- Some embrace technology and look for the best technologies to “turbocharge” their practice, while others fear adding new gadgets to their already-existing successful practice.
Technology has been both a friend and foe to the legal industry. Some embrace technology and continue to look for the best existing and emerging technologies to “turbocharge” their practice, while others fear the disruption and uncertainty of adding new gadgets and gizmos to their already-existing successful practice. The onset of COVID in March of 2020 forced many attorneys to both adopt and become adept with these technologies. Now two years from the “shutdown,” lawyers are slowly returning to normal, or what some now are calling the “new normal.” Lawyers of this “normal” or “new normal” have clearly implemented at least some form of technology use in their practices, and the question being asked is whether lawyers are utilizing these technologies to the best of their ability and whether or not they are satisfied with these technologies.
The American Bar Association 2022 Legal technology Survey Reports of Law Office Technology and Technology Basics and Security are comprehensive analyses of how technology is utilized in firms, and what technologies (hardware and software) is used, as well as consumer satisfaction of these technologies. To report comprehensively on these two survey reports would require a treatise in and of its own; this report condenses these two surveys to a brief overview of trends in the industry, broken down into the following demographics: solo practitioners, firms of 2-9 attorneys, firms of 10-49 attorneys, firms of 50-99 attorneys, firms of 100-499 attorneys, and firms of 500 or more attorneys.
Not surprisingly, there has been a downtrend in the percentage of respondents using a desktop as their primary computer. In 2019, 57% of respondents reported using a desktop as their primary computer. In 2022, 41% of respondents reported using the desktop as their primary computer. Fifty-six percent of respondents reported using a laptop as their primary computer, including 45% using a laptop docked with one or more monitors.
In terms of where the desktop use as primary computer comes from, 59% of those respondents are from firms of 2-9 attorneys, followed by respondents from firms of 10-49 (51%), solo attorneys (35%) and 13% from firms of 100 or more attorneys. Conversely, respondents from firms of 100 or more attorneys report that their primary computers for work are laptops (88%), followed by solo attorneys (58%), firms of 10-49 attorneys (43%) and firms of 2-9 attorneys (38%).
My takeaway? The pandemic continues to shift the paradigm from working in-office to remote, or hybrid, practice. A recent report in Boston indicates that available office space in the city is at an all-time high. It is obvious that mid and large-size firms are enticing their associates by providing them with opportunities to either work completely remotely or some sort of hybrid arrangement. As for small firms of 2-9 attorneys, the majority of these practices are most likely outside of major cities, affording the attorneys an easier commute as well as having a location where they can meet their clients and conduct transactions outside of their home.
As someone who has preached the use of multiple monitors for over twenty years, it warms my heart to see that use of this affordable and simple legal “hack” has continued to increase. Fifty-five percent of respondents report having two monitors attached to their computer, up from 47% in 2021. Every demographic surveyed reported 50% or greater usage of two monitors except from firms of 2-9 attorneys (46%). Only thirty-one percent of respondents have one monitor attached to their computer compared with 41% in 2021. Interestingly, thirty-five percent of solo attorneys reported only using one monitor, and forty percent from firms of 2-9 attorneys reported the same. Looking at the same demographic that used two monitors, it appears as if these responses are skewed. Of course, some of this could be answered by the eight percent of respondents who reported having three monitors and one percent using four or more monitors!
Looking at the “use of monitor” responses, it is encouraging to see that attorneys are using this simple system to make their practices more efficient. Multiple monitors allow a lawyer to have multiple windows or apps open at once, obviating the need to ”open a window, cut text, close a window, and paste,” just to name one misuse of time. In fact, as of this writing, I am using four open windows (Two different Tech Surveys, Microsoft Word, and an Excel spreadsheet with my data) to complete this report.
The large drop in case/practice management users in firms of 2-9 attorneys may be a troubling trend. There are likely several reasons for this. First, lawyers may be leaving mid-size or larger firms, and do not have the financial resources to acquire software when starting his or her new practice. Lawyers may fear the migration of older data to a new program, or likely do not believe they have the time to learn a new system. Perhaps millennials or “Gen-Zers” believe that they do not need software to have a profitable and fulfilling practice. Whatever the reason, it would be interesting in future surveys to examine the sharp rise of case management software in solo practitioners (32% to 45%) to the steep decline of usage among the 2-9 attorney demographic (61% to 46%).
Considering the above, The ABA surveyed users about budgeting, training, and goals of technology. Sixty-five percent of firms budget for technology, the same percentage as 2021. Fifty-one percent of firms’ technology budgets increased from 2021. In terms of annual append, solo respondents most often reported less than $3,000.00 annually on software, and firms of 2-9 attorneys spending between $1,000.00 and $9,999.00 annually. For respondents from larger firms, most respondents reported that they did not know the firm’s annual spending on technology.
Respondents’ answers to questions regarding technology training and support yet again revealed an interesting – and potentially troubling – trend. When asked whether or not lawyers are required to stay abreast of the benefits and risks of technology as part of their basic competency requirement, solo practitioners reported most likely (77% compared with 67% in 2021), followed by firms of 10-49 attorneys (71% compared with 72%), firms of 100 or more (67% compared with 74% in 2021), and firms of 2-9 attorneys (62% compared with 60% in 2021).
The availability of technology training varied considerably based on firm size. Seventy-five percent of all respondents report having some type of training available at their firm (compared with 67% in 2021, 59% in 2020, and 60% in 2019). Thirty-two percent of solo respondents and 64% of firms of 2-9 attorneys report having training available at their firms (compared with 35% and 56% respectively in 2021, 27% and 50% respectively in 2020, and 28% and 49% respectively in 2019), compared with 97% from firms of 100 or more attorneys and 79% from firms of 10-49.
