Texas Bar Opinion 642 and Today’s Legal Profession

In May 2014, the Texas Bar Association’s Professional Ethics Committee released Opinion 642 barring law firms from using the title “officer” or “principal” in non-lawyer job titles such as Chief Information Officer. Shockingly, the opinion unleashed a howl of protest from lawyers—even some who should know better. My comments are not  specifically about the Texas Bar’s opinion but about the broader implications of such opinions on a changed profession.

Texas Bar Opinion 642 Merely Re-states the Obvious (Under Current Legal Rules)

Opinion 642 merely states that because the organizational terms “officer” or “principal” imply an ownership interest in a business and because legal ethics rules prohibit non-lawyer ownership of law firms, using such titles misleads. See Opinion 642 at 1-2. This seems logical and obvious considering the current legal rules prohibiting non-lawyer ownership of law firms.

Yet, the surprising protests seem to be arising, at least in part, from the misguided perception of somehow “demoting” law firm CIOs or of viewing non-lawyers as somehow “unprofessional”—the latter confusing the term-of-art “professional” with the common adjective professional or common noun professional. But the former requires more discussion—using non-lawyer CIOs.

I have seen no one questioning in the legal community in general whether the profession needs or should still be using non-lawyer CIOs. The Texas Bar Opinion indirectly sheds light on this general challenge for the profession.

Lawyers Can No Longer Delegate Technology to Non-lawyers

The 2012 revisions to the Model Rules of Professional Conduct (as states such as Pennsylvania adopted—see the ABA Policy Implementation Committee’s list of adopting jurisdictions) fundamentally recognized the changes evident in the legal profession. The 2012 revisions expressly make technology awareness a lawyer competence issue (Rule 1.1).

To maintain the requisite knowledge and skill [lawyer competence], a lawyer should keep abreast of changes in the law and its practice including the benefits and risks associated with relevant technology….

Note that the lawyer must be personally competent with technology or associate with an attorney who is (note the emphasis on with an attorney). For example, Comment 1 to Rule 1.1 in the Pennsylvania version of the revised Rules reads:

whether it is feasible to … associate or consult with, a lawyer of established competence in the field in question. (emphasis added)

Furthermore, the same Rule revisions also updated Rules 5.1 (supervising attorney duties) and 5.3 regarding supervision of non-lawyer personnel. The natural implication of these revisions fundamentally transforms law practice duties. Law firms can no longer just outsource that “technology stuff” to non-lawyers because “that technology stuff” is fundamentally law practice (via Rule 1.1), and Rule 5.3 enhances duties for supervising non-lawyers. See Pennsylvania’s New, Technology-related, Ethics Rule Changes for Lawyers for more details.

Law Firm CIOs Need to be Lawyers with Deep Technology Experience and Training

Thus, law firm CIOs should be lawyers with deep technology skills to properly both 1) advise lawyers on lawyer duties of legal competence and 2) importantly to properly supervise the IT staff (via Rule 5.3). But, we still seem to have lawyers with out-dated perceptions on technology that apparently claim that technology can merely be outsourced—wrongly assuming, after all, that technology “isn’t” law practice. If the lawyer simply delegates the “technology issues” to a non-lawyer because the delegating lawyer doesn’t have the skills, how is the lawyer fulfilling Rule 5.3 supervisory duties or Rule 1.1 competence?

I often get the feeling that many lawyers still think of technology as they do experts. That somehow, one can simply delegate to an expert. But, experts play a very different role in the legal community and in the legal process than the ongoing, daily operations of a law firm and the revised requirements of lawyer competence. Experts do not be run cases; lawyers do. In the same way, lawyers must be familiar with the technologies, not simply delegate those core legal functions to others unless the delegating lawyer has the personal knowledge and skills to properly supervise the delegation per Rule 5.3. That also means that senior partners cannot just delegate technology issues to office staff, paralegals, or junior associates.

Legal Services Companies

To further illustrate the problem, consider the “legal services” companies which have sprung-up to offer technology-related “legal services” to law firms and often by non-lawyers—work with a technology-related character such as eDiscovery, cybersecurity audits, and compliance. To date, only the Washington DC Bar Association has taken on this issue  and correctly holding that these “technology” services companies provide legal services and thus must be run by lawyers. Other jurisdictions will follow.

But, these types of services raise precisely the same issues as the Texas Bar Opinion 642 title issues—lawyers improperly deeming something as “technology” and thus not law practice. The problems compound because not only do we have potentially improper delegation of legal services (violating Rules 1.1 and 5.3) to the outsource company, but the outsourcing lawyers also might be supporting unauthorized practice of law and sharing of legal fees because the lawyers do not understand the technologies “outsourced”  well enough to even understand that these services might be law practice itself. (There is a fundamental difference between outsourcing a high-volume OCR job of ten years ago and outsourcing a predictive coding project.)

Conclusion: Times Changed

Times changed (past tense intended). Yet, as the protests related to Texas Opinion 642 indirectly reveal, many in the profession remain stuck in out-dated thinking and avoidance of the reality of today’s legal profession. The officer-title-issue in Bar Opinion 642 unveils a much wider crisis in the profession. The profession also suffers a serious crisis in training lawyers to be today’s lawyers—training which must include solid technology skills and technology understanding (not just the same old, out-dated, law practice management schtick which simply doesn’t cut-it any more). Hopefully, the Texas Bar Opinion will raise awareness of the troubling assumptions made by some of the protestors and will illustrate the broader implications that opinions like this one reveal about a changed profession.