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What do ABA Model Rule Changes and the Flaherty/Suffolk Audit Mean for Attorney Training?

Panel Discussion

#USSPG4

ANDREW PERLMAN Director, Institute on

Law Practice Technology and

Innovation

SUFFOLK UNIVERSITY LAW SCHOOL

MARTHA MAZZONE Senior Vice President and Deputy General

Counsel

FIDELITY INVESTMENTS

BENNETT BORDEN Chair, Information Governance and

eDiscovery Group

DRINKER BIDDLE & REATH LLP

SPEAKERS

ROBERT KARWIC Director, IT Training

ORRICK

HERRINGTON & SUTCLIFFE LLP

CLAIRE MORRIS IT Training Team Lead

MCDERMOTT WILL

& EMERY LLP

SPEAKERS

Recent ABA Model Rule Amendments and the Suffolk/Flaherty Legal Tech Audit Andrew Perlman, Suffolk University Law School

The ABA Commission on Ethics 20/20

Studied how the Model Rules needed to be revised in light of two trends:

Changes in Technology

Globalization

A Sampling of Topics Addressed

• The Duty of Confidentiality • Conflicts checking • Cybersecurity

• Outsourcing • Lawyers • Nonlawyers

• Advertising (Internet)

• Multijurisdictional Practice

• Foreign Lawyer Practice in the U.S.

• Liberalization of Admission by Motion

• Practice Pending Admission

Amendment to Rule on a Lawyer’s Duty of Competence

(Model Rule 1.1)

[6] 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.

A Sampling of New Competencies

• Cybersecurity

• Internet-Based Marketing

• Internet-Based Investigations

• E-Discovery

• “New Law” (e.g., expert systems/automated document assembly)

• Effective Use of Established Legal Tech (e.g., word processing)

Technology and Confidentiality

The newly adopted changes:

• clarify that lawyers should take reasonable precautions to protect client confidences from inadvertent or unauthorized access or disclosure (Model Rule 1.6)

• identify the factors that lawyers should consider when determining whether they have taken reasonable precautions (Model Rule 1.6)

Factors to Determine the Reasonableness of a Lawyer’s Efforts

• Sensitivity of information

• Likelihood of disclosure without safeguards

• Cost of additional safeguards

• Difficulty of implementing safeguards

• Extent to which the safeguards adversely affect the lawyer’s ability to represent clients

Reasonableness ≠ Paranoia

Image courtesy of freedigitalphotos.net & Stuart Miles

Coming Soon. . .

• A website at the ABA that answers commonly asked questions about data security in ways that ordinary lawyers can understand.

• For example:

• What is a strong password?

• Why is encryption important? And how do you do it?

A Sampling of New Competencies

• Cybersecurity

• Internet-Based Marketing

• Internet-Based Investigations

• E-Discovery

• “New Law” (e.g., expert systems/automated document assembly)

• Effective Use of Established Legal Tech (e.g., word processing)

What’s the Goal?

• Incentivizing lawyers to use technology as effectively as possible to bring down the cost of legal services

• Why hasn’t this happened already?

• Training the next generation of lawyers to be more technologically competent.

The Objection

Shouldn’t lawyers just delegate this stuff to staff?

Image courtesy of freedigitalphotos.net & Stuart Miles

The Response

Fewer Staff Available

“It is clear that the role of legal secretary has changed significantly in recent years as technology has allowed lawyers work with less need for administrative support,” said the COO of a major international law firm in a statement. The decision [to layoff 25 secretaries], he said, was necessary “in order to adjust to the new marketplace realities.”

