For the past 30 years, the American Bar Association has produced the premier legal technology survey of lawyers, the ABA Legal Technology Survey Report. The 2021 Survey included 313 questions divided into five separate questionnaires. Members of the ABA Law Practice Division analyzed this raw data to provide a series of articles for ABA TechReport. Drawing from a sample size of 40,578 attorneys, the "Technology Basics & Security" volume tabulated responses from 425 private practice lawyers who are members of the American Bar Association. Using this data we are able to analyze trends with regard to existing technology training in the legal industry, highlight areas for improvement, and identify opportunities for the future of legal technology training. Given the large sample size, the database can provide insight into the trends that are shaping legal technology.
Demographics
Firm
The firm sizes of the respondents were as follows:
- 24% solo firms
- 20% firms with 2-9 attorneys
- 20% firms with 10-49 attorneys
- 6% firms with 50-99 attorneys
- 15% firms with 100-499 attorneys
- 15% firms with 500+ attorneys
Firm size is a particularly significant consideration as larger firms typically have greater budgets for investing in legal technology and resources for training. 30% of respondents from firms of 100+ attorneys reported over $20,000 spent on software (though 70% were unaware of their budget), versus solo and small firms (2-9 attorneys) that spent between $1,000-$9,999. Obviously, the cost per person would be less at the larger firms, but with the growth of the legal technology market for solo and small firms, the opportunity to access such tools has increased with small firm solutions coming in at a lower overall price point. With increased access to legal technology comes the need for expanded training.
Age and Experience
The average age of all respondents was 57. Interestingly, more than 60% of respondents have been practicing for 30 years or more, and of those, 72% are in solo firms. Respondents who are digital natives (typically seen as those born just after 1980 who grew up with access to personal computers and the internet) made up 13.6% (ages 25-39).
Competency
In 2012, the ABA officially added Comment 8 to the Model Rule of Professional Conduct 1.1 which states: “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.” To date, 39 states have adopted the Duty of Technology Competence.
When queried if lawyers are required to stay abreast of the benefits and risks of technology as part of their basic competency requirement under their jurisdiction’s enactment of the rules of professional conduct, 68% responded yes (compared with 67% in 2020, 64% in 2019, and 62% in 2018), 14% responded no, and 19% did not know. The increase in affirmative responses does align with the addition of six states which have newly adopted the rule or incorporated the requirement in some manner since 2018. However, now 78% of the states in the United States require technological competency with many others in some stage of the process to adopt the rule as well. Independent of whether the rule has officially been adopted, there should undoubtedly be an obligation upon attorneys to be technologically competent and embrace this advancing field.
Selecting Solutions
An important consideration regarding competency is whether attorneys have input into the types of technologies they use. 74% of respondents said that they were involved in the selection process for the technologies employed at their firm (which is down from 81% in 2020). The breadth of technology solutions for law firms today is staggering. There are hundreds of law practice management software alone. Analyzing the functionality, usability, and integration with existing systems is a preliminary part of training.
However, barring solo practitioners (98% reported having input in the selection of their technology), you don’t want all employees of the firm using different tools. This degree of heterogeneity lacks efficiency, could account for unnecessary spending, and at worst could open the practice to exposure from things like conflict of interest. Having a clear process to evaluate the solution aligned with the needs of the firm is critical. A committee of all potential users from attorneys to administrators should be formed first, detailing the unmet needs, identifying existing solutions and any applicable issues, and then providing specific recommendations of solutions to fill the gaps. Such considerations may include intake procedures, client information, scheduling, secure communications, document sharing, time tracking, billing, reports, and integrations with existing solutions. Finally, a selection committee (94% of managing partners select firm technology) should analyze the budget and procure the requisite software and equipment.
Once the firm has outlined the criteria how does one evaluate specific solutions? Colleagues are the top source for assistance in identifying a specific solution with 88% of respondents reporting that they turn to their peers, and 35% of those found peer input to be “very influential.” 81% rely on CLEs and legal conferences, 79% on expert reviews, 78% on staff feedback, 75% online customer reviews, 73% webinars and online demonstrations, 72% try free trials, and 71% use consultants. Consultants and expert reviews tied for the third most influential consideration in making technology purchasing decisions.
