The New Duty of Tech Competence: 3 Reasons It Comes Down to Clients

Jan 22, 2020

New Duty of Tech CompetenceFor the first time, an official reference to ‘technology’ and ‘technological competence’ has appeared in the Federation of Law Societies’ Model Code of Professional Conduct. Why is this important, and what does it all mean for lawyers?

There’s a lot to parse through here, but in the end, it all comes down to the client: How can technology affect your representation of them? And for that matter, their assumptions about you?

The new breed of client is much more tech-savvy and expects the same from their legal representation.

Of the many areas covered by the Model Code, by far, the most extensive is Chapter 3 – “Relationship to Clients”. Not surprisingly, this is where the Competence rule (3.1-2) resides.

The amendments include commentary that begins:

[4A] To maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer’s practice and responsibilities.

Let’s have a look at three important areas this new directive will impact.

Cybersecurity

Protecting client data has always been a staple of any lawyer’s code of conduct. But today, with so much personal information living in the digital world, the chances for client data to be compromised are far higher.

The need to research and implement cybersecurity technology for your practice is implied under the Confidentiality clause (3.3), and now stated more clearly:

 A lawyer should understand the benefits and risks associated with relevant technology, recognizing the lawyer’s duty to protect confidential information set out in section 3.3.

Keeping Costs Reasonable

Streamlining workflow, for instance through automation (e.g. document assembly and management), optimizes your time and increases productivity. Clients expect lawyers to use technology to effect faster and more cost-efficient service.

This is an area of technological competence that was recently brought to the fore after several cases in which recovery of costs were reduced by a judge for failing to use legal technology to save time on trial preparation.

Improving the Client Experience

Added commentary [4B] states, in part:

The required level of technological competence will depend on whether the use or understanding of technology is necessary to the nature and area of the lawyer’s practice and responsibilities…

Taking into account the increasingly connected world we live in, it would be difficult to imagine a scenario where even the simplest use, access to, or understanding of technology would not be necessary in a legal matter.

A few that come to mind:

  • Online calendar/scheduling
  • Video meetings (recent UK studies have found that 65% of millennials and Gen Zs prefer to communicate digitally rather than in-person)
  • Technology aids in the courtroom

For the more advanced, the duty of technological competence could include machine-learning (AI); for the mainstream, it could be the cloud, or document automation. The line can be fluid, depending on the circumstances. But it always comes back to clients.

Protect them, don’t overcharge them, engage them. That’s your real duty. Technological competence can help you accomplish it all.

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