My guess is that while most US readers will know what I am talking about, most readers this side of the Atlantic will not have a clue!
Let me start with an uncontroversial suggestion that, in order to act in the best interests of clients and comply with their ethical obligations and those imposed by statute or legislation/rules, lawyers today need a modicum of understanding of and familiarity with technology.
If you are with me so far, you will not be surprised to hear that at least one general counsel makes his lawyers undergo technical audits before hiring them. Casey Flaherty, corporate counsel at Kia Motors America admits that no one has yet passed his tests. So what does he do?
He gets them to undertake tasks which, in a tight beauty parade, could be a tie breaker with the lawyers showing some skill in this area edging out others with lesser experience. More often than not, it is an opportunity for Mr Flaherty to negotiate fees downwards to take account of the time lawyers will take to complete a task inefficiently when there is a better way of doing it. The incentive for the lawyers is to acquire the necessary skills to enable them to pass a subsequent audit or to implement certain processes during a job which may allow for an increase in fees if the job is well executed and the lessons learned.
There is a short five minute interview on this subject where Mr Flaherty talks to Monica Bay of Legal Technology News at Casey Flaherty on Tech Audits.
This is all of a piece with a recent Georgetown Law School programme called E discovery for Federal Government Practitioners (although there is no reason why it should be limited to that particular class of lawyer).
Federal Magistrate Judge John Facciola from the District of Columbia, is said to have stolen the show by talking on one of his favourite topics, that lawyers must educate themselves about technology if they are to comply with the ethical rules which bind them and to discharge their obligations to their clients. He introduced the topic of Mr Flaherty’s tech. audits and quoted Flaherty as saying “If veteran judges like [Shira] Scheindlin, [Andrew] Peck, and Facciola can get it, why not outside lawyers.”
In nineteenth century America, the saying “hang a shingle” meant to open a new professional office because the custom was to put up the name of the professional written on a shingle or roof tile. Think of the old westerns we all used to watch!!
Judge Facciola’s conclusion is that “The notion of just hanging a shingle and not taking time to understand the technology runs afoul with the (ethics) rules.”
The judge certainly has a way with words, but it is hard to disagree with him and the sentiment he expresses.