Innovations and advances in technology over the last five years have brought dramatic and irreversible changes to the practice of law. From cloud computing to mobile lawyering, from social media to big data, technology has both simplified and complicated lawyers’ lives.
What have been the critical changes in recent years and what do they tell us about where the profession is headed? What follows are my thoughts about the 10 most significant developments in recent years and what they mean for law practice looking forward.
1) Competence in Technology Is No Longer Optional
In August 2012, the American Bar Association voted to amend the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent in technology. Specifically, the ABA voted to amend the comment to Model Rule 1.1, governing lawyer competence, to say that, in addition to keeping abreast of changes in the law and its practice, a lawyer should keep abreast of “the benefits and risks associated with relevant technology.”
What This Means Going Forward. The duty of competence in technology will become engrained in ethics law and expanded in its scope. Already, we have seen several states follow up on the ABA’s action. Delaware became the first state to formally adopt a duty of technology competence. It even created a Commission on Law and Technology to help lawyers comply. Pennsylvania was another to amend its professional conduct rules to comport with the ABA model rule. Other states are actively considering adoption of the rule.
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California may take the duty a step further. A proposed ethics opinion there would hold that attorneys who represent clients in litigation must either become competent in electronic discovery or associate with others who are competent in that area. Regardless of whether this proposed opinion is adopted, it is a harbinger. The duty of technology competence will continue to expand and the Luddites among us will increasingly be at risk.
2) Lawyers’ Use of Social Media Is No Longer a Novelty
Yes, lawyers blog. They use Facebook. They are on Tumblr and Instagram and Twitter. Get over it. We are past the point of talking about it as if it is a novelty. That is not to say that social media is not important. It is extremely important. The point, however, is that it is no longer stop-the-presses news. Participation in social media is now part of the mainstream of law practice and part of the fabric of lawyers’ day-to-day lives.
What This Means Going Forward. More significant than lawyers using social media is that our clients are. Combine this fact with the duty of competence in technology discussed above, and we reach one very clear conclusion: If you are one of the many lawyers who continue to resist social media, you had better get with the agenda. If you have never used Facebook and Twitter, then you cannot really understand them. And if you do not understand them, then you cannot competently represent clients who have matters that implicate social media. As one obvious example, you cannot competently practice family law these days without a good grasp of social media. There is no more holding out.
3) The Cloud Has Come Down to Earth
No doubt, there are still many lawyers who remain wary about cloud computing. For the most part, however, cloud-based platforms have become essential tools in our law practices and even in our daily lives. And as they have, ethics opinions from at least 19 jurisdictions have unanimously agreed that it is ethical for lawyers to use cloud-computing platforms and to keep client documents in the cloud.
What This Means Going Forward. Cloud-based applications will become ubiquitous among legal practitioners. In doing so, they will largely replace locally installed software and systems. Whether for document management, practice management, accounting, time and billing, or any of a host of other functions, cloud systems are more economical, more practical, and more convenient.
4) Mobile Has Become the Driving Force in Technology Development
Mobile technology has dramatically changed the face of law practice. We are connected 24/7, able to work from anywhere, expected to respond immediately. Surveys tell us that more than 90 percent of lawyers use smartphones and increasing numbers use tablets. The vast majority of us are constantly plugged in, checking work email from wherever we are and throughout the day. This is driving legal vendors to create new products and adapt old ones so that they work equally well across platforms, no matter the device.
More significant than lawyers using social media is that our clients are.
What This Means Going Forward. Mobility will continue to drive major changes in the way we practice law. As we are increasingly able to carry our work environments with us wherever we go, our physical offices will become less the center of our work lives. Firms will reduce their physical footprints and make greater use of shared and virtual offices. This is enormously empowering for lawyers, but it could also be oppressive. Part of the trick of mastering mobile technology will be learning to disconnect. Even lawyers need downtime now and then.
5) Practice Management Has Gone Mainstream
The start of 2015 marked the seventh anniversaries of Clio and Rocket Matter, the first two cloud-based practice management platforms. Now, there are a variety of vendors who have entered this increasingly crowded field, including MyCase, Thomson Reuters Firm Central, and LexisNexis’s Firm Manager, to name a few. While there have been desktop practice-management applications for years, these cloud platforms continue to get better and better. More important, they have spurred greater use of practice-management software among lawyers and greater understanding of why it is important to do so.
What This Means Going Forward. We will continue to see significant growth in the use of practice-management applications among legal professionals. At the same time, we are already seeing these applications changing the trajectory of their development. From a narrow focus on core practice management, some are looking to go wider — to provide an array of integrated tools and services. They aim to serve as a hub not just for practice management, but for all functions within a law practice.
The clearest example of this was Clio’s announcement late in 2014 of integrations with Fastcase, QuickBooks Online, and other products. As Clio cofounder Jack Newton told me then, “We want Clio to be an all-encompassing solution for a law practice. We want it to be the hub of a multi-spoked wheel that is providing a very complete and comprehensive solution to law offices.”
6) Innovation and Disruption Have Become the Norm
Early in 2014, I wrote an essay in which I posited that we had reached a moment in legal technology of unprecedented innovation and creativity. A year later, I believe that even more strongly. We have transformed from a time when legal technology and legal information were products driven by large corporations to one when anyone with an idea to make things simpler and smarter can launch a product and succeed.
Robert J. Ambrogi is a Massachusetts lawyer and writer. He writes the blog Lawsites and covers technology for the ABA Journal, Law Practice magazine, and other publications.
