Board considers enhanced technology CLE component
Board considers enhanced technology CLE component
‘If you are going to be competent in the practice of law, you have to understand technology related to your practice area’
Mark D. Killian
The Board of Governors is reviewing the overall CLE requirement of 30 hours every three years, and considering whether some of those hours or additional hours be devoted to technology training.
The recommendation to increase the mandatory CLE requirement to improve the technological competence of Florida lawyers came from the Vision 2016’s Technology Committee. The Bar’s Program Evaluation Committee approved the recommendation and the Board of Governors took it up on first reading when it met in Key West May 22.
In bringing the recommendation to the board, John Stewart, chair of Vision 2016’s Technology Committee, said that after two years of study, his committee concluded that lawyers cannot practice law competently if they don’t have a basic level of technological competence in their practice area.
Stewart said the ABA three years ago added a comment to its model rules that lawyers should stay up on the benefits and risks of technology relevant to their practice areas. Since then, 13 states have modified their rules to follow the ABA model. The Vision 2016 panel is also recommending the comment to the Bar’s competency rule — Rule 4-1.1 — be amended to say lawyers should have technological competence in their practice area. The comment would also stress that lawyers understand issues relating to preserving the confidentiality of electronic communications.
“If you are going to be competent in the practice of law, you have to understand technology related to your practice area,” Stewart said. “How do you do that? Through association — you hire an expert to associate with — or through study.”
Stewart said the Vision 2016 tech committee recommended an increase to 36 hours because the panel felt there needed to be a mandatory technology CLE component and didn’t think it could be accomplished within the current 30 hours without diluting the other CLE requirements, such as ethics, professionalism, substance abuse, as well as the substantive areas of law training.
He added that the committee collected CLE information from 45 other states and found only one requires less than the 10-hour annual average that the Bar mandates, and five other states along with Florida have the 10-hour standard. Thirty-eight states require more. Three of four nearby states — Alabama, Mississippi, and Georgia — require 36 hours, and South Carolina mandates 42 hours every three years. Likewise, among other large state bars, New York requires 36 hours and Texas requires 45.
Stewart noted that 2015 is the 30th anniversary of mandatory CLE in Florida, and the 30-hour standard has not changed since its inception.
“So we are at the bottom in terms of CLE requirements,” Stewart said. “We are also a state where getting CLE is easy.”
The Bar makes CLE available online, on demand, with 24/7 access and provides enough free CLE per year so that any member can fulfill his or her 10 hours per year requirement with complimentary CLE.
Bar President Greg Coleman said if Florida makes tech CLE mandatory, it will be the first state to do so.
Why the Need?
In its study, Stewart said, the Vision 2016 Technology Committee found an appalling lack of technological competence in lawyers.
“We don’t even know enough to know what we don’t know,” he said. “That’s how bad it is and we have to get caught up.”
As an example, he said the Florida Courts Technology Commission is advancing a rule that lawyers be responsible for deleting confidential metadata from e-filings. (See story, page 1.)
Adriana Linares, president of LawTech Partners, Inc., who advises the Bar on technology issues, asked if board members believed that converting a Word file to a PDF strips the metadata out of a document.
“Totally not true,” she said. “How many think your PDF files are completely secure and not editable? Also, not true.”
Stewart said lawyers keep a vast amount of confidential client information and have a duty to safeguard it. Linares also noted law firms are increasingly becoming major cyber targets for hackers and thieves.
Looking around the room and noticing how many board members were using tablets to review board materials, Linares said: “You are all connected to the free Wi-Fi in here and with my little Pineapple, I could intercept all of your communications right now, if I wanted to.”
(A Pineapple device mimics nearby wireless networks so electronic devices will connect to it, leaving data on those devices vulnerable to interception.)
Linares said the fact that many lawyers don’t know “some of these very basic things” is harmful to the profession.
“A lot of them think they don’t need to know; they think that’s what they have an assistant for,” Linares said. “I’m here to tell you that your paralegals and assistants are no more technologically competent than you are. You just think they are because they are fast typers and can figure out things on the computer a little faster.”
Technology is Everywhere
Linares said every aspect of a legal practice is now being affected by technology.
“There is not one area of law that is not being affected by technology,” she said. “If I started to rattle off the issues that I see every day from mobile devices to security to data issues to Word documents to PDF documents to social media, every single piece of it is getting messed up and ignored by lawyers.”
Board member Sandy Diamond said while she doesn’t think the Bar requires enough CLE now and supports efforts for more technological competence, there needs to be a specific technology curriculum identified before going forward.
“What are the skills we are trying to impart to everybody?” Diamond said. “What is the core competence that you think all lawyers need to have?”
Stewart said the committee was not comfortable with setting out a specific curriculum because technology is changing so rapidly. That’s also why the Bar recently created the Practice Resource Institute (PRI) to stay on top of the changes and help keep members informed. Stewart also said it is envisioned that a lot of tech CLE courses will be free.
“Obviously different lawyers have different levels of technologic competencies,” Stewart said. “Some are extremely incompetent and some are extremely competent. We would like for lawyers to be able to take technology CLE that most suits what they need to do. That is the hard part about defining one set of curricula.”
Board member Laird Lile of Naples said he does not believe in the Bar mandating more than is absolutely necessary and does not want to see the number of CLE hours increased. He said the Real Property, Probate and Trust Law Section is already integrating tech issues into its CLE courses.
“We are not having a seminar on technology stuff,” Lile said. “We are having a seminar on how to record deeds, how to do probate administration, and how to e-file. And so it is part of that. I really think that is the delivery mechanism that this group ought to encourage.”
Board member Paul SanGiovanni of Orlando said he is for adding six hours of mandatory tech CLE, but does not want to increase the total number of hours in the reporting cycle.
Board member Skip Campbell of Ft. Lauderdale said when he was in school, typing classes were not offered, and that is a skill he is never going to be very proficient at.
“I can honestly tell you that without my staff of excellent paralegals, without my staff of some very young lawyers who try to teach me what a PDF is, I don’t think I could do it,” Campbell said. “So that means that for me — that hour is probably going to be wasted. Two hours is probably going to be wasted. To say to our membership that you are all going to have to get to this minimum level or else, I think that is the wrong message to send.”
Board member Brian Burgoon of Atlanta said if the recommendation is approved, the tech CLE requirement will be unique to Florida and out-of-state members will not get credit for taking those technology courses in their home states. He also wanted to make sure free and online tech CLE is available so out-of-state members won’t have to travel to Florida to attend the seminars.
Coleman urged the board to talk about tech CLE with their constituents before the board’s July meeting.