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Tech Competency: A New Standard

Tech Competency: A New Standard

By Fabian Horton

Practice Management Technology 

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Snapshot

  • Technological competency is a new standard that brings with it ethical and professional responsibility obligations.
  • Lawyers should start building their skills and knowledge in technological competencies that are relevant to their area of practice.
  • Failure to attain a relevant level of technological competency could see a lawyer facing professional responsibility sanctions.

 

Imagine these scenes: you are sitting in a law school lecture and the professor is describing the latest amendments to the Digital Currency Act.1 Or you are undertaking practical legal training and your mentor is explaining the latest version of the Australian conveyancing software system. Or you are undertaking a mandatory practice management course in which you are to reflect on the revised ethics guidelines for cyber breach disclosure. Or finally, you are in a continuing legal education seminar and the presenter is outlining the latest Technology Assisted Review (TAR) algorithm that has been accepted by the courts for discovery purposes. While these scenes might seem fanciful, it is likely that in the not-too-distant future they will be the reality for law students and lawyers. And this reality raises an extremely divisive question: what does this mean for lawyers and the skills they require to do their work?

Tech knowledge expected

In Australian jurisdictions there are indications that an understanding of technology in a legal context is now expected. The Federal Court of Australia Practice Note GPN-TECH2 states the following:.

2. The Court embraces the use of technology in proceedings and in its wider operations.

2.1 The Court views technology as an important tool to assist in achieving the Court’s key objective of quick, inexpensive and efficient resolution of proceedings. However, the Court acknowledges that the use of technology, if inappropriately applied or not properly managed, can itself have the potential to be expensive and to reduce, rather than increase, efficiency.

The Supreme Court of Victoria Practice Note SC Gen 5 Technology in Civil Litigation states:

4.1 The use of technology in civil litigation facilitates the just, efficient, timely and cost-effective resolution of the real issues in dispute. The Court expects parties to acquit their obligation to ensure costs are reasonable and proportionate by employing technology to save time and costs wherever possible.

4.3 Principle: The inability or reluctance of a lawyer to use common technologies should not occasion additional costs for other parties. Assumption: The use of common technologies is a core skill for lawyers and a basic component of all legal practice, whether provided in house or through a third party provider.

These practice notes demonstrate that there is an expectation by the courts that practitioners bring to the dispute resolution arena the benefits that technology has to offer.

The American Bar Association (ABA) has taken this one step further. It has acknowledged the importance of understanding technology in practice and has included in its Model Rules of Professional Conduct a duty that lawyers be competent not only in the law and its practice, but also in technology. Specifically, the ABA Comment 8 to Model Rule 1.1 states:

“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.” (Emphasis added.)

While most of the US states have adopted the ABA Model Rule Comment 8, no Australian variant of lawyer conduct rules has gone to similar lengths. It is acknowledged however that as the world enters the so-called “fourth industrial revolution”,3 lawyers will need to employ new skills in every aspect of the profession. These new skills can be contextualised by referencing them to the three tech-law domains: the Tech and Legal Industry domain (the Legal Profession Disrupt); the Law of Technology domain (the Legal Code Disrupt); and the Tech-Law Culture domain (Legal Culture Disrupt).4

Technology in legal practice

The first area that requires technology skills is the use of technology in the way we practise law. One of the most obvious examples of this is legal research. The law library is becoming less of a physical repository of paper and more of a virtual repository of knowledge. Lawyers need to learn new computerised legal research skills to access this knowledge. This calls for an understanding of things such as search queries and databases. Knowledge once not required by lawyers, but now a fundamental part of a lawyer’s skill set. Other examples such as e-filing, online searches and client portals are now so commonplace that many lawyers would not know of a time without them.

More specific technology skills are now also becoming essential. In litigation TAR is gaining greater recognition in the Australian courts5 and it may not be long before we catch up with the US in considering e-discovery as black letter law.6 There may even be calls to stop calling it e-discovery and to acknowledge that TAR is just a normal part of discovery.7 On the side of transactions, the same will soon be said about land dealings, which are moving towards being fully electronic in Victoria by 1 August 2019.8

Building on that, the shift towards a fully implemented electronic conveyancing platform is under way and so is the move towards the dropping of the soon-to-be tautologous term “electronic”. And it is not just the simple legal processes that are making the change. Emerging legal technologies such as smart contracts9 and augmented reality courtrooms10 are making the practice of law almost unrecognisable from what it was even 20 years ago.

