CBA Record January 2019
John Levin’s Ethics columns, which are published in each CBA Record, are now in-
dexed and available online. For more, go to http://johnlevin.info/ legalethics/.
BY JOHN LEVIN
I f a friend told you he was going to prac- tice the piano, you would understand that he was going to play a piece over and over again until he could play it to his satisfaction. If he said he was going to perform on the piano, you would imagine him sitting before an audience playing the piece to perfection. If your doctor said you had to go to the hospital so she could practice an operation on your liver, you probably would not go. You might consider going if she were going to perform the operation. We lawyers “practice” law–we do not “perform” law. A performance implies that there is a known beginning, middle and end. The piano piece ends. The patient is stitched up. The audience knows what is going to happen. If another lawyer tells you that his client will be in the room and he will have to “perform for the client,” you know you can ignore the histrionics. They are just a performance. However, in many instances when we go into a room to solve a problem, negotiate an agreement or resolve a dispute, we do not know what is going to happen or what we are going to say. We are practicing our skills. How is this reflected in our professional ethical requirements? Illinois Rule 1.1–Competence, states: “A lawyer shall provide competent repre- CBARecord
sentation to a client. Competent represen- tation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Com- ment 8 states: “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 educa- tion requirements to which the lawyer is subject.” Simply put, it means that lawyers have to continue learning and practicing their profession. The law itself is continually changing. New statutes and new cases come about almost daily. It is obvious that failure to keep abreast of these changes would violate Rule 1.1 and likely give rise to a malpractice claim. However, what about changes in the “practice” of law–changes in the day-to- day routines on how we do what we do? Following court decisions and legislative reports will not be of much help. We “maintain the requisite knowledge and skill” to provide “competent representa- tion” by doing it every day–by practicing. And here is where we run into problems. How do we know what to practice? Numerous books and articles (includ- ing this column) have been written on the changes to our work environment caused by changes in technology and, especially, artificial intelligence. Smart programs can now do some projects that used to take hours of lawyer time, and we are expected to keep abreast of the “benefits and risks
ETHICS QUESTIONS? The CBA’s Professional Responsibility Commit-
tee can help. Submit hypothetical questions to
Loretta Wells, CBA Government Affairs Direc-
tor, by fax 312/554-2054 or e-mail lwells@
associated with relevant technology.” Fur- ther driving this development, clients are questioning the technological competence of their lawyers and are asking that the economic benefits of technology be passed on to the client. To add further complex- ity, data and internet security has become a frequent media topic. Unfortunately, we do not get quality technical training in law school. According to a brief internet survey, the best way for a lawyer to address the technology problem is through a collaborative effort with the client, tech vendors, and (perhaps) a con- sultant. And this effort has to be repeated as technology changes. In other words, we have to keep practic- ing. SMALL FIRM RESOURCES One-stop shopping for resources on staring your own firm, marketing, business networking, law office technology training, low cost office man- agement consulting, and savings on insurance andbusiness expenses. Find the Portal under the Resources tab at www.chicagobar.org.
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