A new Survey reveals that close to 70% of lawyers are not even adequately competent with technology or are at least perceived not to be.

 

On Wednesday, Relativity Fest 2021 featured a panel discussion of Ari Kaplan’s annual General Counsel Survey. This Survey is the third such Survey done by Kaplan jointly with Relativity and FTI Technology. On the panel with Kaplan were Wendy King, Senior Managing Director of FTI Technology, and Monique Ho, General Counsel of Course Hero.

 

Kaplan surveyed GCs in a wide array of companies in virtually every type of business, employee count, and revenue. Kaplan spent over 40 hours interviewing in-house counsel to complete the Survey.

 

Lots of interesting findings. For example, the three things that concern GCs the most, in order:

 

  1. Cyber security, privacy, and data security.
  2. The impact of Covid and the accompanying uncertainties.
  3. Increased regulation and compliance requirements, particularly in light of the change of Presidential administrations.

 

But what got my attention (and the attention of Joe Patrice of Above The Law in a well writen post on this same subject) is the level of perceived technological incompetence of lawyers.

 

Kaplan asked the GCs a simple question: Do attorneys have adequate technical compliance? Given the ethical duty of lawyers to keep abreast of the risks and benefits of relevant technology and the increased use of technology over the past 18 months, I expected GCs to report a high percentage of lawyers with adequate competence. I also expected the percentage would have improved over the three years since more lawyers are presumably doing more with technology.

 

Kaplan’s most recent Survey revealed that GCs believe 67% of lawyers lack adequate competence. That’s almost 7 out of every ten lawyers.

 

So I was surprised by the numbers. Kaplan’s most recent Survey revealed that GCs believe 67% of lawyers lack adequate competence. That’s almost 7 out of every ten. Not only that, but the percentage of inadequate technologically competent lawyers went up significantly in 2021. Last year,the percentage was 45%. The percentage was 51% in 2019.

 

Kaplan noted during the panel discussion that lawyers may have received a bit of a pass in 2020 since many were using technologies they had never tried before. So expectations for technology use at the start of the pandemic were low. Kaplan believed that as the pandemic continued into 2021, GCs began discovering that lawyers did not have the competence that clients and businesses expected. King believed that increased perception of incompetence was partly caused by the acceleration of all sorts of new technologies. These technologies simply have not been mastered and lawyers have a ways to go to learn how to use them.

 

Kaplan may very well be right about expectations. But if true, it calls into question not only the 2020 percentage but the 2019 percentage as well. If clients’ expectations are higher now than they have seen what technology can do, it suggests that their expectations were really too low in 2019 and 2020. And King is also correct that there has been an explosion of new tech since the start of the pandemic. The fact that lawyers haven’t figured out how to use this tech suggests they aren’t taking the time to evaluate the tech offered or learn how to use it.

 

If true, it means lawyers are not using tech to automate tasks, reduce billable time on tasks and get improved results.

 

But the fact clients think almost 70% of lawyers are not technologically competent is disturbing. And if true, it means lawyers are not using tech to automate tasks, reduce billable time on tasks and get improved results. It means in-house counsel are still not demanding better use of technology by their outside lawyers or even themselves. It means businesspeople have to continue to be amazed and frustrated by their lawyers. It means lawyers simply aren’t meeting client expectations. Never a good thing. (I have to wonder the results if lawyers in law firms were surveyed about their firm’s competence when it comes to such things as billing and collection software).

 

Not to mention the ethical implications. Comment 8 to Model Rule 1.1 on lawyers expected competence provides:

 

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. 

 

The fact that close to 70% of lawyers either chose to ignore the Comment and Rule or are at least perceived to be ignoring it ought in and of itself to raise alarm bells.

 

The Comment has been adopted in some 39 states, including New York, California, and Florida. The fact that close to 70% of lawyers either chose to ignore the Comment and Rule or are at least perceived to be ignoring it ought in and of itself to raise alarm bells.

 

In any event, the technological competence of lawyers—despite all the talk—remains abysmal.