Transitioning Your Tech: Selling Your Practice in the Digital Age

by Alexa Drago on April 20, 2017

By Guest Blogger, Corinne C. Miller

In a profession that has prided itself on maintaining its traditions over the years, the injection of technology has created new opportunities and challenges for the modern law practitioner. Cloud computing has made our firms more productive, saved our clients time and money, and streamlined discovery for firms of all sizes. Firms are recognizing that comprehensive document management software (DMS), discovery software and general digital organization have become the industry standard and that such programs require unique security measures that many would not have contemplated even a decade ago.

The daily use of technology in our practice will also impact the way we transition case information when selling our practice upon retirement. Regardless of whether you are selling your interest, selling your whole firm or retiring, technological advances are impacting how readily and securely we can transition our practices digitally.

Transitioning-Your-TechCloud Computing and Security: The Baseline

We can all agree that paper files are becoming a thing of the past. There is a unique paradigm presented by young associates entering the profession and those who are on their way out regarding the need for DMS, the level of security required to protect these systems and how to effectively manage these systems for eventual transfer of a law practice.

Most firms are recognizing the need to stay current with technological developments and are opting for comprehensive DMS that organizes, maintains and secures client files for easy use, access and transfer, when necessary.(1) Incorporating this critical technology into your practice will make the eventual transfer of your files as seamless as possible. The first step is, of course, maintaining a “paperless” office. Industry giants such as Worldox, Mycase, Legal Works, Firm Central and Practice Panther assist firms in making the transition from paper to digital and can support the transition from desktop to the cloud. With all these benefits, however, come the risks: With our confidential data now sitting in these vulnerable virtual systems instead of on paper files on our desks, hackers have emerged whose mission it is to compromise our practices and client confidentiality.

It is no longer sufficient for law firms to rely on regular consumer software to serve as a firewall, backup and virus protection.(2) The increasing norm, even for small firms, is to outsource or purchase commercial-grade software. Citing concerns of client confidentiality, protection of internally-created legal documents, and privacy of incoming and outgoing communications to clients, third parties, and opposing counsel, firms are emphasizing a secure paperless route.

The acceptance of technology in our profession is further exemplified by the creation of task forces focusing on these emerging technological concerns in our field, as well as states’ ethics committees taking time to opine on the issue. For example, the concerns surrounding data storage and computer system protection have escalated such that the Legal Cloud Computing Association (LCCA) was formed in 2010 to address the unique challenges facing modern law firms. To date, the LCCA has issued the only standards for cloud computing for attorneys, which were shared at the American Bar Association (ABA) Techshow in March 2016.(3) 

Additionally, according to the ABA, approximately half of state ethics committees have expressly debated cloud-based practices.(4) Most states that have addressed the issue have trended toward the ever-elusive “reasonable care” standard, as contemplated by Colo. RPC 1.6 (cmts. 18 and 19) leaving much to be desired by those firms wanting to take a proactive role in preserving their clients’ confidentiality.

The number of organizations and prevalence of ethics committees taking a hard look at law practice technology demonstrate that tech-based practices are becoming the norm. Such technology creates problems and solutions and will be a significant factor when selling (or considering purchasing) a law firm or shareholder interest.

Transitioning Your Practice

Relying almost exclusively on paper files made retirement or practice transition consist of a simple physical transfer of legal documents. While transitioning your practice might have been easier 10 years ago, it was far less secure. Paper is vulnerable in a different way than technology: It can burn in a fire, be stolen or reviewed by third parties present in the office, or vanish with no comprehensive, transferable backup. Paper also remains the only place where true “originals” exist.

