Is it Legal Malpractice to “Not Be Good With Computers?”

Solo law practice guru, Carolyn Elefant, recently posted on her My Shingle blog, a letter to new lawyers about using technology and becoming technologically proficient before exiting law school. 

My Shingle Letter to New Lawyers

Now, I won’t question Carolyn’s prowess at solo practice, since she literally wrote the book on it, and I’m even surprised she chides that “You should be dragging me into the 21st century, not the other way around,” since Carolyn’s been blogging long before I’ve been lawyering.

The fact that Carolyn even has to write this post is remarkable, since I would expect many new lawyers to possess the requisite technological skills and knowledge. Yet, my experience with “fresh meat lawyers” is far too similar: they lack too few usable legal skills, and surprisingly have too few technological skills. I could close my practice and retire today if I had $10.00 for every intern, wanna-be associate, opposing counsel, or assistant who told me “I’m good at typing, but I don’t do too much with computers.”

As Carolyn points out, these new lawyers are the ones growing up with technology. New lawyers have more resources available today than any previous generation. Amazingly, even I can remember a time when I had to go the library to research a class project in the encyclopedias.

On his Law Biz Blog, Ed Poll submits his opinion that not being good with technology may constitute legal malpractice:

What Ed highlights is very relevant to today’s society. More and more, lawyers are using technology to be more proficient and provide quality services. Not being among that group has certain disadvantages and certainly doesn’t benefit the client.

Carolyn’s point is that new lawyers need to make strides to showcase other skills, since their legal products are worthless. Ed has a similar view, but is more generalized toward all attorneys. Is it reasonable to expect someone at the dusk of their career to embrace technology and accelerate? Probably not. For someone at the threshold though, or maybe in between, the necessity is very real.

Ed brings up the Canadian requirement that “lawyer[s] should serve the client in a conscientious, diligent and efficient manner so as to provide a quality of service at least equal to that which lawyers generally would expect of a competent lawyer in a like situation.” CBA Rules of Professional Conduct, Ch. 2 Rule 4. The American Bar Association promulgated Rule 1.1, which suggests a similar level of competency. Arguably, professional competence includes technical competence.

I can’t believe the number of attorneys using smartphones and tablets, yet they can’t coherently converse about non-law, tech-relevant topics. Nobody’s arguing that one needs to be in the business of computer repair. Ed and certainly Carolyn, suggest that technical knowledge about simple things like video production, blogging, websites, blogging, using RSS, blogging, and even mobile computing, is the important factor. Did I mention blogging? Don’t even get me started on the number of law firms banning or restricting an attorney’s online presence. Where’s the innovation?

Carolyn effectively pleads for new grads to be proactive about social media and technology, because these are the tools lawyers use everyday. Young lawyers need to understand the power of social media, blogs, and sites like YouTube so they can effectively counsel their clients, and if necessary, build a client base.

So, while your technological incompetence won’t get you disbarred or disciplined, you’re quickly and quietly becoming irrelevant.

7 Responses to Is it Legal Malpractice to “Not Be Good With Computers?”

  1. There is nothing in the Rules of Professional Conduct that suggests that a lawyer has a lower standard of competence if he/she is on the backside of his career. On the contrary, all the rules require that the lawyer must be competent to represent a client. And the definition of competence, by implication and reporter note to the rule, requires knowledge and competence in the use of technology in accord with the community standard. Thus, an 80 year old needs to be as competent, technologically, as a 40 year old,30 year old, etc. Blogging, social media and the like are great tools for communicating to prospective clients and marketing, in general, but don’t demonstrate legal competence. That is the key for interpreting the Rules of Professional Conduct.

  2. This was an enlightening article. As an insurance firm specializing in legal malpractice insurance, we tend to view lawyers us of technology in terms of the pitfalls and dangers. As you point out, there’s also a pitfall and danger to NOT using technology. That said, can I indulge myself in offering a bit of a counterpoint here?

    You mention that the today’s upcoming lawyers, in theory, are digital natives and comfortable with technology. That’s true, but the new generation of digital natives are also often comfortable with the fact that their whole lives are available online. In the context of a law practice, they can be too comfortable, leading them to expose confidential client data.

    So more important than the skills you mention (video production, blogging, etc), we try to tell our clients that they need to understand the fundamentals of computer security. They should use strong passwords, be careful about accessing data on unsecure networks (airports, cafes), encrypt any confidential data on their hard drives, install software that allows data to be deleted remotely from laptops and Android devices (installed by default on iPhones and iPads), be very careful about posting to Facebook (the ABA recently had an article about ethics violations related to that) and so on.

    I know your headline is a bit tongue-in-cheek, but I wanted to point out that in fact a lawyer who has a poor understanding of technology does in fact open himself up to malpractice suits. If his Android device is stolen, has a weak password and no way to delete data remotely, he could release confidential client information and be subject to genuine malpractice risk.

    So I would answer your headline question with a YES! Failure to be “good at computers” (by which I mean understand security implications) COULD open you to malpractice suits.

    • Tom, thanks for the comment. I don’t think you’re too far off my unspoken truth: security is just as important as doing. I could write a dozen-plus posts on ways that lawyers screw up online and with tech.

  3. >>”my unspoken truth”

    Unspoken? You already have lots of posts on Android security (Strong rules for lawyers comes to mind, but I know there are lots of others). So I think you mean your *spoken* rule! Whether or not people are listening is a whole different question.

    Not to take this too far off-topic and perhaps the answer to this is better served with a new post, but I’ll ask it here and await either your comment or an article on the subject!

    A year ago you recommended Lookout for the sort of data wiping on a stolen Android that I mentioned (your article here: http://thedroidlawyer.com/2012/07/is-android-safe-enough-for-attorneys-to-use/ ).

    I wonder is that still your choice, and is it worth the $30/year when Google now offers this for free if you use Google Sync? I might be missing something there in terms of what capabilities are offered by each method.

    • Tom, there’s a slew of “Lookout-type” apps available, but I generally recommend 3 to handle find & wipe: Lookout, Bitdefender, and Google Apps Device Policy. Of course, Device Policy is limited to Google Apps accounts, so it’s very limited in function, as you noted.

      Lookout is probably at the top of the list because of its features and free options, with Bitdefender hitting slack. That’s easy enough.

      I can’t stress enough the importance of having a virus protection program, regardless of what you’re doing with the phone or tablet. This is a must have app.

      I like Lookout because it gives the biggest bang for the buck (free) and $30/year for the add-on features are fanastic.

      Bitdefender’s lacking find and wipe in its free version, but its virus scan is top notch. I currently use Bitdefender on my devices (I got a free year), and I like its “low profile” on my device, in conjunction with Device Policy. Bitdefender had the best “find me” feature of the apps I tested.

  4. Sorry for the comment flurry. Should have read that page more carefully. In fact, it really only works for Google Apps I think, having read the help doc more closely. So it isn’t really a good solution when you want to truly wipe and lock a device like Lockout does. Apologies for not reading that more closely before posting.

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Jeff Taylor

I’m just an ordinary guy living an extraordinary life. I’m also an attorney and I blog about Android for lawyers. You can follow me on Twitter, LinkedIn, YouTube, or Google+.