The legal industry is notoriously slow to respond when it comes to advancements in new technologies. Given the importance and sensitivity of matters handled by attorneys, there is certainly reason to be cautious before adopting untested and unfamiliar methods. However, because technology has in many ways transformed the capabilities of attorneys in rendering legal services, attorneys and firms that fail to embrace new developments risk depriving their clients of the most effective representation possible.
At its best, new technology can help attorneys become more efficient in rendering legal services, especially to those who need it most. To that end, the California Bar created the Task Force on Access Through Innovation of Legal Services to explore ways that new technology can be used to broaden access to legal advice, especially for those unable to afford traditional legal services. However, while the broader impacts of technology on the legal industry are still being understood (and debated), there is little doubt that technology has transformed the everyday practice of law for attorneys and law firms.
In particular, technology has become a crucial part of a law firm’s risk management strategy. For example, with rise of sophisticated hacking incidents, law firms have considered how to ensure that their systems are adequately protected against the potential for such incidents. The increased need for cybersecurity is just one way that the risks facing law firms have changed due to advancements in technology.
Law firms can also use technology in many other ways that reduce the risks of claims and enhance the practice of law. The use of engagement letters, calendar management, and document management, review, and retention are all aspects of the practice of law that have been deeply impacted by new technologies. Firm practices and procedures that have been in place for decades may need review to ensure that they align with client expectations as well as applicable law.
Rather than wait for a problem to arise, it is helpful to periodically monitor the marketplace and to make upgrades as necessary to meet the challenges of an ever-changing environment, which includes changing ethical rules and legal authority regarding technology and the practice of law. Below are some specific steps that firms can take to ensure that they do not fall behind the times.
The practice of law today involves a different set of challenges for reducing the risks of a legal malpractice claim or bar grievance. These new challenges are ones that updated claim prevention systems can help address.
Indeed, as malpractice claims evolve away from traditional allegations of ethical rule violations, it is helpful for lawyers to increase the overall security and modernity of their practice, rather than to try to operate within an older framework.
Because of these changes in risk dynamics, modern attorneys and law practices tend to focus more on claim prevention rather than malpractice prevention.
In many instances, traditional firm practices and procedures can be updated to take advantage of developments in technology. For example, effective client intake procedures and conflict searches necessarily have changed as technology has evolved.
Indeed, an engagement letter or fee contract documenting the scope, nature and obligations of the attorney-client relationship is an important part of every practice’s client intake procedures. Thus, as law and technology have changed over the years, so too can engagement letters and fee contracts.
Firms can periodically review and update their standard engagement letters to incorporate recent issues in the law, such as document retention, withdrawal, non-assignability, waivers and the right of termination, as well as a number of other issues unique to the practice area or the nature of the relationship. Form or template documents can include all of this information and can be adjusted as necessary based on the nature of the representation.
In another example, lawyers may have historically relied on the use of hard-copy calendars or diaries to keep track of upcoming deadlines and events. The principles underlying the tracking of deadlines can be updated to include electronic docketing systems, which can help reduce the likelihood of a missed deadline or other administrative error. However, such systems typically only work as well as the information provided to them.
Further, most firms have time-entry systems, but the market offers benefits that firms can use to cut down on their lawyers’ time spent on nonbillable tasks. Automated time entry and billing have replaced old billing techniques like timeslips and repetitive time review with computer-generated pro formas, generally resulting in quicker and more accurate billing, fewer edits to the bill, faster review time and more reliable follow-up.
Attorneys and firms can also review the protections they have in place to shield themselves from the risks associated with the practice of law, especially partnership agreements and legal malpractice insurance policies.
Firms can review their partnership agreements to ensure that they comply with recent developments in partnership law, liabilities, arbitration and other issues. Partnership agreements that have been in place for several decades may not anticipate the protections currently available to firms.
Separately from the potential developments at law, some firms may find that their partnership agreements do not accurately reflect the current state of the partnership, from its size to its number of partners to its risks, structures and liabilities. Periodic review can help ensure that a firm’s partnership agreement is not a relic.
Also, the legal malpractice insurance industry has changed in the last decade to identify cutting-edge risks and solutions for law firms. Regardless of whether a law practice is a high-risk practice with a substantial prior claims history or one that never has had a claim, there are more options than ever before for insurance coverage programs. The challenge can be to explore the options and determine which coverage from which insurer offers the best option at the best price.
The advancements in technology in recent decades have touched virtually every aspect of the practice of law. Law firms thus cannot simply keep operating as if nothing has changed; instead firms are inevitably going in one of two directions: forward or backward.