Peter McCann

What Is Technology

There is debate whether the lawyer’s ethical obligation to maintain technological competence derives from, or is merely clarified by, Comment 8 of the Model Rules of Professional Conduct (“MRPC”), Rule 1.1. The fact is for most attorneys, however, where the obligation initially arose does not matter.

Benchmarking Technology Competence

There are a number of process and certifications that have been established, over decades, for managing technologically complex business processes. As lawyers, and legal professionals, we do not have to invent the wheel in this space.

Introduction to Ethics and Technology

That there should be a distinct set of ethical rules pertaining to lawyers’ use of technology seems odd at first glance. Ethics rules are written broadly by design and would seem to be able to apply across all practices; there are not, after all, distinct rules pertaining to the representing banks or trying malpractice cases. Yet, here, as elsewhere, the extraordinary changes that technological developments have made in the creation, processing collection and preservation of electronically stored information have required that broad rules be refined and then applied to problems that no generation of lawyers have ever faced.

Managing Variable Needs

One of the sustaining challenges in almost any business is managing the variability of the business cycle. For lawyers this may mean managing both the variability of our clients’ business cycles, as well as the spiky demands created by complex litigation, regulatory investigations, significant mergers and acquisitions, etc. Increasingly, technology, and technology based services, can help attorneys handle the ebbs and flows of their practices.

The “Ethics” or Lack of Them During Negotiations

One of the most significant of the many achievements of the Sedona Conference was the issuance of its Proclamation on Cooperation. It is startling to realize that there was opposition to the Proclamation’s central tenet—that lawyers do not violate any ethic proscription when they are transparent and cooperative with opposing counsel—on the grounds that it was inconsistent with the lawyers’ obligation, discussed above, to provide competent representation. The opposition came from those who engraft onto that rule words that do not appear in it—the lawyer must be a zealous advocate and consider the supposed obligation to be zealous to require the lawyer to give not one jot or tittle in discovery that the rules require. This kind of lawyer would never even consider discussing with opposing counsel which custodians are most likely to have the most relevant information, what the format or production by both sides should be, and how their clients’ information systems actually operate.

Technology Assisted Review

Lawyers and legal support professionals routinely deploy technology, in one form or another, to conduct document reviews. So, what exactly is meant by the terms Technology Assisted Review (TAR, or predictive coding)?

Using Technology for Improved Billing and Business

It may seem that the billable hour has been the coin of the realm for legal services since time immemorial, but that is hardly the case. In the United States, the billable hour model only became prevalent in the late 1970s, after the Supreme Court ruled that minimum fee schedules set by State and local bar associations violated antitrust laws.

Receipt of Privileged Information

Imagine a lawyer who receives an email from opposing counsel with an attachment, which the sending lawyer indicates, is about a certain topic. The other lawyer opens the attachment and is not about that topic at all. It is about some other topic and on the top of the attachment are the words “Attorney Client Communication.” What must the second lawyer do?

Technology: Then and Now

How did we understand technology twenty years ago? How do we understand technology now? Where will we be in another twenty years? Will there be a video clip of us at which future generations laugh due to our current lack of comprehension? Will we still call it a “video clip?”

Introduction to eDiscovery

At the end of discovery, when all the data is neatly culled, processed and searched, the lawyer must feel like a dog that chases cars. What would the dog do if he caught one? Like the dog, the lawyer has to wonder what will I do with all this stuff? The answer is, of course, get it into evidence in support of a proposition of fact that the lawyer is obliged to prove. To do that, the lawyer has to understand the rules of evidence that will permit or prohibit the consideration of the evidence she will offer.