Behind Stables and Saloons: The Legal Profession’s Race to the Back of the Technological Pack
Lawyers have not traditionally been known as technological vanguards. Still, the sluggishness with which they embrace new technology might surprise even the most extreme technophobes. For example, email was commercially introduced in 1983, but it didn’t receive formal approval by greater bar associations or the American Bar Association until 1999. Likewise, law firm websites received a similarly chilly reception, with formal blessing by legal regulatory authorities not taking place until 2010. Even now, the ethics of cloud storage remains unsettled, as the ABA hasn’t weighed in with formal guidance or a model rule, and fewer than half of the states have adopted any rules or guidance on the ethics of cloud computing.
This isn’t a recent phenomenon. Even back in the 19th century, lawyers were failing to adopt the newest technology — the telephone. In 1891, 7,000 businesses in the New York/New Jersey area had telephones. Among those, there were 937 doctors, 363 saloons, 315 stables, and last were 146 lawyers. Lawyers’ biggest technological challenge, then, has nothing to do with a specific technology; the hesitation and reticence with which they adopt any technology is the primary obstacle they must overcome. And, while slow adoption of the telephone may have had only minor adverse implications on the legal profession, in today’s information age, luddite professions or businesses don’t eventually catch up. Like buggy whip makers, music stores, video rentals, and, soon, maybe even taxis, those businesses become extinct.
But it doesn’t have to be this way for lawyers. Today, there are tremendous opportunities for individual lawyers and the legal profession to embrace technology. Here are three suggestions to help lawyers adapt to the information age and avoid extinction.
Consider the Consumer Point of View
Lawyers have spent very little time considering how to deliver legal services that are responsive to consumer needs and demands. Legal services feel like a black box to consumers: They have little visibility into, or control over, what a lawyer does; they just know that they’ll pay a lot for whatever comes out the other end. It’s not only that lawyers don’t know what consumers want — lawyers are regularly dismissive of or even hostile to innovations that respond to consumer demand for legal services. For example, Avvo’s question and answer forum and the Avvo Advisor product have faced resistance from lawyers. Even though Avvo’s question and answer forum has over 7.7 million legal questions and answers, constituting what is the largest aggregation of free legal advice ever collected and all (to Avvo’s knowledge) without a single lawsuit regarding UPL or malpractice, lawyers frequently question whether this type of service is consistent with legal ethics rules. Similarly, lawyers frequently question whether Avvo Advisor, a mobile app that allows consumers to purchase on-demand legal services with a lawyer in 15-minute increments, violates the ethical rules in many states that prohibit the division of legal fees in certain ways, in spite of overwhelming consumer satisfaction with the service and thousands of positive reviews.
Today’s clients are being conditioned to consume goods and services online in new ways, and it is incumbent on lawyers to understand how to adapt those ideas into their practices. If a consumer can instantly hail a ride to the airport on his or her mobile device from a nearby driver using Uber or can have a package delivered to his or her home in one hour via Amazon Prime Now, they are going to expect the same for their legal services. Lawyers must take time to understand the on-demand information economy and how those ideas can be applied to what they do.
Improve Competence with Basic Technology Tools
In 2013, while in-house at Kia Motors, Casey Flaherty, the ABA legal rebel, decided to do something about the technological incompetence that he knew beleaguered his outside counsel and, more significantly, cost him money. He developed a test, what he called a “technology audit,” that evaluated his outside counsels’ ability to complete relatively simple tasks using Microsoft Word, Excel, and Adobe Acrobat. And, he timed them. The results were not impressive.
Fast forward two years. Casey has left Kia to pursue the audit full-time. As the head of a new endeavor, Procertas, Casey is challenging legal educators, legal regulators, and, yes, legal clients to demand increased technological proficiency from lawyers. It might not happen tomorrow, but if he has his way, lawyers will have to be as familiar with the tools of their trade (Word, Excel, Acrobat) as a carpenter is with a saw or hammer. Lawyers whose Word, Excel, or Acrobat skills have gotten rusty (or never existed) should start sharpening their proverbial technological saws.
Adopt Comment 8 to ABA Model Rule 1.1
In 2012, the ABA adopted comment 8 to ABA Model Rule 1.1:
 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.
Though its language is nonbinding, comment 8 is important for two reasons. First, because it is part of the ABA Model Rules, comment 8 is viewed as the national standard for local regulators drafting or updating Rule 1.1. Second, comment 8 is very likely the first iteration of a coming ethical duty of technological competence. Beyond the fact that basic technological competence should be expected in an industry in which the lawyers receive extensive, not to mention, expensive, higher education training, lack of technological competence among lawyers cannot and should not be tolerated when there is so much inefficiency stemming from technological naiveté, as discussed previously. This is especially true when technology can do so much to address the significant gap in access to legal services.
Although the ABA formally added comment 8 to the model rules three years ago, it has only been adopted by 14 states, perpetuating lawyers’ technological lethargy. Lawyers everywhere should push their local regulatory authorities to adopt comment 8 to ABA Model Rule 1.1. Doing so is an affirmative statement that technological competence is a central part of the evolving legal profession.
Lawyers lag behind their clients (the general population) and even other professions in adopting new technology. Unfortunately, this is not a recent phenomenon. However, the pace of technological change and the pervasive use of technology in society means it may not be that hard for lawyers to catch up. adopting these simple suggestions, lawyers can begin to make the needed changes to adapt to the current technological paradigm and, hopefully, lead the charge rather than be left behind.
Mark Britton is the founder and CEO of Avvo, the world’s largest community for legal guidance and services. Prior to founding Avvo, Britton was the executive vice president of worldwide corporate affairs of InterActiveCorp Travel and Expedia, Inc. He was also Expedia’s first general counsel and, today, he sits on the board of directors of Orbitz Worldwide. Britton earned his law degree from George Washington University and a degree in finance from Gonzaga University.