Lawyers need technological expertise, whether to protect a client’s sensitive information, apply a data analytics tool during discovery, or simply to be adept at using a word processing program.
But though lawyers are ethically bound to understand the technology they use to practice, only one state requires continuing legal education on technology. A new proposal would make North Carolina the second.
The North Carolina State Bar later this year will ask the state’s high court to approve an amendment that would require attorneys to complete a one-hour class devoted to technology training, as part of their 12-hour annual CLE requirements.
North Carolina would join Florida in requiring technology CLE credits. The Florida Supreme Court in 2016 amended the rules regulating the state bar to require that lawyers obtain three hours of technology CLE credits every three years, of the 33-hour total.
The new CLE requirement is a step towards encouraging attorneys to stay current with technological advancements, academics told Bloomberg Law.
“The change sends an important message: that lawyers need to understand how technology is affecting the delivery of legal services,” Andrew M. Perlman, dean of Suffolk University School of Law in Boston, told Bloomberg Law. Perlman is also chair of the American Bar Association’s Center for Innovation.
“The requirement will help to spread valuable knowledge and skills that will accelerate changes that ultimately benefit the public,” he said.
Some attorneys have landed in hot water for their use of social media, mistakes in preserving and producing electronically stored information, and failure to keep confidential information secret while using mobile devices and cloud-based software.
The ABA amended the comments of its Model Rule 1.1 in 2012 to state that keeping abreast of “the benefits and risks associated with relevant technology” is part of the lawyer’s duty of competence. A majority of states, including Florida and North Carolina, have adopted the comment.
In today’s world, attorneys must have some understanding about how technology is affecting their practice, Mark P. Henriques, a Charlotte-based partner at Womble Bond Dickinson, told Bloomberg Law. Henriques is the chair of the North Carolina State Bar’s ethics committee.
While most attorneys already attend CLE courses related to technology, there still are some who need training every year about the ethical issues presented by modern technology, he said.
“From the ethical perspective, my sense is that many attorneys have not thought through all the implications of the use of technology in law practice,” Catherine J. Lanctot, a professor at Villanova University Law School, told Bloomberg Law in an email. Lanctot’s primary area of scholarly interest is the intersection of legal ethics and technology.
“Issues like using third-party vendors to store client information in the cloud, using unsecure WiFi networks while doing client work off-site, advising clients about how to handle problematic materials on social media, for example, can create unforeseen questions about confidentiality and competence.” she said.
“Using social media for marketing purposes—blogs, texts, tweets, etc.—can also trigger advertising/solicitation issues,” she said. “I think it’s important for all lawyers to have a basic handle on how technology can both assist them in law practice and also generate ethical issues if not handled appropriately.”
Tech-savvy attorneys can also spare their clients needless legal bills, Perlman said.
“I find that lawyers often don’t know how to effectively and efficiently use basic law practice technology,” like Microsoft Word, Outlook, and Excel, he said. “As a result, they end up wasting a lot of their time and their clients’ money.”
“Lawyers are even more likely to lack an awareness of other ways to improve their productivity, such as through automated document assembly and online law practice management tools,” he said.
The North Carolina Bar approved the proposal earlier this year. It will be sent to North Carolina Supreme Court after the bar’s July quarterly meeting, with the goal of having the change go into effect for the 2019 CLE compliance year, Alice Neece Mine, assistant executive director of the North Carolina State Bar, told Bloomberg Law.
The proposed amendment includes a fairly broad definition of technology, she said. So it shouldn’t be too difficult for CLE providers to deliver meaningful classes that lawyers will find useful.
The definition of technology training includes education on issues like cybersecurity, e-discovery, social media, and tools and processes attorneys can use to assist their clients.
The broad definition could undercut some of the benefits of adding the educational requirements, Ellen Murphy, who teaches professional responsibility at Wake Forest University School of Law, told Bloomberg Law in an email. Murphy, who is also Wake Forest’s assistant dean of instructional technologies and design, developed a course on contemporary ethical questions in the practice of law.
“I welcome this adoption with one caveat,” she said. Not all types of technology training should qualify for CLE credit, she said.
“There are obvious categories of tools in which lawyers need training, including billing, e-filing, and calendaring,” she said. “What is needed more, to comply with the rules governing lawyers, is an understanding of how these tools work.”
More States to Follow?
It’s too early to say whether other states will add technology CLE requirements, and if so what their measures would look like.
“There is no question there is a need for lawyers, and all legal professionals, to know more about technology,” Murphy said. “However, I do not think requiring lawyers to attend training by technology vendors on how to use their products, absent more, is a beneficial addition.”
“The hard questions are those of substance, which I hope all states will consider as part of any proposed changes.” she said.
“There is a lot of cynicism about CLE requirements generally, but I think that requiring something this practical would be highly beneficial,” Lanctot said.
Lanctot recalled that she participated in a 1995 CLE presentation entitled “The Internet: Hip or Hype.”
Back then some people thought the internet was just hype, she said. “I don’t think anyone foresaw the explosive change that this technology was about to bring to the legal profession, nor can we necessarily foresee the changes that will be coming 5 years down the road. It’s hard for lawyers to keep up with technology, [but] it’s essential that they do so.”