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February 20, 2019

The United States Postal Service is nervous, fearing that the millennial generation is going to kill the use of the mail system (in addition to everything else they’re apparently supposed to be killing).  We live in a time of uprooting and upending previous ways of engaging with our world and with one another; Amazon changed how we shop, Uber changed how we get around, and the cellphone has completely upended our communication.  The legal industry is not immune to all this disruption.  Technology is changing our procedure and our client communication, and – like any other change – brings with it opportunity and danger.

Technology in legal procedure

Right now, you can use personal service or the mail to serve documents in any jurisdictions.  Some jurisdictions are adding an option for e-mail service, but most of those states also require stipulation of the parties to do so.  On the other hand, many jurisdictions have or are in the process of using electronic filing systems.  E-filing can help with court caseflow and management, but it can be costly to implement.  Additionally, while primarily used by attorneys, the use by pro-se litigants who may not have the same level of technical proficiency or legal knowledge could create access to justice issues, as the National Center for State Courts has addressed.

The change away from using the postal system can mitigate some of the disadvantages of mail, while also allowing us to take advantage of technology to become more efficient and effective.  Having to use the postal system requires significant resources – paper, envelopes, printing, postage, time – and of course there is always the risk of lost documents.  Of course, there’s also a similar risk with email potentially going to spam mailboxes, but unlike lost documents, your spam box is something you can check regularly.  If you get your notifications and documents electronically, you can set up rules in your system to do automatic sorting for you.  And once in your email folders, you can search much more quickly and accurately than you would through paper documents.

As the technology develops, we will continue to encounter changes in our normal course of business.  Ideally, we can use this to increase efficiency and effectiveness not just in court procedure, but also in our communication with our clients.

Technology in client communication

Already the use of email is ubiquitous in our profession, as in any 21st century business, and the risks, rewards, and issues have been laid out by the American Bar Association and countless law review articles.  Email brings the benefits of using the mail – the asynchronicity of the communication allows for the ability to review, research, and revise as you draft – while reducing the delay in time between messages.

In a similar vein, the exponential use of text messaging rather than phone calls in society is beginning to be reflected in the legal practice.  While texts are clearly inappropriate for any legal advice or complicated interaction, some attorneys may use text messages for confirming appointments or getting/giving updates with clients on their whereabouts.

The immediacy of electronic communication (or relative immediacy, compared to more traditional forms of communication), while adding to convenience and efficiency, certainly brings ethical and professional responsibility implications, beyond just the protection of attorney-client privilege.

In our digital age, information and answers can be at our fingertips on our demand, and that expectation, combined with the use of electronic communication, may create an expectation of an immediate response, implicating Rule 1.4 of the Model Rules of Professional Conduct.  We will need to be clear about what is “reasonable” regarding both communication to the client (the requirement to “reasonably consult with the client” in (a)(2)) and from the client (determining what are “reasonable requests for information” and the degree of promptness it requires, under (a)(4).

Comment 8 to Rule 1.1, regarding competency, specifically includes in the importance of maintaining knowledge and skill that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”.  Whether you embrace the “disruption” or resist it, it looks like technology is going to become more and more central in practice, even as it does in our everyday lives.

Image: REUTERS/Robert Galbraith

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