When the country first began to shelter in place due to the pandemic, I wrote a post urging lawyers to use the unexpected change to explore technology and its many benefits, both during and after the pandemic. And lo and behold, lawyers have done just that!
Over the past few months, I’ve witnessed an unprecedented change in mindset by lawyers when it comes to technology. For starters, lawyers in my community have begun to accept certain types of technologies — such as videoconferencing, e-signature, virtual notaries, and cloud computing remote working tools — with open arms. Courts have likewise rapidly adapted and encouraged the use of videoconferencing and increased e-filing.
Similarly, there have been indications that regulatory bodies are becoming increasingly open to allowing lawyers to use technology in all aspects of their practices. Certainly the tide was turning prior to the pandemic, but ethics opinions and rule changes seem to have been expedited in order to address the ethical issues that lawyers are now regularly encountering due to the influences of COVID-19 on their regular business practices.
For example, in April the Pennsylvania Bar Association issued a much-needed opinion addressing the ethics of practicing law virtually. In Formal Opinion 2020-300, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility provided guidance on how lawyers and their staffs can ethically provide legal services while working remotely.
The Committee confirmed that it was ethical for lawyers to use cloud computing software in their practices. And, notably, the Committee was also the first to adopt the analysis set forth in ABA Formal Opinion 477R, concluding that because of improved technology, unencrypted email is insufficient for discussing particularly sensitive information, and in those cases more secure communication methods such as encrypted email or secure online client portals will be required, a consideration of particular import during the pandemic, when face-to-face meetings are a rarity.
More recently, the New York State Bar Association green lighted a recommendation that would require New York lawyers to take one cybersecurity CLE credit every two years. Personally, I think a broader “technology” category would have been more appropriate, but it’s a step in the right direction and one more indication that the legal profession is increasingly accepting of the importance of technology to the practice of law.
Just a few weeks ago, the DC Bar Association Issued Ethics Opinion 378, wherein the Ethics Committee concluded that it was “not unethical for a lawyer to accept cryptocurrency in lieu of more traditional forms of payment, so long as the fee is reasonable.” While this was not the first ethics committee to reach this conclusion, to the best of my knowledge, only two other bar associations — in Nebraska and in New York City — have done likewise. Once again, it’s further evidence that change is afoot.
And last but not least, it was announced on Tuesday that DocuSign had acquired LiveOak, a company that provides tools to facilitate online notarization. In the article, the acquisition was aptly described as “the perfect pandemic acquisition, making a manual process digital and saving people from having to make face-to-face transactions at a time when it can be dangerous.”
It is that same impetus — to be able to transact business while avoiding in-person interaction as much as possible — that is the driving force behind the legal profession’s rapid shift in mindset when it comes to technology. And with that previously unexpected change in mindset will come an accelerated rate of technology adoption.
It’s not going to happen overnight, but it’s happening as we speak. And the more types of technology that lawyers use to facilitate remote work, the more open they’ll be to the idea of incorporating all types of technology into their practices.
Today, lawyers are already regularly using technologies that would have been unthinkable just six months ago. So we’re already much further along than anyone could have reasonably predicted. But all signs point to an even larger trend of increased technological adoption. So much so that I feel like I can safely (and hopefully) predict that by beginning of next year, the legal profession will be practicing law like it’s the 2030s. It’s hard to imagine, but as someone who’s official job title is “Legal Technology Evangelist,” trust me — it’s been a long time coming!
Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.