Understanding when and how to use these technologies is paramount to being a competent lawyer. As seen in the court practice notes, not using, or the inappropriate use of, technology can increase costs. It is not unrealistic to expect that these issues may be the centre of future costs arguments.

The law of technology

The second area in which lawyers must gain new skills is in understanding the direct relationship between technologies and the specific laws that govern them; or vice versa, how technologies create legal dilemmas. The law has long been accused of lagging behind technology.11 It stands to reason that if lawyers and policy makers do not understand technology then it is going to be difficult to make laws that appropriately deal with the issues that technology brings.

As technology continues to upset the status quo of old and new laws alike, lawyers will be called on to work through the issues and provide solutions. While experts are available to help with esoteric areas of technology, without an understanding of the underlying concepts of technology, particularly information technology, lawyers will struggle to find meaningful and effective solutions.12 Society and clients also look to well-informed lawyers to help steer sensible technology-related policy that leads to good law.

As defenders of the rule of law, lawyers must be able to critique policy to ensure that in a technology-immersed world fundamental rights are not being undermined.13 As the law looks to regulate complicated technologies such as driverless cars and virtual currencies, lawyers who understand the building blocks of technologies will be increasingly looked upon as the real experts.

The tech-law culture

The third area of technology skills and knowledge that lawyers need to acquire relates to the culture that society has built around technology. Law and lawyering are influenced by a multitude of factors including culture, history, politics and economics. As part of the ability to critique policy and law, lawyers must have an understanding of the socio-legal reality that technology creates. Clients are fully immersed in a hyperconnected world with everything from their mobile phones to the 24-hour news cycle. As such, clients’ expectations have changed. They expect faster, more efficient services from lawyers and the law. The rise in popularity of NewLaw law firms, online legal services and legal chatbots is further evidence of society expecting different things from lawyers. Lawyers need to acquire the knowledge and skills to keep up with these changes. Some law firms have even taken the step of creating their own innovation centres to look at new ways of servicing clients through technology.

Mandatory technology training?

As the legal profession undertakes the paradigm shift from the analogue to the digital, it is right for lawyers to ask questions about the requirements for technological skills. Can it then be said that lawyers need to undertake technology training? In early 2017 the Law Society of New South Wales in its report on the future of the legal profession identified the need for future law graduates to be equipped with technological and business skills to meet changing demands.14 It seems to follow that as the requirement to use certain technologies rises (such as the requirement to use electronic settlements in conveyancing) legal regulators will stipulate that pre-admission legal education include some mandatory technology based training.

Whether mandatory or not, as outlined above it is inevitable that lawyers will need technology skills to competently do their work. The question of what technology skills should be taught is one that will take some time to be debated. It is likely that there will be calls for baseline technological competencies that all lawyers should have. To this end a level of what is called “digital literacy” will be required. Digital literacy is the ability to competently use digital technologies and is now considered a foundation skill in many modern digital economies.15 These baseline competencies will be common throughout the profession and would be highly transferable. Examples might include information management, cyber security and cyber ethics. Different areas of practice will require different technology competencies; litigation, transactions, policy and practice management all have tasks that are unique and technologies particular to their area. As technology becomes more complex and embedded in the operation of law, more specific training will be required for lawyers.

Next steps for the profession

For law students who are still building their legal knowledge and are yet to come to terms with (for the most part) the practical realities of the profession, teaching specific legal technologies may prove to be incongruous. The teaching of specific legal technologies (such as e-conveyancing systems) would prove more effective taught in the Practical Legal Training environment. Law students would focus on general digital literacies that relate more to the general legal skills, examples being research and information management. On the other hand, it is highly probable that law schools will soon have to teach some aspect of technology as part of the teaching of specific laws. The operation of digital signatures is a case in point.16

Admitted lawyers have what could prove to be the more difficult task of laying technological knowledge over pre-existing legal knowledge. This can cause difficulties as it may require a reframing of how the lawyer thinks and operates. Early career lawyers (ECLs) should actively seek to integrate new technologies into their practice as early as possible. As their legal knowledge increases, ECLs should seek to increase their technological knowledge within their specific practice area. As for experienced lawyers and practice managers, it will be expected that they will have a broader understanding of technology and its impact on the law. Experienced lawyers should review their entire practice and where required, obtain extra training to ensure that any technological deficiencies are adequately accounted for. Experienced lawyers might need external experts to help them acquire the requisite knowledge.

