Do you commit malpractice ... when it comes to technology?

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Published on 11/20/06

Each year the American Bar Association's Legal Technology Resource Center releases a survey to assess how lawyers in private practice are using technology in their law offices.

As reported in Law Technology News, the new survey asserts that only 11.7 percent of lawyers use trial technology. Earlier surveys have shown similar low usage rates for case management software (18 percent) and document assembly software (30 percent).

Why? Lawyers contended that they distrust new technology and are overwhelmed by too many choices.

I have long believed that the lawyer who does not use at least the minimum amount of technology may be committing malpractice per se. One of the Rules of Professional Conduct requires that a lawyer be competent to handle a given matter, measured as the standard of care in the local community. When you face lawyers who are significantly more sophisticated in the use of technology, that is the standard of care against which you are measured.

If you don't use technology effectively for trial support, case management and the like, you may be perceived as willfully less competent than your competitors. And that's malpractice.

Extend the concept further to other ethical responsibilities as they relate to technology:

  • Files

    Lawyers are required to retain client files and important documents and have an ethical responsibility to keep them safe. In today's law office, these are typically produced by computer. Do you make it a point to back up all computer data and store important records and documents off-site? Do you have a full inventory of all electronic client files and papers? Every document you produce and save on the computer should be backed-up on a regular basis. If you don't do this, and you lose the files in a disaster, you are failing your ethical responsibility to the client.

  • Security

    Disaster isn't the only thing that could compromise client files. For example, your computer system could be compromised by a hacker, or otherwise threatened by criminal activity. An annual survey of businesses and professional organizations conducted jointly by the FBI and the Computer Security Institute says that 90 percent of survey participants have suffered a computer security breach. Failure to use the most up-to-date firewalls and protection software might support a malpractice claim.

  • Efficiency

    I have surveyed law firms regarding their technology practices and found that while the majority of large law firms upgrade their computers and software every two to three years, many small firms and sole practitioners go as long as six years between upgrades. They cite cost, time to learn and implement the new technologies, and lack of certainty that new technology will increase efficiency and work quality. None of these reasons is sufficient to protect a firm against a client who alleges that outdated technology contributed to incompetent representation.

    Lawyers are not technology-adverse. The almost universal use of e-mail and word processing attests to that. Technological competency currently is not a stated element of the standard of care required by codes of professional responsibility in the ABA Model Code or in any state rules of which I'm aware.

    Yet, I believe lawyers have a duty to ensure that they do not fall short on their standard of care responsibilities when it comes to the computer.

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