1982. It was the best of times, it was the worst of times. It was the age of paper; it was the age when technology was emerging. We had new forms of technology before us; we had no technology with us. We were still using typewriters and we were all drowning in multiple volumes of Shephard’s Citations. In short, 1982 was nothing like the present, yet it is an excellent basis for comparison with our current circumstances.
For me, 1982 was the year my father underwent triple bypass open heart surgery. To accomplish this relatively new procedure, he was placed on a heart-lung machine, which has been described as “one of the most important surgical developments of the second half of the 20th century.” In addition, the surgeon had to cut through dad’s ribs, making him a member of the Zipper Club, named because of the long scar created by the surgery and many large staples used to close it. Surgeons would perform dad’s surgery differently now. Instead of cracking ribs, they would make small incisions between the ribs and use more advanced tools, making the procedure less dangerous and recovery far easier.
Technologically, 1982 was also a year of innovation. “Microsoft released FORTRAN (Formula Translation) for the PC (personal computer), COBOL (Common Business Oriented Language) for MS-DOS, and Multiplan for the Apple II and CP/M machines.” In addition, vendors released 1,200-bit modems and WordPerfect 1.0 products that represented major innovations in the tech world. In short, 1982 was a transformative year for technology.
For lawyers, 1982 was the year the ABA was finalizing the Model Rules of Professional Conduct, which replaced the Model Code in 1983. These new Model Rules never mentioned the word “technology.”
1982 was also the year when two of my attorney colleagues graduated from law school. At that time, law firms still used typewriters and were beginning to use word processing machines, often with large eight-inch floppy disks. Carbon paper was still common in law firms, computers were not.
My two lawyer colleagues began practicing law in a paper-based world. Both practiced for four decades before recent major events necessitated change. One attorney, whom I will call “Miles,” learned that his firm was closing in just a few weeks, and that none of his colleagues wanted him to join them in their new ventures. The other, “Benjamin,” had built a large successful firm and determined that, because he wanted to work remotely from his home, his vacation home, and the locations where his children and grandchildren lived, he could no longer rely on his extraordinarily organized paper-based world.
To that point, neither Miles nor Benjamin had developed sophisticated technology skills. Benjamin tried, while Miles boasted about his Luddite existence. The world in 2023 demanded that both men evolve.
Miles refused. Upon becoming suddenly solo, he believed that it was proper to use his wife’s 2019 MacBook laptop not only for family matters, but also for all his client data. Miles also saw no problem using this device for work, albeit without any firewall or antivirus software, and with a virtually full hard drive, while also storing client documents on Apple Drive intermingled with family videos. He also insisted on using only free software such as Apple Mail, and “storing” his client documents in folders in his email. Miles also refused to pay for any technological assistance and created his time billing at the end of the day based on his “memory.”
Because he was suddenly an orphan lawyer, Miles shared office space with a colleague, and was thrilled that his colleague had a dusty typewriter, which Miles chose to use instead of paid software such as Microsoft Word. Finally, rather than seek tech support, free or paid, Miles sought advice from his wife, a psychologist with no tech skills and no knowledge of the technology used in law firms. He believed this support was sufficient because he could use his “muscle memory” to help him deal with technology, a statement no one understood, except Miles.
On the other hand, Benjamin recognized his rudimentary skills and sought advice from skilled legal technology consultants. These experts analyzed his workflow and created a pathway to allow him to obtain the basic skills necessary to transform his paper world into a digital one in which he could still utilize similar workflows from any location. Benjamin’s transition required work, training and money, which Benjamin understood.
So, what do Benjamin and Miles and their plights have to do with my father and the Model Rules, and why are they the subject of this “Hot Buttons” column? The answer is surprisingly simple. They all reflect our need, as professionals, to evolve and invest in technology.
Assume for a moment that you are a patient requiring triple bypass surgery in 2023. Would you be comfortable with a surgeon who refused to adopt the latest medical techniques that make your procedure less risky and dramatically improve the probability that you would recover fully? Every patient would prefer a modern doctor.
While lawyers do not deal with life and death medical procedures, the law changes, and the technology necessary to provide client services has also changed dramatically. Since 1982, the legal industry has benefited from significant advancements in technology that have transformed the way law offices operate and provide legal services. Among them are 1. the use of personal computers, which revolutionized document management, legal research, and communication within law firms; 2. the introduction of word processing software, which replaced the typewriter for virtually every lawyer, except Miles; 3. the advancement of legal research services such as Westlaw and LexisNexis, which made it easier to access case law, statutes, regulations, and other legal resources, and eliminated the nightmares generated by volumes of Shepard’s Citations; 4. the advent of email; 5. document management and case/matter management software, which helped law firms operate more efficiently and, most importantly, reduced errors that could have resulted in malpractice claims; 6. the creation and evolution of e-discovery tools; 7. electronic filing in courts; 8. virtual conferencing and remote work, and much more.
Benjamin and his firm embraced all these tools, and more. Meanwhile, Miles’ former firm utilized relatively unsophisticated tools and, when presented with the opportunity, Miles proudly elected to eliminate the use of those tools and return to some methods of practice law firms abandoned decades ago.
The question remains: Are Benjamin and Miles embracing and fulfilling their duty to provide competent legal representation as contemplated by Model Rule of Professional Conduct 1.1 (Competence)? The answer is “yes” for Benjamin, who has committed himself to learning what he needs to learn to assure he can continue to provide the highest level of legal services to clients. The answer is “no” for Miles, whose aversion to technology is multiplied exponentially by his abject refusal to spend any money to modernize.