I’ve covered legal technology for more than two decades. There have been times when I’ve struggled to find interesting products to write about. These days, I can’t keep up with all the new products and websites coming out. Sure, some will fail. A few are just dumb. But many are good and some are really good, and both we as practitioners and our clients reap the benefits.
What This Means Going Forward. Just as lawyers have come to accept technology as a given, many now also see the potential for innovation as a given. One of the most telling examples of this is the increasing popularity of hacking within the legal profession.
By “hacking,” I do not mean breaking into computer systems. Rather, I am referring to people who are skilled in computer coding and who use that skill to develop innovative solutions to problems. The last year has seen a number of legal hackathons take place and legal-hacker groups become active. These legal hackers are developing innovative computer programs, mobile apps, and Web tools for purposes that range from streamlining legal practice to bridging the access-to-justice gap. They are representative of a broader trend toward innovation across all sectors of the legal industry.
7) The Justice Gap Has Become a Key Driver of Innovation.
The United States faces a crisis in the delivery of legal services. Study after study has documented that our justice system is addressing only a small fraction of the legal needs of low- and moderate-income people. Year upon year of cutbacks in IOLTA and other sources of funding have only exacerbated the problem. There is growing recognition of the fact that lawyers, alone, will never bridge the gap. We can’t just hope for more pro bono hours or greater funding — and they wouldn’t be enough in any event.
For any of a host of functions, cloud systems are more economical, more practical, and more convenient.
Increasingly, the response to this justice gap is innovation in the delivery of legal services. We see this in the legal services sector, where the Legal Services Corporation and others are encouraging development of creative ways to use technology. We see it in the private sector, where companies such as LegalZoom and Rocket Matter are using technology to more efficiently deliver services. And we see it within the organized bar, through experimental programs such as Washington state’s limited-license legal technicians. There is a vacuum in the delivery of legal services, and innovators are coming forward to fill it.
What This Means Going Forward. The justice gap will continue to drive innovation, spawning new tools and methods to help meet unmet needs in the delivery of legal services. At the same time, we will see companies such as LegalZoom and Rocket Lawyer expand the range of services they offer. We will see increasing experimentation with using nonlawyers to deliver legal help. And we will see increasing acceptance of the idea of allowing nonlawyers and private companies to have ownership in legal services entities. As all of these things happen, the delivery of legal services will become more like the delivery of health services, provided by professionals along a spectrum of skills and abilities.
8) In Legal Research, Small Is the New Big
For as long as most of us can remember, two 800-pound gorillas, Westlaw and LexisNexis, have dominated the legal research market. Other players include Bloomberg BNA and Wolters Kluwer. But recent years have brought the rise of two other segments of legal-research providers, which are becoming increasingly significant in driving innovation.
One segment consists of the start-ups – “rebel” companies that are introducing new approaches to legal research. In this group, I would include companies such as Casetext and Ravel Law. The other segment I describe as the “value” providers – most notably Fastcase and Casemaker. These companies were once rebels themselves, bringing primary legal research to the legal market at a cost far more affordable than the gorillas offered, but they are becoming increasingly accepted by lawyers across a wide range of practice types as viable legal research platforms.
What This Means Going Forward. The growing use of value research services such as Fastcase and Casemaker and the emergence of innovative startups such as Casetext and Ravel Law will affect the legal market in two significant ways. One, it will drive cost reductions among all legal research providers – even those 800-pound gorillas. Two, it will drive broader adoption by providers of more innovative features, similar to Ravel Law’s visualization tools and Casetext’s crowdsourced annotations. For lawyers, that will mean more powerful research tools at lower cost.
9) Data Security and Encryption Have Become Essential
Surveys continue to show that lawyers fall woefully short in their use of encryption and other data security measures to protect privileged client communications. Encryption avoiders long found comfort in ethics opinions that said that encryption was not necessary. The most prominent of these was ABA Formal Opinion 99-413, which concluded that a lawyer’s sending of confidential client information by unencrypted email does not violate the model rules.
Well, that was 1999. We know a lot more now than we did then about the state of digital security. Law firms are being hacked. Email is being intercepted. This isn’t a “maybe” anymore. In 2015, encryption is a must-have tool for lawyers and data security is a top priority for law firms and legal organizations.
What This Means Going Forward. Law firms need to pay close attention to data security. If there is one lesson we have learned from years of news stories about data breaches, hacking, and government snooping, it is that we are not being paranoid to think someone is watching us – or at least trying to. At the same time, ethics decisions require us only to take reasonable steps to protect client confidences and documents; they do not require us to be guarantors of confidentiality. Here again, we must invoke the duty of competence. You must know what you don’t know and know when to get professional help. Perhaps it can be said that a lawyer who handles his own IT has a fool for a client.
10) Lawyers Have Realized that Computer Analytics Are Allies, Not Enemies
The alarm was sounded with the 2011 New York Times article, “Armies of Expensive Lawyers, Replaced by Cheaper Software.” Some lawyers started to believe that advances in artificial intelligence and computer analytics were a bad thing, threatening to displace them from their hard-earned jobs. Some still believe that, but the past year marked a turning point, from lawyers seeing “smart” algorithms as their enemies to understanding them as their allies. Computers cannot and will not replace lawyers. But they can make lawyers’ lives much easier and help reduce the time and the cost of performing legal tasks.
What This Means Going Forward. Although e-discovery has been among the most conspicuous areas of law practice to use predictive analytics, these tools will increasingly be used for a range of purposes. Already, analytics and algorithms are being used to predict case outcomes, enhance legal research, strengthen marketing efforts, and gain competitive intelligence. Increasingly, lawyers will understand that humans and technology can work together to produce results far superior to those from humans working alone.