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Gotta have a fiddle in the band

by Joe Kaczrowski | Oct 28, 2015

One reason people choose the solo or small firm route is the autonomy, the ability to decide how your business will operate. Small business owners often revel in the freedom to set their own hours, hire who they want if and when they want, work where they want, and even be selective about potential clients. While you may not have to slip a weekly envelope to Patsy, there are certain requirements to both running a business and practicing law.

The state of Minnesota offers a lot of resources on the former. And many of the obligations for the latter stem from the Rules of Professional Conduct. One such requirement is a lawyer’s duty pertaining to technological competence. While this is not a new obligation, an amendment to the Comments has placed added emphasis on the subject.

There are many (loud) voices offering opinions on how a lawyer satisfies this duty. Oftentimes this advice comes in the form of “a lawyer needs to use ____” or “a law firm cannot survive in today’s market without ____.” Some of these suggestions include cloud systems and storage, encrypted email, secure client portals, practice management software, and document automation and assembly. Some states have issued ethics opinions relating to certain technologies, like cloud computing.

Whatever the fiddle, it’s good to remember that the obligation created by the Rules is not adoption but rather an understanding of the benefits and risks of relevant technology. The Rule doesn’t say a lawyer must use cloud computing but rather that to maintain the requisite knowledge and skill a lawyer needs to keep abreast of changes and specifically the benefits and risks posed by using (or not using) that technology.

Some states, like Wisconsin, offer factors a lawyer must consider when keeping abreast of changing technology. These factors further suggest that the reasonableness of the use of certain technologies may vary from client to client and case to case.

Regarding legal technology, the simple answer may seem to be that if you want to practice law in Minnesota you need to have _____. In reality, however, the duty is perhaps somewhat cloudier (pun intended). You may not need to have a fiddle, but you need to be knowledgeable about consequences both of use and also non-use.

One way to maintain the requisite level of knowledge and skill is through tools like Casey Flaherty’s Legal Tech Assessment. The LTA helps lawyers (and/or their “people”) demonstrate competence with basic office technology essential to the practice of law. You can learn more about the LTA in general and the Minnesota-specific version currently in development at the MSBA’s tech conference on November 5.