The stories of Miles and Benjamin raise a broader question: Why should any attorney care about technological competence? Medical patients would not likely remain patients of physicians who employed decades-old procedures. Further, the way courts and judges address technology is equally uneven.
Law office clients do not generally know about the “back end” of their attorneys’ offices. They do not know, for example, that Benjamin’s firm employs many of the latest technological innovations and is able to provide excellent client service. Benjamin, as the founder of the firm, handles global issues and client discussions, and delegates other processes to his partners and associates. Thus, clients benefit from his expertise and from the efficiencies his staff provides.
On the other, neither Miles nor his former firm embraced technology. To the contrary, the firm’s network was poorly designed and used economy versions of Microsoft software that required attorneys and staff to access a portal last updated in 2019. In addition, attorneys and staff used desktop PCs that were out-of-date and without the minimum software and hardware requirements necessary to properly run products such as Microsoft Outlook and Word.
Miles’ clients also did not know, for example, that he prepared their inheritance tax returns and other filings using read-only online forms provided free by the state where he is licensed. The state designed these forms to be used for “one-off” returns because they could not be saved easily without proper software, or the use of custom software for lawyers, at a cost. According to Miles, he did not need to buy software that would allow him to save the filings and revise them later. Instead, he printed the documents and had someone else scan them, making revisions of the originals impractical. By not using paid software, Miles saved money. He justified this decision, stating that if the forms had to be prepared or revised multiple times, clients would simply pay for the time spent, not based on actual time spent, but by Miles’ end-of-day estimates.
In the end, Miles and Benjamin are headed in different directions at the latter stages of their careers. Miles and Benjamin are no exceptions. They are representative of the many divergent paths that attorneys take when addressing technology, some of whom will make the effort to provide competent legal services using technology created this century, while others will muddle along using a typewriter with alacrity.
The reason attorneys such as Miles do not learn and use more up-to-date products is financial, but it is also a result of their knowledge that there are likely no consequences for their decision. A 2012 amendment to Model Rule 1.1 added a Comment that “To maintain the requisite knowledge and skill, a lawyer should keep abreast of the law and its practice, including the benefits and risks associated with relevant technology.” Nonetheless, the Comment has had no real effect.
First, lawyers can only be subject to discipline for violating the Rules of Professional Conduct, not the Comments, which are advisory.
Second, only 40 jurisdictions have adopted the technology Comment to the Rule.
Third, and perhaps most important, jurisdictions have not disciplined lawyers for failing to provide technologically competent legal services. In fact, I have located no reported decisions in which attorneys have been disciplined specifically because they violated their duty of technological competence under Rule 1.1; thus, even if attorneys have been disciplined specifically for technology errors, the instances are rare. Absent consequences from either their clients, their partners or disciplinary authorities, there is no incentive for attorneys to improve their tech skills. Additionally, most law schools have not taken the initiative to teach technology.
Lawyers know that for change to occur there must be incentives, consequences or both. Products liability lawsuits, for example, led to dramatic changes that companies would have otherwise resisted. In 2017, for example, General Motors paid $120 million to settle claims relating faulty ignition switches that led to 124 deaths. As a result, changes were made.
Conversely, because lawyers are not subject to disciplinary actions based upon technological errors, they ignore the issue. Similarly, my research reveals that only a handful of law school curriculums include a technology component, with Suffolk University Law School’s legal technology and innovation concentration being one of the rare exceptions.
Even high-profile cases do not seem to lead to change. Consider Steven Schwartz, the New York attorney who used ChatGPT, the artificial intelligence (AI) platform, to prepare a brief that he filed in Federal Court, without verifying that the citations were accurate. As is now well-known, the citations were bogus. Although Schwartz has not been disciplined by New York State disciplinary authorities, the federal judge overseeing the case fined him $5,000, a nominal amount for conduct that was deemed negligent, lazy and demonstrated a lack of technological competence.
Technological incompetence is not limited to attorneys. Judges also seem unaware of technology, particularly with the emergence of generative AI, the latest form of AI, and the one that led to Attorney Schwartz’s troubles. On June 6, 2023, for example, an 84-year old federal judge issued an order stating that “If any attorney for a party, or a pro se party, has used Artificial Intelligence (“AI”) in the preparation of any complaint, answer, motion, brief, or other paper filed with the Court and assigned to [the Federal Judge], they MUST, in a clear and plain factual statement, disclose that AI has been used in any way in the preparation of the filing and CERTIFY that each and every citation to the law, or the record in the paper, has been verified as accurate” (emphasis in original).
This order demonstrates that the Court is struggling to understand the issues of technological competence. The Schwartz matter, upon which this order is presumably based, relates to generative AI––AI that can generate text, images or other media by learning the patterns and structure of information entered into the training data. The judge’s order does not recognize the difference between generative AI and discriminative AI, the latter of which has been used for decades without any concerns for such things as spam email detection, credit scoring, medical diagnosis, financial fraud detection, weather forecasting and voice recognition (such as Siri and Alexa).
Technological competence remains a crucial building block for improving law office efficiency and assuring that law firms can provide the best service and obtain the most beneficial results for clients. Until there are consequences for the failure of attorneys and others to reach a baseline level of understanding and competence, lawyers like Miles will continue to enjoy using a typewriter while boasting that they use “muscle memory” to enhance their technological skills.
