As in other professions, the practice of law has become highly automated and dependent on technology for functions that people previously performed manually. For example:
- Office and case management software, including electronic calendars and tickler systems, help prevent missed court and agency filing deadlines and keep lawyers on top of their client work.
- Zoom and other Internet-based video-communication programs allow hearings, client interviews, depositions and other activities associated with the practice of law that are normally in-person to happen remotely, depending on the local court rules. Of course, this has become clear because of the current public health crisis.
- Lawyers can usually file court and agency documents on behalf of clients electronically. Many courts and agencies require this.
- Attorneys and their colleagues can usually perform both legal and factual research comprehensively on the Internet.
- Most law firms store, organize and access client files and documents digitally.
- Attorneys often have electronic access to court dockets to keep up with developments in their client’s cases.
- And others
How can technology – or lack of technology or old technology – raise attorney negligence concerns?
As we have discussed before, an attorney has the duty of care to a client equivalent to that of the average lawyer in the particular circumstances of the representation. The duty of care requires an attorney to have the legal knowledge, competency, diligence, skill and other, similar professional traits required for adequate representation.
Lawyers and law firms have historically had the image – rightly or wrongly – of being resistant to technological change that impacts the practice of law. What if an attorney fails to use technology the average lawyer does or utilizes an electronic tool without adequate training, causing a mistake that hurts a client’s legal matter, such as missing a deadline for filing a lawsuit?
Or, what if the lawyer missed an important case that impacts the client’s legal issues, but would likely have found it had legal counsel used a computerized legal research system that is more up to date than traditional book research?
As Ronald Mallen writes in his treatise Legal Malpractice, “Technology evolves at a pace exponentially faster than the typical corresponding level of knowledge of the average lawyer or law firm. The standard of care, however, tends to keep up with technology and not necessarily the resistant lawyer.”
According to one legal malpractice insurer, technology in the practice of law has exploded in the past decade, not only lessening the chances of mistakes but also setting expectations of competency and diligent, proactive electronic record maintenance in order to reap the benefits of fewer errors.
More antiquated systems may not satisfy today’s standard of care as concerns currency and quality of technology used on average in the profession.
Anyone who suspects that their attorney may have violated their professional standard of care as it concerns technology in the practice of law and harmed their case or compromised their legal rights should discuss the details with a legal malpractice lawyer.