now in an easier-to-access format, Israel says. More content is being curated and created by LegalFuel's four staff members, bar vendors, and members of the bar's Standing Committee on Technology.

While the state's new rule mentions technology, the bar needed to further refine that term to specific topics that would most benefit lawyers, Israel says: "The question was, 'What is technology competence? What do attorneys need to be competent in, as far as technology goes?'"

The key topic that the technology committee came up with was cybersecurity, including securely using the cloud for client information. "How do you protect the data, and how do you protect your systems? The threats are constantly changing,” Israel notes. “We try to keep the attorneys informed about what the latest threats are, and what they need to do to protect themselves."

Focusing attention on security

Online security is a major focus of the Oklahoma Bar Association's education efforts, says Jim Calloway, director of the OBA Management Assistance Program. Calloway and his three-person department were focusing on security, privacy and other technology issues prior to the model rule's adoption in the state, and have stepped up their efforts since.

He believes the new requirement serves a good purpose in focusing attention on crucial problems that can arise if lawyers don't take steps to protect their data. "There are so many issues that present themselves today—because we're all using computers attached to the internet—that didn't present themselves in the days of papers in file folders locked in cabinets," he says.

The solution is twofold, Calloway believes: "Part of it is lawyers updating their procedures to account for greater risks, and part of it is lawyers educating their clients about how they behave with their information."

But it isn’t always easy to persuade lawyers to incorporate better security habits into their workflow, he says. "The challenge for lawyers is that most of them are very busy, very stressed, and already working a lot of hours,” he explains. “Getting their attention to change their business models is a challenge."

Noting that changing economic conditions are affecting potential clients of small and solo firms, Calloway adds, "When [lawyers] are very busy, and have a certain amount of stress, and then have income challenges on top of that, it's often hard to get their attention. That's why bars really need to redouble their efforts to provide information to members in a way that they can digest it and apply it."

One way the OBA plans to do that is by increasing its offering of 15-minute videos that contain technology tips on important topics. The bar posts the videos on YouTube for anyone to view.

Gaining expertise by adding a staff position

In California, which also has yet to adopt the model rule language, the San Diego County Bar Association expanded its technology focus by holding its inaugural Law + Tech Summit in January 2018, which featured two days of tech-related CLE, says Renee Stackhouse, chair of the  bar's Technology Committee.

And shortly after that summit, the bar hired Adriana Linares as its first member technology officer. The bar's leaders realized that knowledge about technology had become increasingly important to their members, Stackhouse explains, and they also knew that determining what was important for members to know, and how best to teach them, exceeded the committee’s own expertise.

Linares and the Technology Committee have been adding content to the bar's Law + Tech website area, as well as presenting tech-focused events and planning for this year's summit, to be held January 25-26, 2019. (Note: The summit is a team effort between the SDCBA and the Law Practice Management and Technology Section of the California Lawyers Association.)

Local and metro bars take a variety of approaches

As the SCDBA experience shows, metro bars and other local bars often play an important role in keeping lawyers current on technology—and this role can become especially important when their state adopts some form of the model rule, as both Minnesota and Tennessee have.

The Hennepin County (Minn.) Bar Association has developed a three-pronged approach to technology education, under the name HCBA Tech Practice Series, says Micah Fenlason, the bar’s sections and CLE coordinator. (Note: Because of an agreement to share staff among the HCBA, the Minnesota State Bar Association, and the Ramsey County Bar Association, some staff roles and titles may be in transition.)

Lawyers can choose from among Talks, which are like traditional CLE classroom presentations; Projects, which are hands-on workshops where participants are encouraged to bring their laptops to work with specific technologies they need for their practice; and Briefs, which are short videos/webcasts that focus on individual topics and are available on the bar's website, Fenlason says. All of these offerings are included with membership.

In Tennessee, the Knoxville Bar Association has offered its Law Practice Today Expo for 13 years, and makes sure to stay current as technologies change, says Executive Director Marsha S. Watson. The bar offers tech-related CLE and publishes videos of its programs online. Members can watch CLE videos for free if they don't need the credits for their MCLE requirements, Watson says, adding that the KBA wants to encourage its members to learn as much as possible about topics not specific to their practice area.

One new development ushered in by Tennessee’s adoption of the duty of technological competence, Watson adds, is that the KBA’s courses on lawyers’ use of Word and Excel are now approved for CLE credit—something that had been denied in the past.

Bite-size is often better

Like the HCBA, the State Bar of Texas has also taken the shorter-is-better approach with its "Tech Bytes" series of short videos on technology topics such as security, and comparisons of various types of software and hardware.

"Many of the questions that we were receiving as a section and as individual lawyers were answerable in bite-sized nuggets,” says Sammy Ford, chair of the bar’s Computer & Technology Section. “We didn't need an hour-long CLE to answer questions about things like how to properly redact a document before you produce it to the other side." Past Chair Michael Peck came up with the idea of producing the short videos and posting them on the section's web page, Ford adds.

Topics of the videos are determined by members of the section's leadership council, who also are the presenters featured in the "Bytes," Ford says; the group records videos during its quarterly meetings.

The videos are not long enough to qualify for CLE credit, Ford adds, but they are helpful "if you have a question, and have five or 10 minutes to learn something." There is no charge to view the videos.

As of this writing, Texas has not adopted the model rule language about competence in technology, but Ford says it is under discussion in the state—and he believes the requirement is a good one. "It's not an overly burdensome requirement,” he says. “The use of technology is invaluable and critical in the practice of law. It's becoming so that you really can't avoid knowing what's going on from a technological perspective."