Alan Gahtan's Canadian Legal Resources

THE DIGITAL LAWYER: PARADIGM SHIFTS IN THE PRACTICE OF LAW

by Alan Gahtan


Introduction

I'm here to talk to you about how new technologies, especially the Internet, have radically transformed the practice of law. The focus of my practice is "computer law" (a speciality within intellectual property law) and "cyberlaw" (the law of electronic networks such as the Internet and of online services). However, much of what I intend to discuss is equally applicable to lawyers practicing in other areas of the law.

My discussion will focus on the following areas:


Outline


Lawyer-Client Communications

I've been using e-mail as a preferred method of communicating with clients for over five years now. I'm not alone. A 1995 survey of computer use by large US law firms conducted by the Chicago Kent College of Law revealed that 68% of firms reported providing Internet electronic mail.

I think lawyers, whether in in-house or in private practice servicing large corporate clients, will need to make greater use of e-mail. The reasons have both to do with productivity and with convenience to the client. Corporate clients will become increasingly annoyed at lawyers who that cannot communicate with them using the same tools they use internally.

In addition to communicating with clients, e-mail communications is also useful for communicating with other lawyers and government entities.

However, the use of e-mail warrants consideration of a number of caveats:


E-Mail Caveats


Confidentiality

Lawyers have an ethical duty to protect their client's secrets. For instance, Rule 4 of the Law Society of Upper Canada's Rules of Professional Conduct provides that a lawyer has a duty to hold in strict confidence all information concerning the business affairs of a client. Failure to take reasonable steps can expose a lawyer to a malpractice claim or disciplinary action for breach of their ethical obligation.

The Internet is not a secure medium for the transmission of electronic mail. Absent the use of encryption, a message can be intercepted and read without the knowledge of either the sender or the recipient. The very nature of online services makes it possible for their system operators to gain access to all communications that are transmitted through them. The greatest risk of interception is not from hackers but rather system administrators who operate the systems utilized by the sender or the recipient.

Information otherwise protected by solicitor-client privilege must generally be communicated in confidence and outside the presence of third parties in order to retain its protected character. The use of the Internet is analogous to the use of a cellular telephone. There is therefore a risk that a court may find that the use of regular Internet E-mail may be interpreted as a waiver of attorney-client privilege because a secure medium was not used.

Clients should be cautioned about the risk of interception so that they can make an informed decision about the use of e-mail communications with their legal advisors. Some US jurisdictions, such as South Carolina and Iowa, have issued ethics opinions indicating that attorneys should seek an express waiver from clients in certain circumstances regarding the possible interception of Internet e-mail.

The use of unencrypted e-mail sent through the Internet is probably safe enough for most types of messages that lawyers will send and receive. Unencrypted Internet e-mail may be useful as a way for potential clients to make initial contact with a lawyer and for general follow-up messages. However, the use of an alternative medium or the use of encryption may be necessary to protect more sensitive messages such as those sent during active negotiations.

The greatest danger relating to the use of e-mail by lawyers will likely come from lawyers or clients who become accustomed to using e-mail within their own firm or organization and who are not sensitized to the security issues relating to the transmission of e-mail outside their firm or organization.

Legal Opinion

Every E-mail message can be a legal opinion. Adequate consideration of the response needs to be undertaken before replying.

Lawyers who utilize e-mail for communicating with clients also need to ensure that adequate copies are kept. Most lawyers make notes of phone calls and keep copies of letters and faxes. However, many have not instituted a similar system for retention of e-mail messages. Some e-mail programs automatically store "sent" messages in a special folder. However, one must still make sure that these folders are being backed up (they may not be if they are located on a laptop, home computer or the hard disk of a network PC). One must also make sure that the e-mail program is not configured to automatically purge messages that are older than a pre-set age. A safe practice would be to print out copies of e-mail messages to be saved in the matter file.

Timely Response

Lawyers who utilize e-mail for communicating with clients must avoid alienating clients with an untimely response. Failure to answer an e-mail communication, like any other communication, may also constitute a breach of professional ethics.

Rule 2, Commentary 8 of the LSUC's Rules of Professional Conduct sets out examples of unsatisfactory practice which does not meet the quality of service required under the Rule. Paragraph (f) of Commentary 8 provides that a failure to answer a communication that requires a reply within a reasonable time constitutes an example of such unsatisfactory practice.

There is no administrative overhead involved in responding to e-mail - many clients expect responses within one to two hours if not minutes. While a substantive answer can usually not be provided within that time frame, some sort of response should be sent advising the sender what action you intend to take and when it will be completed. You may want to considering developing a number of "canned" responses which can be cut and pasted into the initial response.

There needs to be a process to deal with e-mail messages that come in when the lawyer is absent for more than a day. It may be possible to delegate e-mail to a secretary or to program a system generated response. Also, don't publish an e-mail address for any lawyer who doesn't regularly access his or her e-mail box unless the mail will be forwarded to someone who will bring it to that lawyer's attention within a timely period.

Don't Send Excessive E-mail

With e-mail it's very easy to add additional recipients to a message. However, reading irrelevant messages can be annoying and expensive. Ensure that e-mail messages are only sent to those individuals who really do need to read them.

