General Practice, Solo & Small Firm DivisionMagazine
The Virtual Law Office Reengineering the Practice of Law for the Digital Age
By Jeffrey M. Aresty
Evolution has been seen as a billion-year drama that led inexorably to its grandest creation: human intelligence. The emergence in the early twenty-first century of a new form of intelligence on Earth that can compete with, and ultimately significantly exceed, human intelligence will be a development of greater import than any of the events that have shaped human history. It will be no less important than the creation of the intelligence that created it, and will have profound implications for all aspects of human endeavor, including the nature of work, human learning, government, warfare, the arts and our concept of ourselves."
—Ray Kurzweil, inventor of some of the most advanced technology of our era, The Age of Spiritual Machines, Viking Press, 1999.
We are on the brink of the evolution of human society. The very nature of human intelligence is changing because a new form of global interconnectedness called electronic commerce has emerged as a powerful global force, with the potential to change the future of business and society itself.
Utilizing the global resource of the Internet and its powerful built-in technologies, businesses have started a rapid reengineering of the economy by learning how to operate electronically. All of a sudden, people all over the globe are using a "frictionless," highly efficient global marketspace. In an otherwise turbulent world at the end of the twentieth century, a new, vigorous market force has been responsible for creating the most vibrant economic expansion in the history of the world, as information companies move to the forefront of the world economy.
The ABA’s Role
With this great change upon us, lawyers have a lot to do, both individually and as a profession, to adapt to the practice of law in the world economy of the twenty-first century. The legal profession, through the organized bar, recognized the challenge and need to identify the legal and business issues that resulted from the implementation of new technology and to create a legal infrastructure for borderless economies. Groups from all over the world began collaborating to develop these rules, while members of the bar also began to reinvent the delivery of legal services.
The rulemaking efforts developed when several ABA sections anticipated that new rules and methods to determine jurisdiction in cyberspace would be needed—they started working on them as early as ten years ago. The Transnational Jurisdiction in Cyberspace Project, directed by the Business Law Section’s Cyberspace Law Committee, has developed into an international collaborative effort to survey various countries’ legal systems and treaties that affect questions of applicable law and jurisdiction in the context of cyberspace.
Its goal is to identify emerging principles by which the governance of cyberspace can be accomplished among the countries. The following specific subject areas are considered priorities: taxation, payment systems/banking, sale of services, securities, advertising/consumer protection, public law implications—gaming, sale of goods, intellectual property, and privacy. (More information on the Cyberspace Project is available at www.kentlaw.edu/cyberlaw.)
In 1998, the Law Practice Management Section, at the urging of then-ABA President-elect Bill Paul, began to develop a plan for the profession to use technology to facilitate, expand, and improve the delivery of legal services to clients of moderate means, as a first step toward reengineering the practice of law for the digital age. The TECH2000 Task Force was created and is in the process of completing the following work during the 1999-2000 ABA year:
1. Create a website to promote the use of technology in legal services.
2. Hold a national invitational conference to unite key players in technology and law.
3. Produce a report to summarize models for delivering legal services through technology.
4. Promote the benefits of such use and issues surrounding it to practitioners.
5. Recommend a long-range plan of action for the ABA to assist lawyers in providing electronic services to clients of moderate means.
Products v. Services
TECH2000, under the direction of Maryland attorney Richard Granat, is using the case study approach and gathering examples of lawyers who have already starting practicing law in cyberspace. With several sites surveyed, the task force members concluded that a key issue that will affect every lawyer is how the digitization of information is giving rise to an unbundling of legal services in many of these websites. This is manifested by the separation of the sale of legal information in product form from the delivery of the legal service itself, which raises ethical issues and goes to the heart of defining what is the practice of law. How the profession addresses this issue will play a central role in the reengineering of the legal profession.
An example will illustrate the point. Look at www.marylandlaw online.com and you will find legal form kits and online services designed to make the self-representation process "easy and manageable," according to the site. You can buy a kit on an "as-needed" basis or pay for an annual subscription. By buying the kit, you can represent yourself without ever hiring a lawyer. I understand that this is a very successful website, and it is based on the premise that there are many people who will buy legal information in product form over the Internet, to educate themselves before they represent their own interests.
This example identifies the inherent difference between selling legal information and practicing law. When you sell legal information to a customer, no attorney/ client relationship exists. The customer (not a "client") has chosen not to hire a lawyer and, instead, to buy legal information, for whatever the reason. Some states, such as Texas, are questioning whether such a distinction can be maintained when the legal information being sold includes a document assembly component that has interactive aspects to it. This issue is at the core of the ethical dilemma that lawyers face. And the legal profession needs to come to a uniform resolution of this issue, or lawyers with websites anywhere in the world could find themselves being prosecuted for the unauthorized practice of law in an unfriendly jurisdiction.
Task force member Todd Miller, of Holland and Hart, provided the following list of online legal services programs:
• Maricopa County Superior Court Self Service Center ( www.superiorcourt.maricopa.gov/ssc/sschome.html). Forms and instructions, as well as basic information about the court process.