When seeking assistance, thirty-eight percent of respondents turned to their IT support, followed by Google or other online resource (19%), peers (13%), vendor/manufacturer (9%), followed by bar association (7%)
What is my take on firms’ reluctance in providing, or utilizing, appropriate technology training and support in 2022? Certainly, the pandemic created a rush to acquire, implement and learn about existing and emerging technologies. This is reflected in respondents’ responses for 2020 and 2021. So why have they all but plateaued, and even declined, in 2022? And why are attorneys not utilizing all available resources to train and keep abreast of either updates to their existing technology, or the benefits of emerging technology?
While software becomes an even more integral part of a lawyers’ practice, lawyers should be familiar with their state requirements for technological competence. The ABA Model Rule 1.1 states:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
In 2012, the American Bar Association amended Comment 8 to the Model Rule of Professional Conduct 1.1. Comment 8 reads:
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, over forty states have formally adopted the revised comment to Rule 1.1, and many have now implemented a mandatory CLE for technological competency. To the extent that the majority of jurisdictions have adopted Comment 8, and the fact that many are also requiring CLE for technological competence, I believe it is important for all attorney to embrace continued training and increased understanding of the effective, as well as ethical, use of their software.
In general, the respondents to the survey seemed “somewhat satisfied” with the overall features of the software they were using, followed by “very satisfied,” then “not very satisfied,” and “not at all satisfied.” With respect to time and billing software, fifty-six percent of respondents indicated they were somewhat satisfied with their software, up from fifty-three percent the year prior. Interestingly, thirty-three percent said they were very satisfied, compared with thirty-six percent in 2021. As for case/practice management software, fifty-seven percent reported they were somewhat satisfied, as compared with sixty percent in 2021, and thirty-two percent said they were very satisfied, as compared with thirty four percent in 2021. The trend was similar with those surveyed regarding the features and functions of document assembly software.
In general, respondents’ satisfaction with the functions and features of the software they used decreased. Of course, there may be a fine line between being “very satisfied” and “somewhat satisfied,” which could be either an indication of increased user competence, a belief that the software has met its life expectancy for the attorney, an increasing dislike for the software they purchased, or something else. Of course, with the onset of the pandemic in March of 2020, many attorneys scrambled to implement software systems in place, and perhaps the learning curve has plateaued.
The following security policies were addressed in this year’s survey: email use, computer acceptable use, internet use, remote access, disaster recovery, social media, employee privacy, incident response plan, and “bring your own device.” Of those policies, the following is the percentage of respondents who had such a policy in their practice:
Of the respondents surveyed, Only 100% the respondents who worked in firms of 50 or more attorneys had a technology policy or plan in place.
The majority of respondents used some form of security tools in their practice, ranging from two-factor authentication (53%) to virus scanning (64%) to mandatory passwords (74%). Reviewing the data, it seems as if the use and implementation of encryption tools should remain a focus of concern. Of those surveyed, only 40.1% of those surveyed used encryption for their email, and 49.2 used encryption for their files. The fewest percentage of users came from firms with 2-9 attorneys (30.4% for email, 34.8% for files), with the greatest number of those using encryption being in firms of 500 or more (53.3% for email, 76.7% for files). Of course, this is most likely due to large firms’ greater budgets for technology, but small firms and solo practitioners have access to low cost, as well as free, effective encryption software.
The survey asked whether the firm has ever experienced a security breach (e.g., lost/stolen computer or smartphone, hacker, break-in, website exploit). Twenty-seven percent of respondents answered in the affirmative, forty-eight percent answered in the negative, and twenty-six percent did not know). While the responses to this question were not broken down by demographic, it seems safe to assume that those who did not know worked in larger firms. When asked if the firm had ever been infected with a virus or malware, thirty-two answered in the affirmative, thirty-four answered in the negative, and thirty four did not know.
Lawyers must make a better and more concerted effort to protect their clients’ data across all platforms of use. Be it smartphones, laptops, desktops, or whatever device you have client data stored, become familiar with the security features of each device, as well as other security features available for your use. Be it by doing research on the web, visiting the ABA Legal Technology Resource Center, contacting your local bar association, or speaking with a peer, securing your clients’ data, and keeping your hardware and software safe, is of paramount importance.
The legal industry has traditionally been resistant to change, but the past few decades has seen it been guardedly receptive to the use of existing and emerging technologies. The onset of the pandemic certainly accelerated lawyers’ use of technology, both in how they practiced as well as keep their practices safe and secure from threats. Working remotely became the norm, as one’s house became their office. Now, with lawyers returning to “normal,” or the “new normal,” it seems as if the proverbial “love affair” with technology has perhaps plateaued. While solo practitioners continue the trend of continuing to learn about technology and security, those in small firms do not appear to be as receptive. More important, however, is the notion that there remain many practitioners and firms that do not fully implement security measures to safeguard their client files and/or communications.
As we all move forth from the pandemic, we must remember from where we came, both as citizens and as attorneys. Some of us still wear masks, and some of us still sanitize everywhere we go. Lawyers should be no different. Be it as we work from home or in the office, we must practice with the understanding that we must keep our client’s files as secure as possible. Like we did in 2020, when we tried to learn as much as we could about the systems and software we used, we should continue to strive to learn the most about the features and functions of our office. Education is key, be it your own research or a CLE conference or seminar, but the survey responses make it clear to me that attorneys can do make a greater effort to have a more satisfying and fulfilling practice.