Convenience to Client

Use a form of e-mail communications that is convenient for the client. For corporate clients this means a gateway exchange of mail between the corporate client's "post office" and the law firm's "post office". Corporate clients should not be asked to use a special program (remote mail client) to connect to the law firm's e-mail system.


Where Are We Headed?

A caller-id interface can associate one or more phone numbers with a particular client and then used to display client information on the lawyer's PC. This can include information on outstanding matters, who is working on the file and status, access to billing history and outstanding bills, personal information about the client, etc.

A number of major law firms are setting up video conferencing facilities. Expect to see the use of this technology moved out to the lawyer's desktop as PC-based video conferencing equipment continues to drop in price and network bandwidth is increased.

Whiteboard facilities allow a multiple lawyers, or a lawyer and client, to review a document simultaneously. The inclusion of a whiteboard facility in the latest version of popular Web browsers, such as Netscape 3.0 and Microsoft Internet Explorer 3.0, will mean that most Internet-attached lawyers and clients will soon have access to this function without the need for specialized programs.

Desktop access to the Web isn't just for monitoring new developments (which I'll be discussing next). The quantity of content on the Net useful to practicing lawyers is increasing. Desktop access to the Web is also useful for:


Online Review of Client Material

In the past, material from the client arrived in printed form for review. However, as clients increasingly utilize the Internet for marketing and promotional activities, they will want their legal advisors to log onto their Web sites (in some cases, using passwords to access material that is still under development). Web development is a dynamic, on-going process and the legal review process will need to accommodate this new medium. This is presenting a real challenge to lawyers who are accustomed to keeping printed files of static material they have opined upon.


Monitoring New (Legal) Developments

In the past, lawyers kept up on new developments in their practice areas by reading newsletters, update notices sent with looseleaf services and legal newspapers. However, the items in those sources are weeks to months old by the time they reach a lawyer's desk.

Today Internet-aware lawyers monitor new developments by:

E-mail discussion facilities allow for immediate discussion of current legal developments. For example, during the U.S. Communications Decency Act trial held in the Spring of 1996, day-to-day coverage and immediate commentary was provided on the CYBERIA-L discussion list.


Marketing Legal Services

Past

Present


Law Firm Internet Web Site

A firm's Web site should not be an end in itself but rather one component of a firm's marketing strategy.

A poorly designed or promoted Web site won't provide much benefit. However, one that is properly designed to appeal to a law firm's target audience, when properly promoted, can help a firm retain existing clients as well as attract new ones.

A Web site that consists merely of an electronic firm brochure or business card will do little. You need to give people a reason to visit your Web site and keep coming back. The content must be dynamic and useful to the target audience.

A hot new application being explored for law firm web sites is the delivery of services to clients. Information submitted by a client into a secure, web-based form can be fed into a document modeling or expert system, whose output can then be forwarded to the client's lawyer for review.

Caveats

One of the differences between publishing on the Web and publishing in other media such as print is that on the Web, the work is never finished. One can always add more pages to the site, update information, add articles, legislation updates, etc. In fact, web sites by their nature need frequent updates in order to keep visitors coming back.

However, all these changes may need to be captured in some sort of permanent, tangible form, in order to allow for possible review by the bar's licensing authority. Many jurisdictions require lawyers to retain a copy of advertisements for a specified period of time. Lawyers practising in Texas and Florida are required to file copies with their bar authorities of all advertising including web sites along with a fee. In the case of Texas, any subsequent "material" change must also be submitted.

People without a good understanding of the Net may misunderstand the context of material made available on a law firm web site. The problem is made worst by the hyper-linking aspect of the Web that allows direct links from one site to a document on another site, thereby potentially camouflaging the context of what is presented. For example, a visitor may be sent directly to an article at your site from a search engine, thereby by-passing the normal notices that visitors are greeted with at your site's home page. You should therefore ensure that each page has an appropriate notice and link to a general notice and disclaimer page.


Usenet and E-Mail Discussions Caveats

Non-lawyers often pose legal questions in online chat facilities found on commercial online services, on Usenet newsgroups and in e-mail discussions run on "list servers". There is a risk that the recipient or even a third person monitoring a discussion forum may rely on a lawyer's response. If the question or response is specific enough, a solicitor-client relationship may be created even if a fee is not paid. Many lawyers who participate in Usenet or e-mail discussion facilities append a "signature line" to the end of each message which states that the contents of the message should not be construed or relied upon as a legal opinion.

Legal questions may come from anywhere in the world. There is a risk that a lawyer's response to a question submitted to a Usenet newsgroup or participation in E-mail discussion facilities may be construed as unauthorized practice of law in jurisdictions where the lawyer/author is not admitted. Another related risk is that a lawyer's response posted to a discussion forum may subject him or her to the jurisdiction of a court in another province or state.

Messages exchanged on Usenet or e-mail discussion lists are also commonly archived. These archives may in turn be indexed by various search engines. These is therefore a risk that someone may come across a message containing legal information that is out of date and therefore no longer accurate.

