Falling Behind Tech Curve May Constitute Malpractice

Published on: 
09/18/2013
Today, the world of the law is more than ever the world of the computer. Laptops, smartphones and tablets have all but replaced the briefcase as lawyers' constant companions.

But having technology tools available is not the same thing as lawyers knowing how to use them as an integral part of practice dynamics. It is in this kind of technology education that too many small firms and solos are coming up short — and could be subjecting themselves to malpractice suits.

Some attorneys are so far behind the technology curve that they don't even use email or keep electronic files of client records. Others don't spend enough or maintain upgrades to keep it current.

Surveys on law-firm technology indicate that while the majority of large firms upgrade their computers and software every two to three years, many small firms and sole practitioners go as long as six years or more between upgrades, citing cost, time to learn and implement new technologies, and the uncertainty that new technology will increase efficiency and work quality.

Such firms are in danger of malpractice accusations. Rule 1.1 of the American Bar Association's 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 some attorneys are significantly more sophisticated in the use of technology for trial support, file management and the like, others who don't meet the same standard may be perceived as willfully less competent than their competitors.

That is malpractice, particularly in light of a 2012 revision to Rule 1.1 that calls on lawyers to "keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology."

Bear in mind that the education issue here is not that lawyers need to be tech geeks. Those who forgo in-depth knowledge of online video production, blogging, website management, social media competency and mobile computing may risk becoming technologically irrelevant, but there's a vast difference between irrelevance and incompetence.

Giving due attention to the education issues presented by emerging technology has become essential to serve clients and meet professional standards.

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