Law Technology News, June 5, 2014

Other Responses

• Leaner firms = smaller staff

• Easier/quicker to do it than delegate it

• Staff might not do it the right way

• Rule 5.3 (duty to supervise non-lawyer assistance)

• Version control; need to keep working

• The need arises after hours

• If staff really do it, audit the staff

National Conference of Bar Examiners 2012 Survey of New Lawyers on the Most

Significant Skills and Abilities (out of 36 skills surveyed)

1. Written communication (3.77 out of 4) 2. Paying attention to details (3.67) 3. Listening (3.60) 4. Oral Communication (3.58) 5. Professionalism (3.58 ) 6. Using office technologies (e.g. email and word processing) (3.56)

7. Critical reading and comprehension (3.55)

8. Synthesizing facts and law (3.55)

9. Legal reasoning (3.54)

New Developments

• The Audit has arrived!

• Two versions

• Legal Technology Audit: Law School Edition

• Legal Technology Audit: Professional Edition

Frequently Asked Questions

• What’s on it?

• How is the audit administered?

• How is it scored?

• Who gets the results and when?

• Who should take it?

• What does it cost?

• Who is involved?

• How can I learn more?

Being the Client Martha Mazzone, Fidelity Investments

There Will Be A Quiz Can you answer these basic technology questions?

Q. What is a typical email disaster recovery back-up schedule?

Q. What is a structured database?

Q. What is the name of the most common business email system?

A. Daily backup of server, save for 30 days, recycle on 31st, save one monthly for 12 mos.

A. Software that organizes data into fixed fields so that it can be retrieved efficiently in response to queries.

A. Microsoft Outlook Exchange.

Time for a New Mental Model

What Is a Lawyer?

• Scottish psychologist Kenneth Craik (1943): our

minds build “small-scale models” of reality to

understand our world, establish reason, and

anticipate what will happen.

• The mental model of a lawyer (that we all share)

has to change.

Key Technology Competencies for 21st Century Counsel

• Technology affinity

• General understanding of:

Network infrastructure

Mobile devices and

platforms

Email systems

Social media

Storage

Disaster recovery

• Capability in:

Microsoft Office suite

Collaboration software

Practice Technologies: Focus on EDiscovery No, it’s NOT easier to print and review evidence in paper.

Paper Review: • Multiple people, multiple

touches

• Changing document formats

• Rules

• No audit trail of decisions

• No searching, clustering, de-duplication

• No automated culling

• No pre-screening for privilege

• Speed demonstrably slower

• No ability to share work (AHA!)

• No ability to transfer knowledge automatically

Electronic Discovery Tool:

The opposite of all that.

Know What You Know, Learn What You Don’t “It’s not that I am so smart. But I stay with the questions much longer.”

- Albert Einstein

Being an Attorney in Practice Bennett Borden, Drinker Biddle & Reath LLP

Attorneys in Practice

“Firms will need to find new and innovative ways to deliver legal services if they are to meet the changing demands from clients. Making the best use of technology will be key to future success as will finding more efficient and effective ways of managing their most important asset – people.” PWC Law Firms Survey 2013

• Incentivizes the wrong product

• Is not fashioned for efficiency

• Management structures make change difficult

• BUT…..this is changing.

Modernizing the Practice of Law

The Traditional Law Firm Model

• Billing models that encourage efficiency

• Increased focus on security

• RFPs with tighter requirements

• Competitive advantage in a tough market

Modernizing the Practice of Law

Client focus on more efficient legal product is driving change.

• In the information age, the lawyer that leverages information better and faster is the better lawyer

• Advanced analytics in eDiscovery has opened the door to better data leveraging generally

• Applying technology to other legal contexts (M&A, Compliance, Corporate Governance)

Leveraging Technology Creating a better legal product

Legal product is driven by information.

• Information is a valuable asset

• More information means more granular views

• Advances in data analytics are spreading through the corporation

• A lawyer who understands how to control and leverage information has a distinct advantage

The Rise of Information Governance A new area of practice

Companies want advisors for the Information Age

• Establishing an IG Decision Making Framework

• Updating Policies and Procedures • Data Remediation • Autoclassification of Information • eDiscovery Optimization with Advanced

Analytics • Early Warning Compliance Systems

Information Governance Opportunities

Clients are buying new kinds of legal services

• Legal Process Improvement • Better Security • Increased Collaboration with Clients • Competitive Advantage • Simply Better Lawyers

