1.
Understanding
Legal
Technology
Competence

2.
Joshua Lenon
LAWYER IN RESIDENCE AT CLIO
Attorney admitted in New York
@JoshuaLenon

3.
Robert Ambrogi
Lawyer and Legal Technology Journalist
Attorney admitted in
Massachusetts
@BobAmbrogi
Lawsitesblog.com
LawNext.com Podcast

4.
Agenda
• What is tech competency, and why it’s so
important
• Strategies for developing technological
competence
• How to keep up with legal technology
• Questions

5.
What is Technology
Competency?
Why is it important to be competent?

6.
“I have to confess to this
court, I am not computer
literate. I have not found
presence in the cybernetic
revolution. I need a
secretary to help me turn
on the computer. This was
out of my bailiwick.”

7.
We assure the Court that … the redacted portions
were in fact “blacked out.” … Unfortunately, we
learned that a reporter was able to defeat this
redaction process by exploiting a technical weakness,
as we understand it.”

8.
The Source of the Duty

9.
ABA Model Rule
1.1, Comment 8
“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, ….”

10.
38 States Have Adopted Comment 8

11.
Defining the Duty

12.
CA Formal Opinion No. 2015-193
“Not every litigated case involves e-
discovery. Yet, in today’s technological
world, almost every litigation matter
potentially does. The chances are
significant that a party or a witness has
used email or other electronic
communications, stores information
digitally, and/or has other forms of ESI
related to the dispute.”
Either be competent in e-discovery or associate with others who are

13.
‘Competence’ depends on the case
•Assess at outset of case what e-
discovery issues might arise.
•Assess your own e-discovery skills
and resources as part of your duty
to provide the client with
competent representation.

14.
Attorney should be able to:
1. Initially assess e-discovery needs and issues, if any.
2. Implement appropriate ESI preservation procedures.
3. Analyze and understand a client’s ESI systems and storage.
4. Advise client on available options for collection and
preservation of ESI.
5. Identify custodians of potentially relevant ESI.
6. Engage in competent and meaningful meet and confer with
opposing counsel.
7. Perform data searches.
8. Collect responsive ESI in a manner that preserves its
integrity.
9. Produce responsive non-privileged ESI in a recognized and
appropriate manner.

15.
Can Contract Out – But
• Can meet the duty through association with
outside attorney, outside vendor,
subordinate attorney or even the client.
• But: Attorney must maintain overall
responsibility for and remain engaged in the
work of the expert.
• And: Attorney retains overall responsibility
for training and supervising all involved in
the case, including risks and obligations
around e-discovery.

16.
Duty of
Confidentiality
“A lack of reasonable care to
protect against disclosing
privileged and protected
information when producing
ESI can be deemed a waiver
of the attorney-client
privilege.”

17.
First ABA opinion on tech competence
Updates 1999 opinion
allowing unencrypted email
to hold that some
circumstances warrant
“particularly strong
protective measures” such as
encryption.
ABA Formal Opinion 477 (2017)

18.
Fact-based
analysis
•Sensitivity of the information.
•Likelihood of disclosure if additional
safeguards are not employed.
•Cost of employing additional
safeguards.
•Difficulty of implementing safeguards.
•Extent to which safeguards adversely
affect ability to represent clients.

19.
Lawyer should be able to:
1. Understand the nature of the threat.
2. Understand how client information is transmitted and stored.
3. Understand and use reasonable electronic security measures.
4. Determine how to protect electronic communications about
client matters.
5. Train lawyers and assistants in technology and information
security.
6. Conduct due diligence on vendors providing communication
technology.

20.
Duty to communicate
with client
“When the lawyer reasonably believes that highly
sensitive confidential client information is being
transmitted so that extra measures to protect the
email transmission are warranted, the lawyer
should inform the client about the risks involved.
The lawyer and client then should decide whether
another mode of transmission, such as high-level
encryption or personal delivery is warranted.
Similarly, a lawyer should consult with the client
as to how to appropriately and safely use
technology in their communication, in
compliance with other laws that might be
applicable to the client.”

