Law is one of those fields that has a strange relationship with balancing adaptation and tradition. Don’t believe me? Go check how many times the word “WHEREAS” is used in a cutting-edge tech company’s contract. Just think about what it was like learning the law — it isn’t uncommon to leap back and forth a couple of decades when deciding which decisions control the case you’re working on. When you find something that works, especially when it has worked for a long time, it can be terrifying to branch out to new ways of doing things — especially when client satisfaction, ego, and dollars are on the line. As tech like ChatGPT develops, the more technologically forward of us have been making a mad dash to incorporate it into daily legal practice. The more risk averse and tradition prone have taken the much more laid back approach of “Let’s see them figure it out before I try my hand at it.” As understandable as that position is, a common sense reading of Model Rule 1.1 has this to say about that: learn by fire if you have to.
From the ABA Journal:
If 40 states have implemented an ethical duty of competence in technology, why aren’t lawyers completely technologically competent?
That’s a question Kenton Brice, the director of technology innovation at the University of Oklahoma College of Law, posed to the audience Thursday at ABA Techshow 2023. Brice, who moderated a panel discussion titled, “Technology Competence, It’s Required” posited that lawyers may not know what that means.
According to Model Rule 1.1 of the ABA Model Rules of Professional Conduct: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
In 2012, the ABA House of Delegates voted to amend Comment 8 to Model Rule 1.1 to include explicit guidance on lawyers’ use of technology.
Does this mean that you need to have a fully automated practice by close of day tomorrow? No, but it does mean that you need to be actively honing your craft. As likeable as he was, nobody wants to go out like Dr. Townshend.
As you watch the clip, switch out ACE inhibitors for AI-powered legal research tools and you get my point.
There’s good news for the aspiring JDs who are still learning the law. Books and outlines aren’t the only technology that will help them learn to think like lawyers.
Hari M. Osofsky, the dean and Myra and James Bradwell Professor of Law at Northwestern Pritzker School of Law, said during Thursday’s panel discussion that law schools play a significant role in preparing law students to be technologically competent lawyers. She pointed out that many students also need training in basic technology, such as Microsoft Office, and as a result of the COVID-19 pandemic, they need to know how to participate in court hearings on Zoom.
On the more advanced side, she suggested schools consider how ChatGPT and other language models as well as AI-powered legal research tools and contract analysis tools will impact the practice of law and prepare students for those changes.
“It’s really important that in law schools, we think specifically about interdisciplinary law and tech education,” she said. “We need to really expose students to how these emerging technologies work and how they might come into how they serve clients and use their law degrees.”
It is easy to make apocalyptic jokes about how AI will replace lawyers. I’m not sure if you’ve seen what ChatGPT is up to nowadays, but we’ve definitely got some time on that front. The much more rapidly approaching threat to job security is that the lawyers who aren’t technically savvy will be replaced by those who are. If Model Rule 1.1 isn’t enough of a motivator to dip your feet in legal tech, maybe paying off that mortgage is. As an extra bit of motivation, it may benefit you to pin the ABA House of Delegate’s call to action on your motivation board.
“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[.]”
How Can Lawyers Meet Their Ethical Obligation To Be Competent In Technology? [ABA Journal]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at firstname.lastname@example.org and by tweet at @WritesForRent.