How Can Education Help Future Lawyers from the Same Fate
When I began thinking about this article it was January and I believed the most pressing issue in technology education for lawyers was understanding and leveraging emerging data types and sources in practice. Concepts like understanding how to harness data from messaging apps or how to collect geographical metadata to support your case. However, a lot has changed in a few months.
Now as I finally begin writing, I am working from home and teaching a law school class remotely amid Coronavirus concerns during a time where Epiq’s systems have been down for over 2 weeks due to a ransomware attack.
It has made me realize that yes, understanding the technology our clients and adversaries use is important, but perhaps understanding the technology we use or could use in our practice may be even more important in the future. I also realize that no matter what the most pressing issue is, the root of the solution might be the same – early awareness and education. Its far worse to react to an issue unprepared then to follow a well laid out plan when bad things happen.
So, what does that mean for practicing lawyers and the legal education system? It means we must see ourselves as lawyers differently and realize that our technical skills and understanding could make or break our practice. This is true from both a deliverable side (how well we provide advice to clients) as well as an engagement side (how well do we interact with our clients, our colleagues, and the world at large). It also means that we must change our legal education system to be forward looking rather than entirely teaching the lessons of the past.
Traditionally conversations teaching technology in law school revolve around e-Discovery or Artificial Intelligence education. As an adjunct professor in these subjects I support education in these areas but an understanding of the evolving EDRM or machine learning does not totally solve the need lawyers have for technical understanding. Technology education must focus on both highly advanced topics like understanding the nuances of e-Discovery in litigation and as basic as understanding the pitfalls of using public Wi-Fi. We as a practice need to be prepared to handle both.
Scanning through LinkedIn this week I saw a quote on the National Association of Women Lawyers’ page that read “In this day and age every lawyer is a data privacy lawyer. If you have your clients’ information, it is your duty to protect it. – Phi-Hang Tran”. It’s not explicit in this quote but what this quote is trying to convey is that as lawyers we are not only masters of the law, but also of the way we derive and provide legal advice. This idea is what it all boils down to, I think. We as lawyers are advocates for our clients with duties that cover all aspects of our actions. What once was “someone else’s problem” has now slowly become ours. We must adapt to this new world and become masters of technical issues if we are to continue to properly serve our clients and justice in general. The question is how do we get to a place of understanding and what role does legal education play in that journey?
Let’s first start with baseline competence. In order to determine how we get to a place of understanding we must first determine what that place is. The term “competence” is defined by Merriam Webster’s Dictionary as “the ability to do something successfully or efficiently”. For a lawyer that goes a bit further. In 2012, the American Bar Association’s House of Delegates voted to amend Comment 8 to Model Rule 1.1, which pertains to competence, to read as follows:
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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)
Of course, the Model Rules are just a model, but they provide a standard for individual states to formulate their own rules of professional conduct. Each state is free to adopt, reject, ignore or modify the Model Rules. As of today, 38 states that have formally adopted the revised comment to Rule 1.1 which means that over half of the jurisdictions in the US expect their attorneys to understand technology as part of their practice. It is with that expectation that law schools have begun to integrate technology into their curriculum.
In fact, we are at the beginning of a spreading trend where law schools have been investing money and resources into technological solutions and courses in order to ensure that graduating lawyers can be competitive in the market post-graduation. Already, at least 10% of US law schools teach knowledge related to the use of AI. This number increases every year. For example, the Innovation Center for Law and Technology at New York Law School was created as a cross-disciplinary program that addresses technology’s out-sized impact on law and society. The center provides courses, master classes, and access to cutting edge technology in order to arm its students with the skills they need to be ahead of the curve post-graduation. Programs like this help engage students early on topics related to technology in practice but even still much depends on the desire of the student to keep up with the times post-graduation. Technology evolves so rapidly that programming must constantly be refreshed and updated so as not to become irrelevant.
The other issue is that programming like this tends to touch on topics like e-Discovery, Artificial Intelligence, and automation of legal tasks. These are all great things to expose students to but what is usually not covered is actual use of daily technology and the potential for risk. This is just as, if not more, important and will be more so in the future. We must remember that technical competence starts in the same place as the actual use of technology – with how we use computers, computing software, the internet, and the navigate our work infrastructure.
Displaying competency in this area includes the ability to conduct internet searches, navigate government and court sites, and perform basic research. It also means that as a business professional a lawyer must be aware of basic privacy and security requirements and the risks associated with communications internally and externally via the Internet. Lastly, a lawyer must also have a basic understanding of how a safe and secure IT infrastructure operates and how to act accordingly to keep client data safe. Some key items in this area are file transfer, internet connection considerations, and other basic data management. When lawyers are working outside of their infrastructure there can be much more risk involved if precautions are not taken and procedures aren’t followed.
Nothing is making this point more clearly than the current working conditions as lawyers are either preparing for or already quarantined due to the Coronavirus.
Law firms who have yet to make the jump into newer technologies and telework options now find themselves with a new reality that can cause inefficiency and risk. There are simple areas that are taking time to adopt like using video conferencing, chat, and online document libraries as well as the larger issues of fending off security breaches as lawyers are all forced to work from home. Having to learn all these things at once is daunting and doing it remotely is almost impossible if a lawyer does not have a foundation to build on.
I argue that these skills need to be taught early and often. In fact, I believe that education needs to be ahead of the curve on technology, not alongside it or worse behind it. Law schools need to have a keen understanding of how the lawyer of the future will work and be able to provide an understanding of the same to their student. That means being able to identify upcoming trends in practice and teach to that rather than belabor what has been and has likely already changed by graduation. It also means providing tactical skills to students related to use of technology in and out of the office, even without client interaction.
A month ago, I would have advocated to introduce more work technology into the classroom like chat applications, conferencing technology, and ways to connect to central repositories of information. Now it seems that closing schools and moving all classes to being remote has begun that push for me. It will be very interesting to watch how we come out of this experience as law students, teachers, and lawyers. I believe that we will, through the struggle of having to quickly adapt, end up being more technically capable than ever before. I also think this experience will have thrust those least accepting of technology into a situation where they can no longer hide from it. When that happens, we all win as those lawyers, teachers, and students have to become comfortable to survive and we can clearly see how important it is to incorporate these things into our curriculum and practice going forward.
About the Author Jeanne Somma is the Legal Insights Executive and Counsel at ayfie. She has over a decade of experience in the legal industry, with strong expertise in eDiscovery, analytics application, and consultation regarding defensible uses of technology in document review and production.
Jeanne is a licensed attorney and has studied law both in the US; receiving her LLM in International Business and Trade from Fordham University School of Law and her J.D. from Hofstra University School of Law; as well as abroad at both the University of Sydney Law School and the University of Nairobi School of Law. She is admitted to practice in New York and New Jersey.
Jeanne writes and speaks frequently on topics such as best practices for incorporating analytics into discovery workflows, developments in the laws around data privacy and cross-border discovery, and strategies for reducing cost and improving efficiency in discovery.
Most recently, she served as Director of Legal Innovation & Discovery Counsel at RVM Enterprises, where she was responsible for leading RVM’s Project Management, Hosting, Support, Consulting, Analytics and Managed Review groups. She is also an adjunct professor teaching eDiscovery at New York Law School. In addition, Jeanne supports higher education for underprivileged students through philanthropic engagement. She is a charter member of the Syracuse University’s Leadership Annual Giving Society.