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Beyond Ethics and Efficiency

by Joe Kaczrowski | Aug 17, 2015

Much has been made of a lawyer's ethical duty relating to technological competence under the Model Rules, whether protecting client data and communications or just generally keeping abreast of benefits and risks posed by relevant technology and changes impacting the practice of law. Similarly, vendors and tech evangelists often highlight the competitive advantage and process efficiencies offered by technological solutions, of which there are many. But a third and perhaps overlooked element is client (or potential client) expectations. 

Watch a jury trial and observe the jury when a lawyer shuffles through a stack of papers to find a printed copy of an email to put on the overhead projector (and then struggles to get it centered, focused, and blown up so as to be readable) versus when a lawyer runs everything through an iPad. Both use technology and both communicate the same information to the jury, but which is what the jury expects? Further, does the presentation method distract from the substance of the evidence? Is the jury watching the lawyer rather than studying the exhibit or listening to the narrative?

Similarly, clients may not expect you to text them, but most likely expect email communications. And they also probably assume or expect those communications to be secure and covered by privilege. Can you meet those expectations working in a coffee shop and using a free program like Dropbox? Do you need to use a VPN or a more robust document sharing and storage solution like ShareFile?

Clients surely expect their lawyers to be conversant in basic (and necessary) office technology, or more likely don't even consider the possibility that the inverse is true. The expectation is that a lawyer can properly redact a document before filing, or spellcheck a brief. However, Casey Flaherty tested that assumption and in one year reduced his company's legal bills by seventeen percent because of the inefficient or ineffective use of technology by outside counsel.

Change is often difficult, and lawyers may be resistant to new technologies impacting the practice of law. Beyond one's ethical obligations and the business reasons to adopt various technologies, the acceptance or implementation of these technologies may ultimately be a "necessary evil" for lawyers to meet their clients (reasonable) expectations.