Is Understanding Technology A Paralegal's Job Or An Attorney's Job?
By Jeff Bennion
In a perfect world, the attorneys and the paralegals would both understand how technology works and they would work in an efficient harmony. That’s not always the reality, though. Often, we as attorneys get so busy in the practice of law that we put off following the latest technology trends. By the time we finally learn how to take an effective expert deposition, we realize that we are behind in understanding the latest in technology-assisted review or the ethical implications of cloud storage of client files, and we try to outsource those duties to our legal staff.
It’s not our fault, though — law school taught us from the very beginning to focus only on the theory of law as if practical skills never existed. Just look at the bar exam and ask yourself how many times have you or anyone you have ever known ever had to challenge POTUS’s ability to appoint major Cabinet members without congressional approval? How many of you practice criminal law and live in a state that has adopted provisions of the Model Penal Code? Those are mandatory law school classes and a good portion of the MPRE and possibly essay portion of your bar exams. On the other hand, how many times have you had to draft billing entries so they aren’t cut by the client? How many of you have had to draft a pleading and get the row numbers to match up with the lines of text or prepare a table of authorities or a table of contents or upload a document to ECF?
Undoubtedly, there are responsibilities that attorneys can (and maybe should) put on the shoulders of legal staff. But to say that the attorney doesn’t need to know these solutions at all is like saying a pilot does not need to understand wind currents, just how to get from Point “A” to Point “B.” Increasingly so, our trips from Point “A” to Point “B” are involving technology and can even be driven by technology. We’ve seen this in the last few years with the supplementing of ABA Model Rule 1.1 on Competence with Comment 8, which reads:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
We’ve seen California post and repost in the last few years proposed opinion 11-0004 on all litigators’ duties to understand e-discovery concepts:
Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.
What Attorneys Must Know
Being familiar with certain technologies can change the path we take to get things done on our cases. Mechanical things such as how our billing entries are entered or what type of software is used to OCR files can be put off on the paralegal or legal staff, but it is important that