As the world continues to innovate, technology will continue to have an impact on the law. This will place pressure on lawyers to keep up with the technological environment to ensure their practice is operating efficiently and that they are maintaining professional obligations. To this end, technology training will need to be a permanent part of every lawyer’s continuing education. Whether technological skills will become mandatory is yet to be seen. What is without doubt, though, is that lawyers must face the new reality that to practise modern law they must be both legally and technologically competent.



 
Fabian Horton is a lecturer at the College of Law Australia and director of ConnectLaw. He is a member of the LIV Technology and the Law Committee.

1 This is a fictitious act for illustrative purposes.
2 Federal Court of Australia, Technology and the Court Practice Note (GPN-TECH).
3 Klaus Schwab, "The Fourth Industrial Revolution: what it means, how to respond" (World Economic Forum, 2016) www.weforum.org/agenda/2016/01/the-fourth-industrial-revolution-what-it-means-and-how-to-respond
4 See Fabian Horton, "The Three Legal Disrupts" (2015) 89 (6) Law Institute Journal 33 for an in-depth analysis.
5 McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No 1) [2016] VSC 734 (2 December 2016). See: Supreme Court of Victoria, "Technology Assisted Review plays key role in litigation", (Media Release, 14 December 2016, Supreme Court of Victoria) www.supremecourt.vic.gov.au/home/contact+us/news/technologyassistedreviewplayskeyroleinlitigation.
6 Rio Tinto PLC v. Vale S.A. et al., 14 Civ. 3042, 2 (New York, 3 March 2015).
7 Bob Ambrogi, “We don’t call it e-discovery any more, it’s just discovery, says Mollie Nichols of Cleary Gottlieb @BigLawBiz @CatalystSecure #blbediscovery” on Bob Ambrogi Twitter (24 February 2017) @bobambrogi.
8 Land Use Victoria, “Customer Information Bulletin 166” (June 2017), Victorian State Government, Department of Environment, Land, Water and Planning.
9 Sol Dolor, “New smart contract framework seeks to marry automation and need for lawyers” Australasian Lawyer, 19 July 2016, www.australasianlawyer.com.au/news/newsmartcontractframeworkseekstomarryautomationandneedforlawyers219868.aspx.
10 Jacob Gershman, “Virtual Reality Research Aims to Transport Jurors to Crime Scenes” The Wall Street Journal (online) 24 May 2016 blogs.wsj.com/law/2016/05/24/virtualrealityresearchaimstotransportjurorstocrimescenes.
11 David Mercer, “Technology and the law: dealing with the ‘law lag’”, The Australian (online) 4 July 2011 www.theaustralian.com.au/archive/business/technology-and-the-law-dealing-with-the-law-lag/news-story/b312d05074f757b67cfbe74d9d85615c.
12 An analogy of this problem would be trying to explain algebra to someone who cannot count.
13 For an example of the issue see: Peter Jean, “Prime Minister Malcolm Turnbull says privacy concerns can’t prevent the hunt for terrorists online”, The Herald Sun (online) 13 June 2017.
14 See The Law Society New South Wales Commission of Inquiry, The Future of Law and Innovation in the Profession (FLIP) Report. (2017). See also Pallavi Singhal, “You’re going to get left behind: What some law students aren’t being told”, Sydney Morning Herald (online) 22 May 2017, www.smh.com.au/national/education/youregoingtogetleftbehindwhatsomelawstudentsarentbeingtold20170518gw7ur4.
15 Australian Government Standing Council on Tertiary Education, Skills and Employment, National Foundation Skills Strategy for Adults 2012. Australian Curriculum, Assessment and Reporting Authority, “The Australian Curriculum: Technologies” www.australiancurriculum.edu.au/technologies/introduction. OECD (2012a), Literacy, Numeracy and Problem Solving in Technology-Rich Environments: Framework for the OECD Survey of Adult Skills, OECD Publishing, dx.doi.org/10.1787/9789264128859-en.
16 See Stefanie Garber, “E-signatures: Spelling it out” (26 May 2016) Lawyers Weekly (online) www.lawyersweekly.com.au/opinion/18643esignaturesspellingitout.

 


Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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