The Legal Profession’s Obligation to Monitor Evolving Technology

December 13, 2016

Law & technologyThe American Bar Association and approximately 14 states now require that lawyers remain informed regarding benefits and risks associated with the use of technology in support of the practice of law.  This requirement essentially places the duty to remain current on the evolution of legal support technology on par with the obligation to remain current on changes in the law itself.  Lawyers are now routinely required to develop and maintain adequate knowledge associated with the opportunities and challenges connected with use of technology.  All lawyers thus have a professional responsibility to develop at least a basic fluency in technology use.

It is important to recognize that this obligation regarding understanding of the benefits and risks associated with technology applies to the full range of legal practice uses for technology.  Thus Matsuura Blakeley Bannerfor example, lawyers are expected to understand the opportunities and challenges associated with key technologies supporting basic law practice functions such as legal research and documents/records management.  The requirement for technological fluency also includes however, an obligation to understand the benefits and risks associated with more generic technology uses such as communications, billing and time management, and marketing/promotions.

It must also be noted that this requirement applies to the full range of technologies employed by legal professionals, not only those most commonly discussed in this context, such as computers, smartphones, cloud systems, and telecommunications platforms.  The professional responsibility to understand and evaluate risks and benefits applies to use of many technologies in addition to basic information technologies.  Such additional technologies would likely include robotic/automated intelligence systems, surveillance/monitoring technologies, and data acquisition and analytics systems.

The integration of technological literacy into the framework of legal professional responsibility signifies an important step in the evolution of the practice of law.  It underscores recognition that effective legal practice requires reliance on a range of technologies and that such reliance carries significant potential benefits and risks.  It also clearly places the responsibility for effective management of technology in support of the practice of law on legal professionals.

Perhaps the most significant aspect of this duty of technological literacy is that it is an open-ended requirement for lawyers.  As technologies emerge and evolve, their use by the legal community is continually changing.  Legal professional organizations have now clearly indicated that they will require lawyers to remain current as to the uses, benefits, and risks associated with all the technologies applied in support of the practice of law.  That requirement places a substantial responsibility on lawyers, and it represents a responsibility that will not end and will most likely become increasingly complex as time progresses.