In order to ensure that all members of the firm are competent in implementing these new solutions, an associated training program is critical. Only 59% of respondents stated that they felt “very comfortable” using the firms existing technology and only 22% of respondents strongly agreed with the statement that they have received adequate training on their firm’s technology. Investing in solutions only to have them underutilized to their fullest extent due to lack of training is inefficient and wasteful. These tools increase efficiency and accuracy but neither can be accomplished if they are not properly employed. Assuming that employees are using tools merely because they are available is not supported. Mandatory and ongoing training assists in increasing competency, use, and comfort.
Technology Training
So how does one develop and maintain technological competency? Ideally, this begins at the law school level, but even after graduation technology is ever-morphing, requiring continual education. Technology training availability varies widely based on firm size. 67% percent of all respondents report some type of training available at their firm (compared with 59% in 2020, 60% in 2019, and 57% in 2018). 35% of solo respondents and 56% of firms of 2-9 attorneys report having training available at their firms, compared with 71% from firms of 10-49 and 99% from firms of 100+ attorneys. The trend noted in the data was the larger the size of the firm, the more likely that technology training was available. Though there was an increase in access at smaller firms, it is certainly not adequate to support a modern practice.
Technology must also be continuously evaluated to assess if existing technologies being actively employed at the firm continue to provide the desired benefit and determine if there are emerging technologies that may provide opportunities to perform work more efficiently. Only 21% of respondents stated that receiving training on emerging technology is very important, 44% reported it is somewhat important, and 35% did not believe it to be important. Staying abreast of new and relevant technologies should have a place in practice. If a solution can streamline legal representation it should be implemented and not ignored. Regulations are actively changing and growing one's skill set to align with what’s available is important. Bill Gates, a co-founder of Microsoft, is quoted as stating, “Information technology (IT) and business are becoming inextricably interwoven”. This is true in all areas of IT and clearly in the legal technology realm. Maintaining competence in legal technology will be requisite for modern legal practice.
Support
Ideally, you’ve selected a solution that will continue to expand its offerings as opposed to the need to overuse integrations. Accordingly, ongoing support is important. Even with adequate training, we have all run into issues using technology tools. Larger firms have internal technical support staff to assist (which has increased from 35% to 48% over the past four years). Presumably, as firms rely more on technology, they realize the necessity of having appropriate competent staffing with 94% of firms of 100+ attorneys and 61% from firms of 10-49 attorneys reporting onsite IT support. Unfortunately, with only 8% of solo attorneys and 16% from firms of 2-9 attorneys, there is a large population that has to either rely upon their own troubleshooting abilities or seek support from other sources. Only 4% reported turning to the vendor, which seems surprising as presumably if you don’t have internal support, the vendor would be best equipped to assist. Users were more likely to turn to an online resource according to 9% of respondents, and reliance on third-party consultants has steadily decreased from 30% to 22% over the past four years. Part of your technology plan should include detailed steps of what to do in the event of an issue. Who do you contact? How can they help you? Once you rely on technology to run your practice downtime can have significant negative effects. You must prepare a rapid response plan and all members of the firm should be trained with regard to the process.
Cost and Considerations
Technology is an investment that should be carefully budgeted. Most software is delivered as a SaaS (software-as-a-service) model which translates into ongoing/recurring fees. There is also the time investment in training. We have seen a steady increase in the budget for technology from 2018 at 57%, 2019 at 60%, 2020 at 62%, and 2021 at 65%. 49% of firms’ budgets for technology have increased from the previous year depicting the greater role that technology has in the practice and commensurately the percentage of the budget allocated. Solo lawyers identified their largest technology expense over the next 12 months as hardware while large firms of 500+ attorneys stated that security would be their top spending priority. Mobile technology was the leader in specific types of technologies followed by marketing and litigation technologies. On average, only 5% of the spending was for software development highlighting the “off the shelf” solutions that law firms are selecting. This may also reflect that customized software may not be necessary.
