When Dyson Heydon admitted last year that he doesn’t have a computer and was incapable of sending or receiving emails, there was uproar, with people calling for public officials to have a minimum competency in basic computer literacy.
But royal commissioners and High Court judges are some of the few lawyers who don’t charge by the hour. There is an even more compelling case to require practising lawyers to have a good level of IT competence so clients aren’t paying for their inefficiencies.
We’re not talking about the skills like coding, UX, design thinking or systems design that some lawyers are learning to differentiate themselves in a crowded market.
We’re talking about Word. Excel. Email. Knowledge of the main social media platforms. An understanding of how information is stored electronically so it can be discovered in legal proceedings, and used electronically in court.
Solicitors’ ethical rules in NSW and Victoria require them to 'deliver legal services competently, diligently and as promptly as reasonably possible'. Performing that ethical duty requires solicitors to remain up to date with relevant changes in the law. A client would be justifiably enraged if their solicitor ignored developments in the law and thereby jeopardised the client’s interests. But if sitting on your hands and ignoring changes in the law is unacceptable (and self-evidently demonstrates an absence of competence), is letting technological change pass you by ok?
While lots of solicitors have grown up with 'modern' technology, or been forced to use it by their firms, there’s a real capacity for solicitors to let their technological knowledge ossify once they have a sufficient system in place to more or less get by in the modern world and meet the threshold for competence. Perhaps this is because we have no explicit commandment to the effect of '[t]hou shalt understand all relevant tech lingo, and be au fait with all matters computational'.
The situation is very different in the United States. Model Rule of Professional Conduct 1.1 Comment 8 now requires lawyers to:
'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…'
More than 20 US states have since adopted an ethical duty of technology competence for their lawyers.
Market pressures in the United States are forcing change. Corporate legal departments are demanding their outside lawyers demonstrate their IT competency (and expecting discounts if the lawyers are below the benchmark).
There is now an online test – the Legal Technology Skills Audit - which enables lawyers to demonstrate their IT competency. The Audit looks at how quickly and accurately the lawyer can perform common functions in Word, Excel and PDF software. Test takers must finalise a marked-up investors’ rights agreement (in Word). They are then given data on dividend payments to investors to investigate whether payments were made equally to all investors (in Excel). Finally, you prepare for e-filing attaching the agreement and spreadsheet (using PDFs). Not sure if you’d pass? The test costs $US100 to $250 to take but we used our advanced Google-stalking skills to locate this PDF listing some of the things it tests if you want to see how you’d measure up …
But is an external skills audit the best way to demonstrate competency? It only assesses a lawyer at a single point in time, and doesn’t necessarily demonstrate a firm’s commitment to ongoing training and improvements in competence.
The LTC4 method of certification is a more flexible way for firms to demonstrate the technological competency of their solicitors. Developed by a non-profit organisation, it has established eight legal technology core competencies, based around workflows such as collaborating on documents, mobile working, email management, document security, presentations and manipulating data.
The LTC4 framework is, as far as possible, not tied to a particular software solution. The competencies are flexible enough for a law firm to incorporate them into their own training programs and test them in a number of ways (be it online, in person, workplace observation or a mix). However, the competency is independently accredited. In other words, the method does not require a specific test or examination of individual candidates, but assesses how the training program of the firm aligns with the LTC4 standards and then reviews how the competencies are measured and recorded.
Last month, LTC4 released its optional eDiscovery/eDisclosure module. Given that every litigator could be exposed to electronically stored evidence, we think that litigators have an ethical duty to the court to have basic understanding about electronic discovery and when the issue may arise.
There are now over 80 members of LTC4 in the US, Europe and Canada, but none yet in Australia (to our knowledge!). Who will be the first? It would be one way for a law firm to demonstrate best practice and stand out in a crowded market. It would also put that firm ahead of the game once the Australian legal regulators catch up with both the technology and their international counterparts.
Universities are taking the lead with the next generation – we’ve discussed Melbourne Law School’s Law apps program and UNSW’s use of an online Moodle to teach land law.
But today’s lawyers should also brush up their basic tech skills, not just to remain competitive but to meet their ethical obligations to their clients and the court.