Technology poses a challenge to some lawyers

By Bennett Loudon
BridgeTower Media Newswires

New developments in technology may be overwhelming the ability of the average lawyer to stay ahead of the curve.

“Technology is integrated into every aspect of law practice. You cannot really effectively practice law without using, or knowing about technology in some way,” according to Robert J. Ambrogi, a Massachusetts lawyer.

“If you are going to survive as a lawyer, if you’re going to remain competitive as a lawyer, you need to be ... minimally competent at least at using technology in your practice, or understanding your clients’ technology,” Ambrogi said.

The American Bar Association and 35 states have recognized the ethical responsibility of attorneys to understand the impact of technology on their clients and in their legal practice, according to Ambrogi.

But many lawyers still find it difficult to stay on top of all the ways technology impacts their practice, their clients and specific cases.

Ambrogi is a podcaster, blogger and frequent speaker on ethics and technology for lawyers.

“The fact of the matter is that technology has changed really dramatically, in particular over just the last decade of law practice,” he said.

Ambrogi said he has counted more than 700 new legal technology startup companies within the last five years, and he believes there are many more.

“We live really in a time of just unprecedented innovation and development in terms of technology,” he said. “I think the reality is that a whole lot of lawyers have not kept pace with the development of technology. In fact, the practice of law has not kept pace with the technology.”

Ambrogi said he’s not just referring to advanced subjects like artificial intelligence. Many lawyers don’t know how to do relatively simple tasks such as encrypt an email, hide metadata in a computer file, or properly redact a document so the hidden text can’t be revealed.

In 2012, the American Bar Association amended its rules to say that lawyers should stay on top of changes in the law and its practice “including the benefits and risks associated with relevant technology.”

So far, 35 states have adopted the rule in some form.

Although the ABA downplayed the significance of the change, Ambrogi said it was a significant event.

“I would submit that in fact this was really a sea change in terms of lawyers beginning to understand that this is serious, that they need to understand technology ... not just the technology that they’re using in their practices, but that their clients are using in their businesses and personal affairs,” Ambrogi said.

The ABA has never clearly defined the term, “technologically competent.”

The State Bar of California issued an ethics opinion that all lawyers, in every case, should consider potential e-discovery issues. But many lawyers simply don’t have the technological skills and knowledge to conduct such a thorough assessment.
Lawyers may use third-party vendors to assist with such evaluations, but the attorney is ultimately responsible to supervise all aspects of a case.

“I question how you can supervise what you don’t understand,” Ambrogi said.

Ambrogi said that without a thorough knowledge of data protection and data security issues, it’s not clear how an attorney can fulfill their duty of confidentiality.

In 2017, the ABA issued an opinion that lawyers must evaluate the data security and privacy issues in a case to determine if encryption and other data security measures are needed.

But such an evaluation requires a working knowledge of data privacy and protection and security — something that few attorneys have, Ambrogi said.