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If you're a legal tech nerd like me, you've probably heard about the the tech fail by Paul Manafort's lawyers in the investigation by special counsel Robert Mueller. The takeaway for legal tech? There's a big difference between knowing one's duty and knowing how to carry it out. As it relates to the duty of technological competence, we have the ability to evaluate not just whether someone knows their duty but how to carry it out. Why aren't we using it?

But first, a few key asides: There's really interesting intrigue around the failed Manafort redactions. First, it appears that Manafort's legal team has properly redacted documents in the past (see the answer from Matthew Bohrer). Note further that Manafort's team was redacting the document not to protect Manafort but, effectively, as a courtesy to Mueller so that the Mueller investigation could continue to keep its investigations confidential. You can go down the rabbit hole on why the redactions in the first place or why Manafort's counsel might have intentionally done a bad job at redacting. The takeaway: before my legal tech friends and I pile on Manafort's lawyers calling them “crazy” because they don't understand how to redact, it may just be that they are crazy like foxes. Crazy tech-savvy foxes.

If all of that or, even, some combination of it is true I have no doubt that some lawyer somewhere has either failed to redact documents generally and/or failed in the specific way that Manafort's lawyers did. And this failure, particularly if it's one of trying to redact but failing, is one that lawyers can and should address.

Knowing Why to Redact

Let's back up. Lawyers redact because they want to keep information hidden. The need to keep information hidden may come from an attorney's duty to keep certain information confidential, from some procedural rule, like confidentiality of investigative information above), some strategic reason, or something else.

The question of why to redact is pretty easy to understand. There is some rule, some procedural obligation or precedent, or some strategic objective that makes keeping information hidden important. Basically, one party knows something and for whatever reason that party understands why some other party should not know it.

And from a learning perspective, the why of redacting can be communicated to law students or lawyers pretty easily. It's also not hard to test the why of redaction: ask someone if they know about a rule or, even, ask them to explain the rule and why the rule exists. From everything we can tell, the Manafort lawyers understood the why of redaction.

Knowing What to Redact

It's one thing to know that one has to redact, effectively the why, it's another to apply that knowledge: the what of redaction. The knowledge of the imperative to redact or an understanding of why redacting is important must be applied in order for someone to successfully redact a document.

Here, context is key. What specific information in this document must or should be removed or redacted in order to comply with a given rule, preserve a given principle, or advance a strategic objective?

This too can be taught and learned, though there is likely to be lawyerly debate, as there always is when lawyers are involved, regarding what actually should or needs to be redacted and what can be kept. It's pretty clear that Manafort's lawyers knew what they were supposed to redact.

But it all falls apart if there's a failure of the how of redaction.

Knowing How to Redact

The final step in this redaction process is the redaction itself. Having understood the imperative or desire to redact and having identified the material to be redacted, well, it's not redaction if you don't actually do the damn thing.

Or, in the Manafort case, it's not redaction if you do the damn thing incorrectly such that the document wasn't redacted.

And if there's a failure of the how, the why and what matter not at all. Because the effect is that there is no redaction at all. Why bother teaching “why redact” or “what to redact” if the has no effect?

And this is the real shame because in our modern world we can teach and test the competence of the how.

Tech Can Help!

In the olden days, this was less of a problem because the why, what, and how of redaction were closely linked. Once you knew that you needed to redact and what to redact, you used a black marker or, for the really committed, scissors to redact. Because we all use complex software today, the gap between the why and what and the how is larger. The mistake that Manafort's lawyers made in Acrobat by placing boxes over the text instead of properly obscuring the document doesn't really have an analog analogue.

It's precisely this gap that's got innovation advocates excited about the relatively new duty of technological competence. It's been adopted in 35 states and counting. And, yet, critics of the new duty object because a failure to comply comes without consequences and the obligation is so broadly defined that “competence” can't be measured.

Or can it? Just as we can test typing speed and accuracy and even begin to guess at what an author might write next we can easily test lawyers' competence to effectively perform key actions using technology. We can know not only if they understand the why and what in testing if they know, specifically, how to do something. And if we really want this duty of technological competence to mean anything, if we really want to hasten the technological revolution in the legal services sector, we can't rely purely on the why and the what. We must test for the how.

It's true that Manafort's lawyers may not be in breach of a specific ethical duty to Manafort either in disclosing information they should not have or in failing to meet some broadly defined obligation of technological competence – for what it's worth, Washington DC has not adopted the duty of technological competence for its lawyers. But it's also almost certainly true that Manafort's lawyers are not the only ones guilty of a failure of the how with technology when it did really matter. And as we saw with Manafort, a failure of the how almost always means a failure of the what and the why. Knowing about one's duty is no longer enough. We must also test the competence to use the tools. If we don't, we're knowingly failing ourselves, our clients, and our legal system.

 

Dan Lear is a lawyer and legal industry gadfly and the Chief Instigator of Right Brain Law. As a practicing attorney he advised technology companies from startups to the Fortune 100. Since his transition from tech lawyer to legal technologist, Dan's been featured or published widely in the legal industry press and spoken to at SXSW Interactive, Ignite Seattle, Georgetown University, Stanford University, ReInvent Law, and the National Conference of Bar Presidents. Most recently, Dan was the Director of Industry Relations for Avvo. Follow him @rightbrainlaw.