Many lawyers who participate in discussion forums do not utilize the traditional screening mechanisms they would otherwise use for a new client. It is important to ascertain the identiy of the person asking the question and a conflicts check conducted before answering a specific legal question. A lawyer's obligations regarding confidentiality also needs to be considered before addressing a response back to a discussion forum rather than a direct e-mail message to the intended recipient.

In Ontario, a lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or professional relationship when a significant motive for the lawyer's so doing is to be retained in a particular matter (Rule 12, Commentary 4). The term "solicit" would appear to include e-mail directed to a specific recipient. More general advertising distributed generally to persons not known to need legal services is permitted, but may need to be marked as an advertisement.


Law Department Intranet Web Site

Intranets, which are internal corporate networks employing Internet technology, are being deployed at many large companies. Law Departments are increasingly awakening to the potential of using this technology to help them share information not only among themselves but also better serve their clients' needs.

Aside from their utility in sharing information between lawyers and in publishing information to clients, Intranets are also being considered as an alternative user interface at many law firms and law departments. In a typical law firm or law department, lawyers are expected to learn 4-8 different program interfaces. Examples include e-mail, scheduler, case management, document management, etc. in addition to word processing. This is a difficult task particularly for lawyers, who as a group, tend to be casual users. One of the big advantages of the Intranet concept is that a lawyer can easily learn how to use a browser and thereby have access to all sorts of different information after mastering a single user interface.


Law Firm Intranet Ideas


Changing Client Base and Organization of Practice

The Internet is helping lawyers in private practice reach out to more national and international clients. It is encouraging the formation of virtual law firms or associations across geographic boundaries and is making the online practice of law feasible. Electronic communications means that physical distance is less of a barrier to the formation of collaborative or solicitor-client relationships.

There is no reason why an electronic network cannot serve as the office space of a virtual firm and as the means for allowing the individual lawyers to work in a collaborate manner. The network can be used to facilitate e-mail, electronic meetings, access to precedents, legal research material and even limited sharing of support staff.

However, professional ethics and rules of practice must still be observed particularly the ones that relate to solicitation, advertising, confidentiality, conflicts and unauthorized practice. Law firms will need to look at issues of competency, licensing and malpractice insurance. As the number of non-local clients increase, this will place an additional premium on lawyers who can practice in multiple jurisdictions.

Tips


Legal Recruiting

In the past, law firms placed ads in legal publications such as Ontario Reports and business newspapers such as the Globe & Mail. The Internet is introducing new possibilities:


Continuing Legal Education

In the US, 38 states have mandatory CLE requirements. These types of requirements may come to Canada sometime soon. The Internet can provide access to searchable databases of CLE programs. Lawyers are no longer limited to choosing from the flyers they receive.

In the past, lawyers attended seminars in person. In the future, as more lawyers gain online access to the Internet, this will promote greater availability of CLE programs delivered directly to the lawyer's desktop.

Recently, Neil Teitelbaum, an Ontario lawyer, operated a Web-based "Patent Distance Learning" program from his Ottawa practice to provide individuals preparing for the US or Canadian Patent Agents exams with some basic training.

The State Bar of California has also begun offering online credit CLE courses through the Internet.


Locating Other Lawyers


Electronic Media Discovery

Most e-mail systems store individual messages as either a separate file, or more commonly, as a database record. In the later types of systems, deleting an e-mail message simply marks or flags the message as deleted. The message is not really deleted until a "compression" utility is periodically run by the administrator.

Most e-mail systems store attachments as separate physical files in an e-mail directory. Deleting a mail message causes the associated attachments to be flagged for deletion. However, it may still be possible to recover the attachments if their storage location on the disk drive has not been allocated to a new file.

E-mail transmitted between multiple post offices may have to travel through one or more intermediate systems or gateways. Each of these may retain a copy for a temporary period of time.

The increasing interconnection of law firm e-mail systems, whether through Internet gateways or third party service providers, has encouraged the transmission of documents in electronic form between lawyers. These typically take the form of word processing documents sent as attachments to an e-mail message.

Lawyers need to understand that there is a risk that a word processing document may contain more information than that which appears from a printed copy of the document. For example, popular word processing programs including WordPerfect and Microsoft Word, have a "fast save" option. If this option is turned on then deletions made to a document may not be physically removed from a document when the updated version is re-saved. Although the deleted text does not appear when the document is viewed using the word processing program, it is possible to view the document using a utility program which will also display the "deleted" text.


Legal Issues Related to Cyberspace

The growing use of the Internet by clients is also raising a number of new legal issues and expanding the work of lawyers practising in the online, computer and technology law field. Many are now being called upon to assist clients with substantive legal questions related to their client's use of the Web.

Domain Names

Content Review

Many contests run by U.S. sponsors on the Web have been limited to U.S. residents only. Some are beginning to open up contests to residents of Canada (except Quebec).

Employee Use of the Internet

Other Legal Issues Related to Cyberspace

Digital Signatures

A number of U.S. jurisdictions, including Utah, California and Florida, have passed digital signature legislation. Such legislation, in some cases allows documents to be digitally signed and legally binding, in some cases by a person simply adding their name at the end of a message.


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