Technology as Opportunity

Technology makes better lawyers, law firms,

and legal product

Different Ways of Driving the Same Result Robert Karwic, Orrick, Herrington & Sutcliffe, LLP Claire Morris, McDermott Will & Emery, LLP

• IT Training moved under Professional Development • More partnership with departments like R&I, BD,

Finance • Replaced some IT Trainers with “Practice Resource

Specialists” • Trying to get Technology Skills added to our criteria for

advancement • Moved to one-on-one deskside training/consulting

(Concierge Training/Technology Adoption Services)

A Tale of Two Firms Attorney Training 2.0

Orrick, Herrington & Sutcliffe:

Structural Changes to Training

• Letting lawyers drive the content • Some have come to us with the article or

requested specific technology topics (including mobile)

• Utilizing industry findings (LTC4) and the audit to inform content

• Industry Hot Topics • Security Awareness Training • Email Management • Mobile Devices


Orrick, Herrington & Sutcliffe:

Content Changes to Training

• The Need for an Attorney Training Program (an “ATP”)

• New ABA rules and Suffolk/Flaherty Technology Audit

• Impetus for change • Incentive to learn • Technologically competitive • Key sessions for key solutions

• Trained and Empowered!


McDermott Will & Emery: Empowerment

Phase 1 – Immediate • A program we could launch

same quarter • Softer approach for additional

training program later


McDermott Will & Emery: Two Phase Approach

Phase 2 – Future • Work with LTC4™ to launch a legal certification program • A structured program built around key competency

requirements • To partner more closely with PD to offer some CLE accredited

sessions –integrity & compliance training, social media classes

• A six month series of 30 minute live webinars • All US Attorneys • Key topics related to established legal technology tasks • Each session recorded • Laptops as prizes promote feedback • Follow up tips and handouts to compliment the webinar

sessions • SMEs deliver their specialty topics


McDermott Will & Emery:

Technology Proficiency for Lawyers Program

• E-mail Management • E-mail skills • Document Security • Metadata & Risk • Time Entry Timesavers • Searching • Word Processing • Road Warrior and Mobile Devices


McDermott Will & Emery: Program Topics

What Key Skills Do Lawyers Need?


McDermott Will & Emery: Plan and Promote


McDermott Will & Emery: Focus on Efficiency

“I have attended several of the ½ hour webinar training sessions and find them very helpful and efficient. I think the training team should get a lot of credit for appreciating what attorneys need to know and providing it to us in a time frame that makes learning effective”(Counsel)

“I just wanted to drop you a quick note to tell you how incredibly helpful the recent training sessions addressing PDF documents have been!! I have attended 2

sessions so far, and I hope to be able to attend all of them. They are quick and to the point, and it is unbelievably convenient to attend them at my own desk. I can’t

say enough good things about these sessions. They are wonderful! ” (Partner) “Important practices like scrubbing the metadata before filing with a court or making them available to opposing counsel need to be followed. Therefore, I am asking all of you to attend …..“Metadata: What’s Hiding In Your Document?” This is mandatory training….”(Head of Trial PG)


McDermott Will & Emery: Feedback and Results


McDermott Will & Emery: Feedback and Results

• 350 lawyers attended March through June 2014 • Most popular sessions:

• Metadata: What’s Hiding in Your Document? • Essential PDF Tools • OneNote: Managing Information Electronically • DTE Timekeeper Efficiency Tools • Excel Fit to Print

Over 22 different topics offered to date!


McDermott Will & Emery: Results and More

• High attendance by Partners • Encourage associates to training

• Europe/Asia • Exclusion encourages inclusion

• Expansion of Topics • Security Awareness Program

• Attorneys choose the content • Promotes continuous learning culture

• Availability of the Audit • Driving Culture Change within Firms • Process Improvement • Practice Project Management • Next Generation Technologies

(Big Data/Data Analytics) • Next Wave of Rule Changes

Imagine…What’s Next?

We’ll now open it up for questions

Questions

Thank You

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