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June 26, 2017

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The Consequences of Technological Incompetence

by contributor
Scale of justice
It can cost you dearly for being too proud (or lazy) to learn how the Internet, social media, and that box on your desk work.

Scale of justiceBeing a Luddite can be expensive, embarrassing, and potentially disastrous for lawyers and clients. Tech incompetence can result in wasted time (and therefore increased cost to the client), loss of money and identity, ethical sanctions, and embarrassment or worse in the courtroom. Those are high prices to pay for being too proud (or lazy) to learn how the Internet, social media, and that box on your desk work.

Don’t believe me? Here are some examples of the problems that can arise.

Out of Touch
Almost nobody but lawyers and junk mailers uses the post office to communicate anymore. Just about everyone else primarily uses email for nontrivial communication. Email has been around for over 20 years, and it is free, reliable, and much faster than the post office. Probably for these reasons, many courts require lawyers to have a working email address on file to receive case notifications.

Still, some lawyers are reluctant to adapt. You probably know a lawyer who has their secretary print out all emails so they can read them on paper before dictating or writing out responses in longhand for their secretary to transcribe. This is a ridiculous waste of time, of course, and no client should have to pay for such inefficiency. But it is not yet rare, either.

One South Carolina lawyer figured she didn’t have to have an email address if she didn’t want to, even though she was involved in ongoing proceedings. She only got one after a court order (in a discipline case, no less), and then she set it up with an auto-responder. The Supreme Court of South Carolina refused to indulge her:

Respondent … is … a regular member of the South Carolina Bar and, therefore, pursuant to Rule 410(g), SCACR, required to provide a valid email address. — Supreme Court of South Carolina Order in Appellate Case No. 2012-213164.

Procedural requirements aside, an email address is at least as essential as a mailing address. Have your secretary print out your message for you so you can respond in longhand if you must, but you need to be able to use email one way or another.

The Failure to Google
“We have not quite reached the level of ‘if you can google it, you must,’ but we are fast approaching it.” — Megan Zavieh, Lawyerist.com.

Courts have started to lose patience with litigants who complain they didn’t know something they could easily have found online. In Munster v. Groce , for example, the plaintiff tried to use alternative service through the Secretary of State because it couldn’t find the defendants to serve them. The court did a quick Google search and lost its patience:

In fact, we discovered, upon entering “Joe Groce Indiana” into the Google search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce’s mother that listed numerous surviving relatives who might have known his whereabouts.

Search is ubiquitous. In fact, it is even common to use search on smartphones to settle arguments in real time. Basic search skills are basic tech competence — even for judges. There is no formal duty to Google, but since you can, why wouldn’t you? Search for information about your clients, other parties, witnesses, maps — anything that can give you an advantage.

You may not have a duty to Google, but you would be foolish not to.

Wasting Clients’ Money
Clients are starting to notice when their lawyers’ technological competence results in wasted time. In 2012, Kia Motors corporate counsel D. Casey Flaherty began administering a technology audit to Kia’s outside counsel. The audit tested their ability to perform fairly basic tasks with Word, Excel, and Acrobat. Flaherty’s reasoning was that his company should not be paying lawyers to fumble their way through basic tasks. More importantly, Flaherty was tired of getting badly-structured Word documents and seeing improperly-redacted PDFs. The former wastes his time. The latter can result in big problems. If the lawyers failed the audit, Flaherty cut their rates. They all failed.

I’ve administered the audit 10 times to nine firms (one firm took it twice). As far as I am concerned, all the firms failed—some more spectacularly than others. The audit takes me 30 minutes.… The best pace of any associate was two-and-a-half hours. The worst pace was eight hours. Both the median and mean (average) pace rounded to five hours.

I’ve taken the audit, and I think it fairly tests basic proficiency with Word, Excel, and Acrobat. Anyone who fails it twice (I would chalk up the first time through as a learning experience) deserves to have her rates cut not just for wasting time while she fumbles with software, but for increasing the chance of mistakes and producing objectively inferior work product.

Of course, the audit only tests three software applications. If a lawyer manages to pass the audit, it probably means he is not hopeless, but it hardly means he should be considered technologically proficient. Flaherty just established a floor. And while rate-cutting was a potential consequence of poor performance on the audit, he was more likely to recommend improvements to improve systems and proficiency.

True to form, the outside counsel were happy to change once money was on the line. Sooner or later, smaller clients than Kia will start asking pointed questions about their lawyers’ technological competence, too.

Technological competence doesn’t just mean knowing how to use hardware and software. It also means being smart about online services like malicious attachments in emails and recognizing when a helpful caller is actually a hacker using social engineering techniques.

A San Diego lawyer learned this the hard way when he clicked a link or attachment in an email he thought was from the U.S. Postal Service. In fact, it was a virus that allowed a malicious hacker to spy on his online activity. But it wasn’t hacking that caused his clients to lose $289,000; it was foolishness and a bit of well-timed social engineering.

The virus disrupted the lawyer’s access to his firm’s bank accounts. While he was trying to log in to the bank’s website, someone called the lawyer, pretending to be a representative of the bank, and offering to help him log in to his accounts. The caller instructed the lawyer to enter a code to gain access. Of course, the code was apparently an authorization to transfer funds. It didn’t work the first time, but the hacker called back two days later and the lawyer helpfully entered the code again. The same day, the hackers transferred $289,000 from his firm’s bank account to a Chinese bank.

So far, the bank has refused to cover the loss. Good lawyers should be able to do a better job protecting their clients’ funds.

This post by Sam Glover originally appeared on Lawyerist.com. Glover is the keynote speaker for the upcoming 2017 Annual WSBA Solo and Small Firm Conference on July 14-15 in Lynnwood, Washington. Session topics include Technology Tips You Can Start Using Now, The Ethical and Professional Considerations of Running a Home Office, What Insurance You Need for Your Small Practice, and much more. Read the full article, including information on government surveillance, e-discovery, and social media as evidence.

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