However, technology now allows you to share your whole practice with another party by providing a password, sharing a cloud storage device or handing over a hard drive. The application of secure cloud software and DMS increase the likelihood that you will be securely sharing your complete file with your successor while decreasing the likelihood of losing important documents, notes and case histories in the process. Furthermore, even an unorganized electronic file can be searched and recovered — unlike a pile of papers that is more susceptible to permanent loss. Like anything, however, transitioning a cloud-based practice has its potential drawbacks as well. Consider:

  • Incomplete Files: Even in an entirely paperless firm, DMS relies on human participation. There is almost no way to ensure that every relevant document has been scanned in, that everything has been uploaded to the correct file or that your successor will have everything they need to proceed on an open case.
  • Version types: Some DMS automatically alters the “native” (original) version of the files — that is, it may transfer emails from their Outlook version to a PDF. This can be problematic for disclosures and discovery requests that require native versions of files. If the files are not saved in their native form, they may not be recoverable.
  • Lack of Organization: Many practices today are only in the process of transitioning to a paperless office (or at least backing everything up on a computer drive/cloud), meaning that older files might remain in paper format while the newer ones are being uploaded for easy transfer. This can make it difficult to locate certain files or know where to look in the event that an older file needs to be analyzed at a later time.

As we all know, technology is not infallible. In addition to the above concerns when transitioning your technology from one lawyer to another, another consideration is what happens when your practice transitions due to your death or incapacitation. Modern attorney succession plans should address not only who will take over their cases, but also outline how data is stored and how it can be accessed. Consider the following when transitioning your practice or documenting your comprehensive succession plan:

  • Share the Knowledge: Never have just one person be the gatekeeper of all computer server, cloud or DMS information. It is critical that passwords are kept (securely) in more than one place and that intimate knowledge of the programs your office uses are known by more than one person in the event that person leaves the firm or is not available during an emergency. You will need to be able to communicate, or have someone else communicate, the ins and outs of your cloud server and/or DMS during the transition.
  • Know Your Tech: Technology can create frustrating extra steps in our daily practice. However, you are only doing yourself a disservice (and potentially violating Colo. RPC 1.1) if you fail to acknowledge that technological advances in the workplace are here to stay and need to be implemented. This will also make it easier to explain to your successor how to use the technology and how you kept files organized.
  • Do Your Research: Not all cloud-based servers, DMS and anti-virus protection are created equal. You can save your practice time (and money) by researching your options and becoming fluent in the myriad of routes available to keep your practice secure.

It is difficult to grasp where technology will be by the time millennial attorneys eventually sell their practices. The only certain way to ease the transition, whether you are selling your practice in three years or in 30, is to keep abreast with technological advances in our industry and consider how the choices you make to keep your clients’ information organized and secure will assist you down the road.

Conclusion

Regardless of your personal view of technology, cloud computing is here to stay and will inevitably impact the eventual sale or transfer of your practice. By understanding both the benefits and vulnerabilities of emerging legal technology, you can set your practice up for a legacy of success.

 

Corinne C. Miller is an associate litigation attorney at Murr Siler & Accomazzo, P.C. in Denver. She focuses her practice on business and commercial litigation, property law and contract disputes. She can be reached at cmiller@msa.legal. This post originally appeared in The Docket.

 

NOTES

1. Official comment [8] to Colorado Rule of Professional Conduct 1.1 regarding attorney competence contemplates that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, and changes in communications and other relevant technologies […].” The specific language regarding technology was added in April 2016. This is similar to the ABA Model Rule 1.1 that states: “[t]o 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 […].”

2. Two of the official comments to C.R.P.C. 1.6 (cmts. 18 and 19) concerning confidentiality emphasize requirements for “reasonable measures to preserve confidentiality.” These provisions were broadened in the April 2016 amendments.

3. Legal Cloud Computing Association, “Association Sets New Cloud Security Standards for Legal” (March 17, 2016),

legalcloudcomputingassociation.org/association-sets-new-cloud-security-standards-for-legal/.

4. See American Bar Association, Legal Technology Resource Center, “Cloud Ethics Opinions Around the U.S.,” americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/cloud-ethics-chart.html. Additionally, aside from official comments to the Colorado Rules of Professional Conduct, Colorado does not have a controlling ethics opinion regarding the issues raised herein. However, Formal Op. No. 90 (adopted on November 14, 1992), took an early look at how technology may impact lawyer communications in the future. Another opinion touched on the use and the dangers of metadata in practice. See Formal Op. No. 119 (adopted May 17, 2008); see also Jill Fernandez, “11 Tips to Safeguard Clients’ Digital Information,“ Colorado Supreme Court (Winter 2014),

coloradosupremecourt.com/newsletters/january_2014/11%20Tips%20to%20Safeguard%20Clients’%20Digital%20Information.htm.

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