Not Competent in Basic Tech? You Could Be Overbilling Your Clients—and Be on Shaky Ethical Ground
By Ivy B. Grey
No part of legal work is unaffected by the duty of competency. And now that’s true for the duty of technology competence, too. It requires lawyers to be competent in every tech tool that we use to serve our clients, not just fancy data security tools, but regular tools like MS Word.
Whether the impact of technology makes you afraid or excited, we should all be thinking about the ramifications of ABA Model Rule 1.1. If incompetent representation means unreasonable fees, then failing to become competent in technology would also lead to unreasonable fees. This may be more than a billing write-off—it may constitute an ethical violation.
Duty of Technology Competence
After the ABA Commission on Ethics 20/20 studied technology in law, it revised the ABA Model Rules of Professional Conduct (the “Model Rules”). The text of Model Rule 1.1 requires lawyers to provide competent representation. Comment 8 to Model Rule 1.1 now goes further, providing that “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.” The revision brought focus to the concept of technology competence and clarified that maintaining technology competence is part of meeting the well-established duty of competence. Now we know that the duty of competence includes both substantive knowledge of law and awareness and competent use of the tools that lawyers use to practice law.
Then, in February 2017, the ABA adopted a revised Model Rule for Minimum Continuing Legal Education. To encourage access to high-quality technology programs, the resolution recommended accrediting technology MCLE programs that provide education on safe and effective ways to use technology in law practice. The revised MCLE requirements are important because they reinforce the fact that the duty is continuing and that mere exposure to technology is not enough.
Technology in Practice
Technology competence is broad. However, its definition must include the tools that lawyers use to practice law, such as case management software, document management software, billing software, email, a PDF system with redacting capabilities, and the MS Office Suite, particularly MS Word. Any lawyer who does not develop basic skills in these six types of programs will risk ethical rebuke.
Data security and e-discovery may get attention in the press, but lawyers should not neglect learning about the mundane tools that they use every day. Document preparation, drafting, and polishing consumes a significant amount of every lawyer’s time regardless of practice area. And MS Word is more sophisticated with greater capabilities for meeting our complex needs than you might otherwise think. It is an area ripe for learning. Ignoring that touches on bigger issues like unearned fees.
Willful Incompetence
By remaining technologically incompetent, lawyers are knowingly wasting clients’ time and money due to lack of computer skills. That is unacceptable. It is time to recognize that inefficient use of technology, such as MS Word, could mean overbilling a client. When lawyers choose not to learn technology because the old way of doing things leads to more billable hours, they are not serving their clients fairly. And if Model Rule 1.1 did not catch your attention, then Model Rule 1.5 should.
Under Model Rule 1.5, a lawyer may not collect an unreasonable fee. Lawyers have an ethical obligation to work in a cost-effective manner and to avoid churning hours. This means that the right person should be performing the work, using the right tools and technology. When a lawyer spends billable time manually performing easily automated tasks or fruitlessly fiddling with MS Word because they haven’t learned styles or tracked changes, then that fee is not truly earned. The corresponding bill would not be reasonable under the circumstances. And billing clients for this busywork looks a lot like systematically collecting unearned fees, which is tantamount to stealing.
Billing Doesn’t Justify a Breach
Between the updated Model Rule 1.1, Comment 8, and the revised MCLE rules, there are no business, practical, or ethical excuses to avoid learning about, understanding, and adopting technology. Yet, at the same time, we must recognize that there are perverse incentives that encourage lawyers to refuse to learn technology—the main one is the billable hour. Increased financial rewards for increased hours encourage lawyers to bill as much as possible for every matter. It’s an incentive structure where lawyers are working in opposition to their clients’ interests.
The seemingly-innocuous decision to skip technology training can lead to overbilling. And if you are deliberately avoiding technology because it means that you can bill more, then you are definitely overbilling. Do not confuse this with a clever billing scheme. This is not “just business”—this behavior is an ethical breach.
Thinking about the duty of technology competence in conjunction with reasonableness of fees re-centers the discussion on providing client service. The new rules are about more than new gadgets: The Model Rules and MCLE requirements exist to encourage lawyers to serve our clients better. It’s time to put our focus there.
Ivy B. Grey is the author of American Legal Style for PerfectIt, which is a proofreading and editing program for lawyers that runs inside of MS Word. It adds polish, reduces frustration, and saves non-billable time. Ms. Grey is also a Senior Attorney at Griffin Hamersky LLP. She's been named as a Rising Star in the New York Metro Area for four consecutive years, and her significant representations include In re AMR Corp. (American Airlines), In re Dewey & LeBoeuf LLP, In re Eastman Kodak Company, and In re Filmed Entertainment Inc. (Columbia House).
This article was originally published in ABA Journal's New Normal on May 15, 2017.