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FALL 2014 EDITION

Forefront
 

Lawyers and Legal Technology

Joe Patrice of Above The Law wrote, “As savvy hackers look to steal financial and intellectual assets from computer systems, the smartest cyber criminals have figured out the best way to get what they want is to avoid the target corporation entirely and aim straight for their law firm.” Mr. Patrice goes on to say, “Let’s face it, lawyers aren’t the most technologically savvy bunch. It’s not uncommon for firm leadership to harbor one or two partners who still have their emails printed out for them and then dictate their responses to a secretary.”

Where does this perception of lack of technological savvy come from? Could it be that lawyers as compared to other professionals are just as tech savvy?  Could it be that lawyers’ reluctance to keep up with the speed of technological advances is not a question of being savvy, but comes from the fundamental way lawyers think?

As John Houseman’s law professor character in The Paper Chase warned his law students:   “You come in here with a skull full of mush; you leave thinking like a lawyer.”

The way lawyers think and what influences this thinking contributes to lawyers’ reluctance to keep up with the speed of technological advancement.

For many law firms contemplating purchasing legal IT, the confusion begins with figuring out what they are being sold. 

Similar to law, the world of technology has its own language or jargon. As a judge from the 1970’s noted: “Lawyers and courts need no longer feel ashamed or even sensitive about the charge, often made, that they confuse the issue by resort to legal "jargon" … By comparison, the misnomers and industrial shorthand of the computer world make the most esoteric legal writing seem as clear and lucid as the Ten Commandments or the Gettysburg Address.”  Honeywell, Inc. v. Lithonia Lighting, Inc., 317 F. Supp. 406, 408 (N.D. Ga. 1970).

Commonsense would dictate there would be a straightforward legal definition of software.  However, a bit of legal research shows courts around the United States have failed to define the term "software" in any consistent manner. In West Virginia, the Supreme Court of Appeals defined software as "The software segment of the industry includes everything other than hardware manufacture.” On the other hand, another court defined software simply as "The logic and directions loaded into the machines that cause it to do certain things on command."  Finally, a court in Colorado defined software as "Custom programs, design and implementation of computer systems, design of storage and data retrieval systems, conversion analysis, consulting, feasibility studies, bid evaluations, technical assistance, computer test time, and education and training." 

So right off the bat, when a software vendor comes knocking on the law firm door, lawyers may not fully understand exactly what is being offered. Rather than admitting they don’t understand, someone from the learned profession of lawyering might react with a, “We don’t need any.”

Legal Technology Software

Legal technology software is designed to handle calendaring, document assembly, email, appointments, time and expense tracking, contact relationship management, budgeting and billing, and other accounting functions. At first blush, what organization wouldn’t welcome help accomplishing all these mundane tasks? In fact, many of the functions legal tech software is designed to handle would seem to help the law firm become more productive. Being more productive should lead to more revenue and success. 

As legal software technology has continued to develop to make it easier for lawyers to be more productive, the way the technology is delivered and data is stored has evolved—enter the Cloud—and more Confusion.

Most lawyers and law firms have been introduced to cloud computing services. The reluctance to jump on board cloud computing services could be interpreted as a lack of technological savvy. However, a closer look at the cloud, its definitions, and benefits, reveal something else may be at work.    

Lawyers’ Professional Responsibility To Safeguard Client Information

From the beginning of learning to think like a lawyer, it is pounded into the law student’s skull that it is the lawyer's foremost duty to safeguard client confidentiality. Unlike in other professions, vocations, or occupations, lawyers must adhere to a Code of Professional Conduct. Failure to adhere to the code can result in discipline from the State Bar.

RULE 1.6 of the Model Rules of Professional Conduct, entitled CONFIDENTIALITY OF INFORMATION says:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent …
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Cloud Computing

The National Institute of Standards and Technology provides the following definition of cloud computing:

"Cloud computing is a model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.” 

Unfortunately, this definition does not provide law firms the security they seek. 

The National Institute goes on to explain that cloud computing services can be categorized into three models, one of which is Software as a Service (SaaS).  This model allows the law firm access to the vendor’s software application running on a cloud infrastructure. A cloud infrastructure is the collection of hardware and software that enables the five essential characteristics of cloud computing. The five essential characteristics of cloud computer are: (1) on-demand self-service, (2) broad network access, (3) resource pooling, (4) rapid elasticity, and (5) measured service.

Under the Saas model, because the software has been deployed and resides exclusively on the vendor's server, users are unable to install, download, or transfer the application software to their own computers. The user cannot manage or control the underlying cloud infrastructure, including the network, servers, operating systems, storage, or application capabilities.

Like other organizations, law firms typically store documents, contacts, notes, and billing information. However, depending on the nature of the clients, significantly more detailed information such as trade secrets, financials, and competitively sensitive material is stored by lawyers.

Information Given To Lawyers for Safekeeping

Keeping what the client tells and provides the lawyer a secret forms the trust that is the hallmark of the client-lawyer relationship. When a client seeks legal assistance, the confidentiality rule encourages the client to communicate fully and openly with the lawyer even as to embarrassing or legally damaging subject matter. Lawyers need this information to represent the client effectively. 

Furthermore, the term "cloud" in "cloud computing" has an ephemeral, transient, fleeting quality to it. This by itself must strike fear in the lawyer’s heart. 

Lawyers are understandably cautious about placing this client information on something they cannot manage or control and has a fleeting quality to it.

Further, if hackers attack a retailer or a utility company, what is the fall out? There may be some job losses in the C-Suite, lost revenue, and shareholder value will decline temporarily. However, if a law firm is attacked, and client secrets are exposed, pink slips will be issued and revenue will go down for sure. It could spell the end of the law firm. The law firm’s reputation would suffer. Who would want to retain a law firm that couldn’t live up to its ethical duty to keep a secret? 

Keep in mind, lawyers are the creatures who quantify things like loss of reputation for a living.  Therefore, it wouldn’t matter if the legal software had the most convenient contact relationship management system in the world. If the law firm failed to safeguard information related to the representation of the client, there would be no more relationships to manage. 


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