21.
See also …

22.
To sum up, in every case, you must:
• Assess the tech issues.
• Assess the security issues.
• Supervise the use of technology.
• Supervise vendors and assistants who are
using tech.
• Vet tech vendors.
• Ensure privilege is protected.
• Counsel client on tech and security.

23.
Why it matters

24.
1. Incompetence can
get you in trouble.

25.
Reprimand for
E-Discovery Incompetence
Lack of experience in e-discovery
led to spoliation of evidence.
Lawyer failed to confer with experts
or research legal obligations.
Lawyer improperly advised client
as to its obligations.
-Kenneth Paul Reisman, Public
Reprimand, No. 2013-21, 2013 WL
5967131 (Mass. B. Disp. Bd. Oct. 9, 2013).

26.
“To provide competent representation, … a lawyer should have a basic
knowledge of how social media websites work.”
-Pa. Eth. Op. 2014-5
“Lawyers who use cloud computing have a duty to understand its potential
impact on their obligations.”
-Ct. Eth. Op. 07
“A lawyer engaged in cloud computing must have a basic understanding of the
technology used and must keep abreast of changes in the technology.”
-Ak. Eth. Op. 2014-3
“Lawyers who use cloud-based services must obtain and maintain a sufficient
understanding of the technology they are using to properly assess the risks.”
-Il. Adv. Op. 16-06
Ethics opinions frequently cite the duty

27.
2. Courts expect tech
competence.

28.
HM Electronics v. R.F. Technologies (S.D. Calif.
Aug. 7, 2015)
• Court cites Calif. ethics opinion to emphasize
importance of attorney competency in e-
discovery.
• Finds that defendants did not engage in
reasonable steps to preserve ESI or to
implement a legal hold.
• Imposes sanctions of all attorneys’ fees and
costs incurred in discovery.
• Recommends adverse inference instruction to
jury should matter go to trial.

29.
3. It’s critical to your
future.

30.
4. Clients demand it.

31.
Procertas Legal Tech Assessment
Word
• Accept/Turn-off changes and
comments
• Cut & Paste
• Replace text
• Format text
• Footers
• Insert hyperlink
• Apply/Modify style
• Insert/Update cross-references
• Insert page break
• Insert non-breaking space
• Clean document properties
• Create comparison document
Excel
• Copy/Rename worksheet
• Insert column
• Format column width
• Format text
• Sort
• Filter
• Remove duplicates
• Divide
• Count
• Sum
• Average
• Prepare to print
PDF
• Convert Word & Excel
documents to PDF
• Create single PDF from
multiple files
• Recognize text (OCR)
• Extract page
• Highlight text
• Redact information
• Insert footer
• Create bookmark
• Create internal link
• Remove hidden Info
• Password protect

32.
5. Your bar might
force it on you.

33.
Strategies for Developing
Technological Competence

34.
1. Attend legal tech
trade shows.

35.
2. Take courses.

36.
3. Read up on it.

37.
4. Take advantage of
bar resources.

38.
5. Play around with
products.

39.
How to Keep Up
with Legal Technology
Basics to Advanced

40.
Lawyers must become competent
in using technology, or
competent in over-seeing its use.

41.
Communications
• Basic
• Email security and best practices
• Intermediate
• Client portals for messaging and document
sharing
• Advanced
• End to end encryption apps, like Signal

42.
Cloud
• Basic
• Establish remote access to client files
• Intermediate
• Pick reputable, legal-specific cloud providers
• Utilize cloud services across multiple device formats
• Advanced
• Integrate multiple cloud services for efficiencies

43.
Automation
• Basic
• Utilize document templates
• Intermediate
• Client data entry
• E-signing
• Advanced
• Automated workflows triggered by events

44.
Electronic Payments
• Basic
• Accept fee payments
• Intermediate
• Accept trust deposits
• Advanced
• Create automated payment plans

45.
Video Conferencing
• Basic
• 1 to 1 meetings
• Intermediate
• 1 to many meetings
• Advanced
• Multiple screen sharing

46.
Questions

47.
Robert Ambrogi
lawsitesblog.com
ambrogi@gmail.com
@bobambrogi
www.lawnext.com

48.
Thank You
Joshua Lenon
joshua@clio.com
@JoshuaLenon
Linkedin.com/in/joshualenon
1-888-858-2546