Respondents were asked how much they spend annually on hardware for their practice. On average, respondents spend $10,433 on law firm hardware (compared with $9,043 in 2020, $8,432 in 2019, and $6,853 in 2018) and 15% report spending more than $20,000 annually. The 2021 Survey may have also been impacted by the global COVID -19 pandemic with law firms spending more on hardware as more attorneys were working remotely.
With regard to specific software spending, on average, respondents spent $11,253 on practice management software (compared with $10,127 in 2020 and $9,329 in 2019). 17% report annually spending more than $20,000. 80% of solo respondents reported spending less than $3,000 annually on software, respondents from firms of 2-9 attorneys most often report spending between $1,000-$9,999 annually on software (49%), respondents from firms of 10+ attorneys mostly reported that they did not know. Accordingly, data from larger firms that would have a larger budget are not well represented in the average.
Policies and Procedures
With the ever-increasing reliance on technology, 83% of respondents report that their firms have some form of policy governing technology (compared with 77% in 2020, 74% in 2019, and 71% in 2018). These policies and their inclusion consist of: use of personal technology (32%); incident response plan (36%); employee privacy policy (44%); social media policy (48%); disaster recovery business continuity (48%); internet use policy (56%); remote access policy (56%); computer acceptable use policy (57%), and e-mail use policy (60%). With the creation of any policy, ensuring employees are aware of the requirements and are able to comply through training remains requisite.
There is certainly a distinction between software and hardware to be made. Hardware and software have different policies depending upon the practice. Most software is now delivered in the cloud and devices are able to run programs whether created for PC or Apple. Many firms have invoked a “choose your own device” policy acknowledging that the user will be more productive and efficient using either the PC or Apple platform of their preference. Gone are the Blackberry days of firm devices and now, on average, 81% of firms permit their employees to choose their own smartphone and 82% of respondents’ firms allow personal mobile devices, such as tablets, laptops, and smartphones to access the firm’s network. However, only 55% reported that there are restrictions to such access, 32% reported that there was a formal policy, and 27% stated that their firm allows access without restrictions. There is an obvious convenience associated with not having to carry multiple devices, but firms should certainly ensure the security of any device being used to perform firm work. Accessibility has similarly been impacted by the COVID-19 pandemic with many attorneys working remotely.
Security
Aside from efficiency and cost considerations, security is always a major concern of employing technology, especially in the legal realm. Respondents were asked whether their firms have a variety of security tools. On average, 81% of firms use spam filters, 75% firewalls, 73% anti-spyware, 70% mandatory passwords, 70% e-mail virus scanning, 69% desktop virus scanning, 67% pop-up blockers, 62% network virus scanning, 52% firewall, 50% encryption, and 47% two-factor authentication. There are a number of security solutions that offer robust single security solution like McAfee or Norton. Employees also need to be educated on how to use the tools, when to run a scan, the importance of two-factor authentication, employing a password management tool (31% of respondents report that they use a password management tool compared to 26% in 2020, 21% in 2019, and 24% in 2018) and who should be contacted, and immediately what to do if you identify a potential breach. The process is a major part of protection.
How worried should you be? 25% of all respondents report that their firms have experienced a security breach and 29% of respondents report that their law firm technology has been infected with a virus, spyware, or malware. 36% report that this intrusion resulted in downtime, 31% percent report that it resulted in consulting fees for repair, 25% of respondents report that the security breach resulted in notifying law enforcement of the breach, 24% resulted in notifying clients of the breach, 13% resulted in the destruction or loss of files, and 7% achieved unauthorized access to sensitive client data. It is not just large firm leaks like the Panama Papers that are targets. Firms of all sizes have been affected by security breaches. Using tools and technology to back up and protect documents can provide safety mechanisms in the event of a breach. Making sure all employees are effectively using these systems is critical. One careless mistake can open the firm to attack.
Conclusion
Having a base level of competence with regard to technology to be employed in the practice of law is obligatory. Deciding on what types of technology to employ should be done through a thorough firm-wide analysis of need and value. Training should be mandatory and often, to ensure that the tools are being properly and adequately utilized. Employing the highest level of security is requisite. Clear guidelines in the event of an issue are incredibly important. Keeping abreast of emerging technology should be part of your competency program. Technology is here to stay. Use it to your benefit—don’t ignore it as an adversary.