Once a new technology rolls over you, if you’re not part of the steamroller, you’re part of the road.
We are living in the midst of a communication revolution.
The ability to communicate, connect and exchange information with speed and efficiency has in turn “sped up” the pace of life, with technology being a primary driver of unprecedented change.
According to the United Nations, it took radio broadcasters 38 years before they reached an audience of 50 million people, just 13 years for TV to reach that point and only four years for the internet to achieve that milestone. Now, more than 500 million users are active on Facebook. There are 1 billion YouTube users worldwide and 300 hours of video are uploaded to YouTube every minute. No longer the playground for kids and bloggers, social media applications on smartphones allow users to share information and experiences from anywhere in the world with anyone.
So what does the communication revolution and technology uptake mean for lawyers?
Lawyers and The Move to Tech
As discussed in Kristin Hazelwood’s 2014 paper on technology and communications, gone are the times in which the lawyer’s choices for communicating with clients involve the preparation of formal business letters to convey advice, in-person office meetings or telephone calls with clients on landlines from the confines of the lawyer’s office.
Lawyers once communicated with clients only by telephone, in person, by facsimile or by letter and then we began to email as a way of communicating and corresponding with clients. Email has now simply become a way of life.
Confidential information was only stored in physical storage units, locked cabinets, and offices or on desktop computers linked to a firm server. Now, lawyers communicate with clients electronically, and store confidential information on mobile devices, such as laptops, tablets, smartphones, and flash drives, as well as on law firm and third-party servers (ie, the “cloud”) that are accessible from anywhere.
And whilst it may be true that some lawyers are still adapting to the use of email, the percentage of the profession jumping on the social media train is increasing day by day. A 2013 technology survey conducted by the American Bar Association revealed that 27% of law firms now have a blog, 59% of firms maintain a social media presence through platforms such as LinkedIn and Facebook and amongst individual lawyers, 81% now say that they use social networks for professional purposes, up from 78% in 2012, 65% in 2011 and 56% in 2010.
With so many electronic communication choices, how do lawyers decide how best to communicate with clients and will consumer needs drive change in lawyer behaviour? What are the barriers to change?
The Queensland Law Society cites the following most common communication barriers for lawyers:
- Failing to direct conversations to a required outcome in a timely manner,
- Taking your knowledge and clients for granted,
- Delegating activities to other individuals within the firm without informing clients, and
- Forgetting to provide the client with feedback and regular updates.
The interesting question is whether technology can provide a solution to any of these behavioural barriers. Can technology be used to support and complement face-to-face communication in a beneficial way? And do the benefits outweigh any security or privacy risks?
Can Technology Improve Lawyer/Client Communication?
A range of tools now exist to support lawyer/client communication: from email to live video and messaging platforms, cloud-based systems, conferencing tools and social media forums.
So how will these tools help you in your practice?
Well, if a client is in a remote or regional area or is disabled and cannot attend an actual conference at your office, communication and access to law can be increased simply by effective use of technology. A client may want connect without the time and cost of travelling to your office. You may be a lawyer who wants to run a virtual practice to achieve mobility and flexibility in your working life in which case technology will become your best friend when to comes to communicating with clients.
Legaler is soon to launch its cloud-based web and mobile platform for lawyers, which will be accessible across all devices from your PC to Mac to Iphone. The aim is to bring lawyers and clients closer together, to foster good communication and to provide an integrated client portal where clients can check in and find a progress update about their matter without being billed every time they call their lawyer for an update.
The “pain points” for lawyers and clients are often the same: lawyers don’t want to bill clients unnecessarily for wanting to know how their matter is progressing and clients don’t want to be charged for checking in. We’re excited to launch our product very soon as a way to improve the delivery of legal services and keep clients happy and informed. Giving your clients 24/7 mobile access to all communications and files in one secure place will not only empower clients, it will give them a greater sense of inclusion and ownership of their matter.
So the only other question to ask is: are lawyers afraid to take up new technologies because they may compromise their ethical or legal obligations?
Technology Challenges – Confidentiality, Privacy and Data Security
The most oft cited barriers to use of emerging communications and cloud-based platforms are the following issues: confidentiality, privacy and data security. Lawyers have an obligation to ensure that client confidence is maintained and that the client’s data is secure and protected which has resulted in the profession being rather slow to commit to the cloud.
“I’m not a fan of the cloud”, you might hear a lawyer say. But what if your client is?
Ms Hazelwood from the University of Kentucky provides an interesting insight into the ways in which Ethics Committees in the United States have scrutinised various forms of technology and how their attitudes have changed over time. Firstly, she points out that mobile telephones were the first technology to be subject to scrutiny by ethics committees because mobile phones were believed susceptible to interception because of the technology used in transmitting signals: radio waves.
The use of radio waves increased the risk of interception of mobile telephone conversations because even unsophisticated devices like baby monitors use radio waves. Specifically, a third party could potentially overhear or intercept a conversation in one of several different ways: intentionally eavesdropping by use of a scanner, “pirating” by an employee of a cellular provider, or unintentionally hearing the conversation because of a cross in radio bands.
Eventually, however, the ethics committees ‘lightened up’ over time because they recognised that even older, established forms of communication such as landline telephone calls, letters through the postal service, or courier deliveries are subject to interception.
For example, according to Hazelwood, the Ethics Committee of the Illinois State Bar Association reasoned that Illinois lawyers could communicate via email with clients without encryption or prior consent by analogizing email to a landline telephone call, because both forms of communication were susceptible to interception but that federal law prohibited that interception. So, because a lawyer undoubtedly has a reasonable expectation of privacy in the landline telephone call, the lawyer also has a reasonable expectation of privacy in the email.
The same could be said of the cloud: your obligations as a lawyer do not cease simply because you use a new communication medium but you do have to consider how and when you will use it.
Ethical concerns are, of course, important for the legal profession and the debate must continue. Owners of Sensei Technologies and ABA, Sharon D Nelson and John W Simek, co-hosts of two Legal Talk Network podcast series called “The Digital Edge: Lawyers and Technology” and“Digital Detectives.” and managing officers of Sensei Technologies, provide some fantastic tips for lawyers on how to manage data security and mitigate the various privacy and confidentiality risks associated with technology.
But as with all new technologies, it is equally important to see how technology can improve our lives and the lives of our clients whilst managing any risk that might be associated with the new medium presented to us.
Staying on Top of Tech: Don’t Get Left Behind
The ABA Model Rule 1.6 was recently amended to deal with the use of technology and it requires lawyers 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 [my emphasis], engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
Interestingly, the amendment implies that a lawyer who does not use technology when technology would benefit the client does not provide competent representation.
So the final word on all of this? Take some time to evaluate technology tools that may help you communicate more effectively and carefully consider how you might minimise any risk associated with that particular technology.
Don’t be the road, be the steamroller – or you may just get left behind.