What Does Tech Competency for Lawyers Really Mean?

Over the years of my career in technology and training, I’ve always held two beliefs about how people are measured when it comes to their use of the technology they have at work. The first, of course, is that “you get what you measure”.

So, for example, if you measure your support people by the number of tickets closed, you’ll get a whole lot of tickets closed, which may or may not represent actual problems solved.

The second belief I have had is that the rules are only rules if there are consequences. So, for example, if you create a training opportunity for an employee to learn “x” skill, which is required to do their job, and 6 months later, they still cannot actually do “X”, someone needs to be held accountable for that. You can’t run a team by just shrugging your shoulders and saying “oh well” when someone is lacking the ability to do their job, or when someone leaks confidential information, or is careless with their login credentials, etc. At some point it ceases to be a rule if there are no consequences for breaking it.

And this brings me to the various state Bar Association rules when it comes to attorneys and tech competency. There are some set of rules, now across much of the US, that state that it is not ethical to represent a client without the necessary technical know-how to do the job properly. I have applauded those rules in this space, and will continue to do so. However, the longer we go without any clear examples of someone actually being held accountable for violating these rules, the more I start to wonder if it will wind up less of a rule, and more like a bunch of fancy words.

In the eDiscovery space, there have been a few sanction rulings over the years, and a few courts have smacked down some attorneys, but mostly that was for really egregious behaviors, not necessarily just being clueless about technology. There are still a whole lot of attorneys destroying metadata, and other useful information, during the discovery process due to pure ignorance than we probably want to admit. I am afraid that until a court really lays some penalties on it, or clients start to make lawyers pay by firing them for not being competent with regards to technology, we only have a bunch of fancy words, not a rule. Maybe I’m wrong, but I still see it and hear about these kinds of things across the industry all the time, despite what the rules say.

Do you have any concrete examples of these new rules being applied to a lawyer’s incompetence? I’d love to hear them.

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