The national lockdown accelerated the use of technology by legal practitioners in South Africa (SA). Legal practitioners were forced to work from home and to type and create their own documents. Overnight it became crucial to have the right technology at hand, to be competent in the use thereof and to be aware of the risks involved.
This article aims to highlight the ethical duty of every legal practitioner to obtain basic skills in the use of technology. Any use or avoidance of technology that negatively affects a client could be an ethical violation. Lack of these essential skills can also lead to inefficient and poor work, lower fees, less profits, wasted time and the risk of becoming obsolete.
Many legal practitioners feel overwhelmed when confronted with new technology concepts, such as encrypted information, cloud computing, artificial intelligence, e-discovery, data storage and hacking. Being experts in law, a high level of expertise in these concepts cannot be expected from legal practitioners. What is firstly required, is the basic ability to effectively use the technology actually at hand. These are often the more mundane tools, such as e-mail, Internet research, case management, bookkeeping, excel and word-processing software.
Microsoft Word is overwhelmingly the most-used tool in the legal trade. Document preparation, drafting, and editing consume (or waste) a considerable amount of legal practitioner’s time. Microsoft Word documents can win or lose cases, save or cost legal practitioners’ and clients’ money and preserve or destroy relationships between legal practitioners and their clients and colleagues.
In 2012, the American Bar Association revised its Model Rules of Professional Conduct by expressly including a greater duty for technological competency as part of a lawyer’s overall duty of competence. A nationwide codification of required ethical and legal obligations for technology competency has since followed.
Many states in the US require technology training as part of its Mandatory Continuing Legal Education. This includes basic technologies, such as spreadsheets, word processing, conversion of files to PDFs, as well as more advanced technologies like scrubbing metadata, cloud-storage, e-discovery, and peer-to-peer collaboration.
The word ‘technology’ or the required competent use thereof, does not appear in the Legal Practice Act 28 of 2014 or the Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities. The aim of the legislation is, however, ‘to regulate the professional conduct of legal practitioners so as to ensure accountable conduct’. It also requires that legal practitioners shall ‘use their best efforts to carry out work in a competent and timely manner’.
In today’s digital era, ‘accountable conduct’, ‘best efforts’ and ‘a competent and timely manner’ should also include the competent use of technology.
A legal practitioner must be competent in all matters reasonably necessary for the proper representation of a client. How technology is used affects how well clients are served.
It is embarrassing to be reprimanded by courts and clients for sloppy pleadings, documents with confusing text and numbering, typos and formatting issues. Incompetence and user errors can also cause real-world problems for legal practitioners and their clients.
Incorrect cross-references in a legal document can cause major losses. Should a sale agreement stipulate that the purchaser must pay the deposit contained in clause 1.16, and there is no such clause, the legal practitioner’s client (the seller) will not be protected in event of breach by the purchaser.
Missing a deadline, because the legal practitioner is struggling to format the legal document to a presentable state, comes down to failing the client, even though the legal contents of the document may be perfect.
Knowingly wasting a client’s time and money due to lack of computer skills is unacceptable. A fee may be unreasonable because –
Drafting a document may take long because it is complex or because the legal practitioner is ignorant of the automation functions in Microsoft Word, such as styles, quick parts, templates and other time-saving tools. To charge a client for the time struggling and retyping will be unethical.
The lack of competence and knowledge may result in confidential information being exposed. Legal practitioners must be aware of the risk associated with information invisible in their documents, such as hidden text and comments, watermarks, document properties or metadata. Information relating to the document and representation of a client is exposed every time a document is shared or re-used.
The Protection of Personal Information Act 4 of 2013 aims to safeguard the right to privacy. It places obligations also on legal practitioners to comply with the conditions for lawful processing of personal information and the duty of data protection. Failure to comply can lead to punitive action. The restrict editing function in Microsoft Word is one such measure to prevent disclosure of confidential information.
Many legal practitioners re-use old documents from similar matters without cleaning all the client information. By not using templates or the find-and-replace function in Microsoft Word, a legal practitioner may divulge that in a previous matter the seller had to pay commission to Mr J Corruption on acceptance of a tender.
Legal practitioners must create procedures and provide training to ensure compliance with all ethical duties by everybody in the firm. This includes technology training programmes.
Legal practitioners who ignore incompetence of staff members, risk violation of their ethical duty towards clients and staff members. They must have enough knowledge and ability to give direction when they see that a staff member is wasting time by retyping standard clauses or manually numbering pages and multi-level clauses.
Even today still, e-mails are sent by staff members with the firm’s letterhead attached in Microsoft Word format including the legal practitioner’s signature, without any editing protection. It is the legal practitioner, who must be held liable for failing to make the staff member aware of the risk of fraudulent use of the firm’s letterhead and electronic signature in such unprotected format.
It is a legal practitioner’s ethical duty to provide legal services to those who do not have the luxury, time or means to access legal services delivered in the old-fashioned way. The technology is here today to automate legal services and make it virtually accessible for everybody from anywhere.
While each case had unique aspects, the drafting of many legal documents, such as divorces, change of marital regimes, rehabilitations, curatorship, loan-, lease- and sale agreements, wills, antenuptial contracts and so on, is quite repetitive.
Legal practitioners are not typically at the forefront of innovative and automated legal services. This becomes clear when the many third-party legal software programs available today and websites offering legal documents (often of poor quality) are considered.
High quality legal documents drafted by experienced practising legal practitioners, made easily accessible and obtainable, will not only serve a bigger portion of the population, but will also enhance the quality of legal documents offered on the Internet nowadays and improve clients’ experiences by making legal services more convenient.
Automating legal services need not be a costly or complicated exercise. By only using the functions in Microsoft Word, legal practitioners can set up basic templates, forms, and spreadsheets that enable the legal practitioner, staff member, or client to simply click on answers to automate the drafting with client specific information.
Legal practitioners can no longer be proudly unaware of technology or profess technological incompetence and still claim to ethically serve the need of their clients’, staff and the greater population. Basic competency with the technology used every day and an awareness of the risks of incompetent use by anybody in a legal firm, are every legal practitioner’s ethical duty.
Monica Korf BCom LLB (UP) is a legal practitioner, notary, conveyancer, non-practicing United Kingdom solicitor at Korf Attorneys in Cape Town.
This article was first published in De Rebus in 2021 (May) DR 8.
