Steve Thomas Commentary: Competency with Technology is No Longer Optional for Lawyers
MCS shareholder Steve Thomas’ latest Texas Lawyer commentary offers a cautionary tale for lawyers about the need to stay abreast of rapidly evolving technology. While most lawyers understand and appreciate their professional requirement to maintain competency in their legal practices, Thomas notes that as technology has become intertwined with lawyers’ day-to-day practices, attorneys who don’t maintain proficiency with tech tools can suffer professionally, or worse.
Thomas, who serves on McGuire, Craddock & Strother’s technology committee, highlights the story of 30-year veteran bankruptcy lawyer James Edward Oliver, who permanently lost his right to practice before an Oklahoma bankruptcy court after repeatedly failing to acquire competency in the basic technology required for him to practice before federal bankruptcy courts.
For those lawyers still relying on teenage family members to configure device settings or set up online accounts, this sends a chilling reminder that the requirement for competence in legal technology is getting real, Thomas writes.
In 2012, the American Bar Association amended its Commission on Ethics 20/20 to include a passage addressing the importance of technology to the practice of law. Among other things, the ABA’s Model Rule 1.1 states that lawyers “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
Oliver’s problems began when he repeatedly failed to properly submit filings through the court’s online portal, even with assistance from court staff. Discipline from the Oklahoma Supreme Court grew increasingly severe as Oliver failed to improve his computer proficiency. He was permanently suspended from an Oklahoma bankruptcy court after Judge Sarah Hall of the U.S. Bankruptcy Court for the Western District of Oklahoma found that he had paid another lawyer to “ghost write” his assignments. To make things worse, he was publicly censured by the Oklahoma General Counsel for failing to report those suspensions.
Historically, the concept of “competence” brought to mind the attorney’s substantive legal skills. One would be hard pressed to locate ethics opinions sanctioning lawyers for snarling the correction tape on an IBM Selectric, repeated failures at securing modem handshake in a facsimile transmission, or head-scratching confusion at a jam in a plain-paper copy machine.
For those hoping technology might abate its pace to give them time to catch up, the future looks bleak. Technology-assisted review, or TAR, is quickly becoming a mainstay of the discovery process, forcing attorneys and judges to evaluate, challenge, or defend the reliability of mathematical algorithms. Right on its heels is AI—artificial intelligence—which, according to an Oct. 25, 2016, article in the online ABA Journal, predicted the outcomes of almost 600 human rights cases with 79 percent accuracy. And the most frightening acronym of the moment is IoT, because the internet of things is an unstoppable tsunami that makes everything previously called “Big Data” look microscopic.
The most reassuring aspect of this trend is that no one can keep up. “Reasonable” still is, and must continue to be, the standard for evaluating efforts by attorneys to maintain technological competence. The problem, of course, as Oliver can attest, is that “reasonable” ain’t easy.
Read the full commentary here.