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When it comes to e-discovery, lawyers need to stay up-to-date.

I saw an article recently about competency and the need for lawyers to become proficient on electronic discovery or else face disciplinary rule violations. I am an older lawyer. What should I do?

Under the Rules of Professional Conduct there are requirements, particularly in comments to Rule 1.1, the competence rule, for lawyers to maintain competency in the law and new technology. Electronic discovery (e-discovery) is normally an issue in major civil cases and commercial litigation. Obviously, there is a different world that must be mastered or an associate who is familiar with this technology must be hired.

What is somewhat interesting about the article is the emphasis on competency in technology or else one shouldn't practice law. But, how about competency in practicing law, such as trials? How many lawyers in major litigation departments have had 10 or 15 trials total in their career? That is not exactly a recipe for competency as a trial lawyer. Any experienced trial lawyer knows it takes usually 20 to 50 trials before one really gets their sea legs.

The point is that the emphasis on electronic technology ignores the fact that there are many other aspects of the practice of law where competency is dropping. Just ask many judges about the decline in trial skills in the courtroom. There are serious declines in the level of advocacy because lawyers do not have the opportunity to try cases as in years past.

This modern technology, which is reshaping the practice of law, is very worrisome. The bar associations at all levels appear to just go with the tide, without really thinking about what is really happening to the legal profession. The judiciary looks at it from a dollar and cents approach, but not how it affects the art of lawyering.

The problem is that modern technology is changing the nature of practicing law. Articles recently about artificial intelligence(AI) taking over many aspects of lawyering are frightening. What is frightening is that one is removing the human element. What happened to a client and the lawyer and the bond between the client and the lawyer?

Perhaps modern technology can save some money, but it loses that personal element and aspect, which is the essence of lawyering. Lawyers are not robots. The practice of law is a very human business. There is a great deal of creativity in the practice of law, particularly with experienced lawyers. This is all lost in the world of artificial intelligence responding to questions and really doing the legal research, etc.

This writer, for one, doesn't see the practice of law that way. As someone recently said, “software is eating the world.” The person emphasized how many times he had talked to a computer as opposed to a person. In a book by Edward Luce, “The Retreat of Western Liberalism,” published by the Atlantic Monthly Press, on page 61, Luce suggests that in a few years artificial intelligence would be writing legal briefs and responding to legal questions.

But, does one really want the legal profession to turn into that? The legal profession is one of great skill and knowledge, tradition, courtesy and professionalism. Is that all to be replaced by computers? In courthouses today, it is hard to talk to people because everyone is playing with their cellphone or responding or reading things. Lost are the days when people would just talk and share experiences.

Modern technology is no mecca. The modern practice of law with massive use of email and text messaging, etc., it is a disaster waiting to happen because most people can't encrypt the devices enough to protect confidentiality. Therefore, lawyers are constantly risking violations of confidentiality under Rule 1.6. Further, the world of electronics becomes useless if there was an attack on the electronic grid.

What is happening over the next 10 to 15 years will result in a very different legal profession than it has always been traditionally. Maybe that is for the better, but at least this writer doesn't think so. The problem is there has been no real thought process about this change. As technology comes in, it is just adopted and added to the practice of law without thinking of the consequences and how it is changing the legal profession. It is certainly going to undercut jobs for younger lawyers and paralegals the way it is heading. One of the great strengths in being a lawyer, particularly a trial lawyer, is the human and personal side. The great trials lawyers in the past were often also involved in politics and had the people skills. The legal profession was a very human profession and the great lawyers often had great empathy for their clients and their causes. This is all disappearing with technology. A lawyer used to get their business through being involved in the community, politics and civic organizations. Now much of that has been replaced by electronic advertisements and directed mail.

What is happening now is very worrisome and it is even more worrisome that the bar associations are letting it happen without more thought, discussion or review.

Without understanding as opposed to just reacting, the legal profession will end up as, in essence, a technological business where the human side is secondary. This will be a very sad day. Certainly this writer, if he ever comes back in reincarnation, would not want to be a lawyer in that kind of world. One the fascinating questions is, why aren't these artificial intelligence and computer voicemails practicing law without a license? Many of these issues are apparently irrelevant as technology marches forward. It will be a far less interesting world as a lawyer and the legal profession as we know it will no longer exist.

A lawyer should turn over a client's file if the client would be prejudiced.

I have been terminated by my client and now the client wants the file, but the legal bill is unpaid. Can I withhold the file?

The starting point on answering this question is whether the practice of law is a business or is it a profession? Obviously, the practice of law has business aspects to it, but it is a profession first, and a business second. A business has the sole purpose of making a profit. The legal profession has the main purpose of helping and serving people with a secondary goal of being able to run a business that makes enough profit to keep the lawyer in business.

Understanding that difference makes the answer very clear. If a lawyer has been discharged, which the client has a right to do under Rule 1.16 of the Rules of Professional Conduct, then the lawyer should do nothing to prejudice the client. Rule 1.16(d) notes that upon termination of representation, a lawyer shall take steps to the extent reasonably practical to protect the client's interest. Also, if the lawyer is entered of record and then discharged, the lawyer has to seek court approval for the lawyer to withdraw. That is important because some lawyers have been discharged and then just let the case sit. If there are deadlines or hearings and the new lawyer hasn't entered, then the former lawyer is still counsel of record and better do something or else there could be professional discipline.

The attorney or retaining liens have always allowed a lawyer to retain the legal file if the fee was unpaid. But, the modern view, and there are ethics opinions that support this, requires a lawyer to turn over the file if the client would be prejudiced. That would normally be the case if the file or representation had been going on for some period of time. It would be difficult for someone new to take over without the file, notes, etc. The lawyer cannot assert these liens to the prejudice of the client. If there is a possibility of a prejudice, then the lawyer should turn over the file. If the lawyer doesn't and the client is prejudiced, then there is a real possibility the lawyer could potentially face professional discipline.

A lawyer should also remember in terms of the file, a copy should be maintained to protect the lawyer. The basic rule of thumb is that if the lawyer has been paid in full, then the client is entitled to the file and the lawyer has to pay the cost of copying. If the lawyer has not been paid, then the client has to pay for the cost of copying before the file can be copied and given.

It is always difficult to be discharged because under Rule 1.16 of the Rules of Professional Conduct, a client can discharge a lawyer for any reason. Sometimes the reasons are foolish and stupid. But the client has the right to discharge the lawyer for almost any reason.

If lawyers have a fee dispute with a client, they should submit it to the fee dispute committee of the bar association. If the client agrees to their jurisdiction and the lawyer does, then there will be binding common law arbitration, which is essentially nonappealable except for fraud. The Office of Disciplinary Counsel often will not prosecute on these fee dispute complaints if the lawyer is willing to submit to jurisdiction of a fee dispute committee.

Therefore, to answer the question, because of the nature of the legal profession, files should be turned over to the client even if the legal fees haven't been paid. A lawyer can assert the attorney lien for a short period of time, but if there is any prejudice on the horizon, the lawyer should turn the file over. The better practice is to turn the file over immediately. When turning over the file, the best practice is to give it to the new lawyer, not the former client.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.