Are Attorneys Stalling Out on Technology Competence…Or Left Behind?

E-Discovery, Technology, Training 0 February 09, 2017 110 Aaron Taylor

Good news seemed to be in the offing as more states moved to require CLE-credited training for attorneys on technology competence, such as Florida did here .  But a recent survey by the ABA as reported by Gibbons E-Discovery Law Alert shows that attorneys may not be taking part in technology training as soon or as diligently as hoped (and as noted by eDiscoveryDaily bloggers).  The survey shows that, of those attorneys contacted, almost half felt they were not ethically obligated to be “up on” technology capabilities and trends, or were unaware that there are more stringent guidelines and requirements.  After all, the ABA did update the Model Rules of Professional Conduct in 2012 on attorneys’ duty of competence related to technology.

But is this disappointing statistic an elephant in the room – indicative of attorneys not wanting to be more ‘techie’?  Many of the responses would indicate another issue – that training resources may not be readily available for those who wish to abide by the ethics requirements; smaller firms and sole practitioners in particular may be more unaware of the new requirements, but some clearly state that they don’t have access to the type and quality of training resources needed, whether materials or training personnel.  This may be an issue even for larger firms, where the focus is on billing time to the detriment of finding and utilizing training resources, or dedicating the time to make use of what is available.

One can speculate that this issue is reflective of a firm not dedicating its own space and people to conduct training; that is, perhaps they intend to have their in-house IT people provide training, or their own eDiscovery specialist(s) to partner with IT to do so.  As if there isn’t enough for these people to do as is, right?  And smaller firms just don’t necessarily have that sophisticated workforce with such specialized staff.  So what can they do to get with the program?

This is probably where the dreaded “consultant” word is expected to pop up, or even (gasp!) “VENDOR”!  Well, maybe that is just what is needed.  After all, if one looks just at this survey…and there are likely others that will show similar results…you would be pretty much compelled to admit that the law firms, for one reason or another, cannot or will not meet the training obligations.  There should not be any shame in this; as in most any profession, the professional (in this case, the attorneys) are not paid to be fulltime or majority-time trainers…just as doctors are not expected to be so, or other professionals…I guess we need to give teachers a pass on this, as teaching/training is what they do, after all.

So there is no good reason why a firm should not look outward, to find qualified and professional trainers in whatever capacity in which they exist.  For some, an eDiscovery software vendor may have just the people needed to fill the role – experienced and knowledgeable IT people who work with eDiscovery tools every day, who can provide very detailed training – perhaps too detailed in many cases, but that needs to be evaluated by the firm and the vendor together.  And there are consultants who are specializing more and more in eDiscovery technical training as the requirements and demand increase.  This is a cost, certainly, but at least now that cost is being presented as part of an attorney’s CLE requirements; it is not just some nagging, trendy, pointy-headed manager’s wild idea, but a necessary part of the attorney’s expected skill set.  And it is certainly an obligation on the part of the eDiscovery industry – vendors and consultants and others dedicated to their profession – to step up and provide informative and competent training where it’s needed so badly…in the trenches where attorneys do their thing.

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