Office of Bar Counsel, 0218 WYBJ, Vol. 41 No. 1. 16

• Author: Mark W. Gifford, Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming
• Position: Vol. 41 1 Pg. 16

Office of Bar Counsel

Vol. 41 No. 1 Pg. 16

Wyoming Bar Journal

February, 2018

Are Handheld Devices Affecting Lawyer Competence?

Mark W. Gifford, Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming

In an era in which the virtual office is well along in the evolution from futuristic concept to present-day business model, handheld devices such as smartphones and tablets provide a virtual desktop that enables a lawyer to practice from all but the most remote locations, any hour of the day, any day of the year. They provide instant access to clients, witnesses and opposing counsel via the internet, a virtual superhighway that runs thousands of directions. Our brains are being rewired to develop multitasking skills never before imaginable - and never before necessary. But at what cost?

In 2015, it was reported that the average office worker receives 121 emails every day.¹ According to a company that monitors and reports on consumer preferences, fully two-thirds of all email is opened on smartphones or tablets.^[2]The numbers for text messaging are even more staggering. Some telling statistics compiled by the online business texting platform, Text Request:³

• Adults age 18-24 send and receive 128 texts every day; age 25-34 - 75 texts/day; age 35-44 - 52 texts/day; age 45-54 - 33 texts/day; over age 55 - 16 texts/day

• 80% of professionals currently use texting for business purposes.

• Over one-third of professionals say they can't go 10 minutes without responding to a text.

• Texts have a 99% open rate; 95% will be read within three minutes of being sent.

• The average response time for a text is 90 seconds.

• Americans text twice as much as they call, on average.

According to a recent blog post, the average text message is seven words in length. The length of the average text rises with the age of the texter.⁴

What does all this have to do with lawyer competence? A good deal, in my opinion.

With increasing frequency, lawyer discipline cases turn on the written record as reflected, in the main, in emails and text messages. For my purposes as disciplinary counsel, electronic communication is especially persuasive evidence, as it largely removes the "he said, she said" component of communications between lawyers and others. In a discipline system where the burden is on bar counsel to prove professional misconduct by clear and convincing evidence, written...