Future tense

Lawyers may be slow to change and stress over technology, but the future of law practice demands data protection, a Virginia State Bar committee says. Running a law office of any size requires technological competence, the panel emphasized in a new report.

The VSB’s Special Committee on the Future of Law Practice maintains all lawyers need to be aware of legal technology, especially cybersecurity and data privacy. Law schools should “comprehensively” teach legal technology and regulators are urged to authorize more law practice management CLEs, the committee said.

The futures committee, which released an interim report in 2016, also recommends continued study of alternative practice and marketing models, including what the bar terms “Attorney Client Matching Services.”

The futures report, released March 13, is available on the VSB’s website.

While the report addresses access to justice, alternative business structures for law practice and attorney well-being, the immediate and critical need for protection of law office data and client confidentiality in the digital age dominates the message from committee leaders.

“We feel the anxiety of lawyers facing a digital world that is often foreign to them – hence our emphasis on the need to educate lawyers and identify developments so they can find their place in that world, be competitive, and provide high quality legal advice and professional services,” the committee said in an introduction.

Get on board with cybersecurity

The emphasis on legal tech is not surprising. Outgoing futures committee chair Sharon D. Nelson is a tireless exponent of the tech-savvy lawyer. New committee chair Kellam T. Parks is a devotee, adopting a paperless office and using digital technology in all aspects of his practice.

Lawyers – especially those in solo and small offices – may resist, but adopting new technology is not only a necessity, it can be a time and work saver, the leaders said.

“Most professionals are slow to change, and I believe the legal profession is slower than some,” Parks said.

“You still have lawyers who don’t want to learn it. They would rather retire than learn technology. But the benefits are so great,” Nelson said. And clients now expect some degree of technological proficiency, she added.

Lawyers who take two hours to perform a task will be upended by lawyers who have figured out how to do that job in 15 minutes, Nelson said.

But the most compelling reason for calling in IT help at a small law office is that it’s the only way to meet the demands of Rule 1.6 of the Rules of Professional Responsibility.

“To have a prayer of compliance, you’re going to have to secure information and preserve client confidences,” Nelson said.

“We’re not pushing that everybody needs to be on the cutting edge or using the most modern technology. Just make sure you have your local server secured,” Parks said.

He pointed to comments 19 through 21 of Rule 1.6, emphasizing the duty to protect client secrets.

“The Virginia State Bar has given you a road map of things you need to think about and what your duties are,” he said.

Parks adds that the lawyers themselves do not have to learn how to protect their computer files, as long as they get someone competent to do it.

“You do not have to be a tech genius – just find someone who’s good. Find a tech person,” Parks said.

Law schools have a role to play, according to the committee report.

“Law schools are realizing you can’t send them out into the legal world without some knowledge of legal technology,” Nelson said.

Flat fee programs

The committee’s first recommendation is for further study of what the bar has termed “Attorney Client Matching Services.” The landscape is “uncertain and varied,” the committee said.

Avvo Legal Services pioneered the concept in Virginia with a website offering common legal services, such as wills and divorces, for fixed legal fees. Under scrutiny by regulators in Virginia and elsewhere, Avvo’s ACMS experiment ended last summer, just months before the Supreme Court of Virginia officially condemned the practice model in Legal Ethics Opinion 1885.

But officials who found fault with “marketing fees” and non-lawyers defining the scope of service say there are other practice models on the horizon that don’t run afoul of ethics rules.

“There are ways to do ACMS within the rules,” Nelson said. The committee urged caution.

“We don’t want to go too fast, because it could be a mistake. We don’t want to hurt the public,” Parks said.

“We want access to justice, too, but it’s got to abide by the rules,” Nelson said.

Legal Education

The futures committee has some suggestions for lawyers’ continuing legal education. The panel recommended that the VSB’s Mandatory Continuing Legal Education Board consider approving courses focusing on law practice management and lawyer well-being.

“Appropriate practice management promotes the efficient, ethical and competent practice of law,” the report said.

Currently, however, “it’s not always easy to get credit for practice management,” Parks said.

Access to justice

Movement to close the access-to-justice gap “has been difficult, and some would argue, too slow,” the futures committee said.

The report noted recent developments, including:

• A pilot project approved by the Supreme Court of Virginia to allow limited-scope representation by legal aid attorneys and – with court approval – by any attorney,

• Voluntary reporting of pro bono legal services,

• Tolerance of undisclosed ghostwriting for pro se litigants and

• Encouragement of retired attorneys to do pro bono work as “emeritus” lawyers

The committee urged bar associations and attorneys to partner with legal aid and pro bono programs to broaden access to justice through the limited-scope options.

The futures committee report covers these and other topics, often in great detail. Artificial intelligence, blockchain and cryptocurrencies are addressed.

While the VSB heralded the document as the committee’s “final report,” the futures committee nonetheless has a future.

“It doesn’t have a sunset as of now,” Parks said. He will assume the chair as Nelson’s term ends at the next meeting in the fall.

“We realized the future is still coming,” Nelson quipped.

Parks said the committee will continue reporting on its study of new publications and its question and answer sessions with legal innovators.

“It’s really an investigative role,” he said.