• The People’s Law Library of Maryland ( www.peoples-law. com/default_40.asp). Information about family law, probate, and landlord-tenant problems, a child support calculator, and related forms. The system is heavily promoted by the Maryland Court Law Library System and the judicial system in Maryland.
• The Georgia Legal Services On Line Domestic Violence Protection Project ( www.fcny.org/dv/ main.htm). Forms preparation by eliciting appropriate information through a series of questions and answers. Produces completed forms, as well as instructions on the court process.
• The Gateways to Justice Project , in coordination with the New York State court system, is currently developing an eviction defense preparation system.
After you learn about these examples of the digital distribution of information over the Internet, the power of connecting people using digitized information is apparent. In every case, an effort has been made to establish a strong channel of communication with a constituency, legal resources have been made available, and a marketing approach has been presented, all on a 24/7 basis. These are the beginnings of virtual offices—Internet spaces where close working relationships are being established, and knowledge is being created efficiently, to identify solutions to legal problems. At their best, these virtual offices provide communication, collaboration, and coordination among lawyers, clients, and prospective clients.
I can envision all lawyers eventually wanting to set up their own virtual offices. The first ones to do this will have distinct advantages over those who come later. That is Rule #1 of the Internet—there are advantages to the first mover in a marketplace (or "marketspace"). Of course, Rule #2 is that you must constantly innovate to maintain this position.
Setting Up Your Connection to Cyberspace
Spurred by all of the predictions of momentous change, I relocated much of my law practice to cyberspace by setting up my virtual office, as much to figure out what is going on as to be part of it.
I asked myself what I wanted to be able to do in my virtual office. One day I could envision myself working in a manner like this description of Steve Jobs, CEO at Pixar and Apple: "Of course, it
doesn’t really matter where he works. Whether he’s at Pixar, at Apple or at home in Palo Alto, Jobs just parks in front of a computer linked via high-speed line to a server that offers the current state of affairs at both companies: documents, presentations and e-mail, e-mail, e-mail" ( Time, October 18, 1999). So the path to cyberspace was through increasing my time online using e-mail. Yes, I can do e-mail!
In the United States today, e-mail tops the list of reasons for Internet use. A new survey by PricewaterhouseCoopers (1998 Consumer Technology Survey; www.pwcglobal. com) finds that e-mail has replaced research as the primary reason U.S. Internet users go online. "The PricewaterhouseCoopers poll of 800 users in the U.S., U.K., Germany, and France found that 48% of U.S. consumers said e-mail is their primary reason for going online, surpassing research (28%). UK users said they use the Internet almost equally for e-mail (39%) and research (38%). Both the Germans and French primarily go online for research purposes."
Why e-mail? In the December 1998 issue of Technology & Practice Guide, Stuart Levine said in "Putting E-Mail to Use in Your Practice": "In a broad sense, there are three aspects to the practice of law: (1) obtaining the legal product that one sells to clients, (2) getting the clients to sell it to (or getting existing clients to buy more of it), and (3) producing that product to the clients’ specifications and distributing it…e-mail, used properly, ties into all three of these goals."
In its simplest form, the virtual office was my e-mail address. As Kenneth Johnson says in his Quick Guide to E-Mail (ABA Law Practice Management Section):
E-mail is a fast way to deliver information, it is virtually free, other files can be sent with e-mail messages, time zones make no difference, e-mail allows for rapid turnaround of messages, you can send messages to many people at once, replying to a message is easy, messages can be saved in folders and searched electronically, you can access your e-mail on the road, it can improve internal communications within your firm, and most important of all, your clients want to send e-mail to you.
After I began using e-mail to communicate with clients and other lawyers, I found there were a certain number of skills that were useful to have. At the ABA Section Officers Conference in 1999, David Vandagriff listed the following skills you’ll need to know, all of which can be learned by picking up Johnson’s book from the ABA, or Jerry Lawson’s Lawyer’s Guide to the Internet (ABA Law Practice Management Section, 1999).
• You should be able to transmit any type of document. Lawyers want to be able to send a word processing document or scanned image securely.
• You should be able to send a secure document to anyone with an e-mail address and Internet access.
• An important document should be encrypted from the moment it leaves your desk until the moment it arrives at the recipient’s address.
• You should be able to track the status of your document at any time after it leaves your desktop. The entire message trail between you and your recipient should be irrefutably date-stamped, subject to audit, and provable in court.
• The system should allow you to retain content and deliver confirmation for an extended period of time following actual delivery.
• Neither the sender nor the recipient should be forced to use a particular digital certificate. (A personal digital certificate stores your key information and is used to sign messages and send encrypted mail. These certificates are issued by third-party certificate authorities such as Verisign. When you encrypt a message based on a key, it is rendered into a seemingly random set of letters, numbers, and symbols. Anyone who wrongly intercepts the message sees only junk text.)
• All certificate authorities are not created equal. A digital certificate issued by an unreliable certificate authority cannot be used to verify identify.
As you can tell from this list, the possibility that e-mail can be intercepted is real. A lot has been written on the subject. If an e-mail with sensitive information is intercepted, there is a risk that either attorney-client privilege or ethical duty of confidentiality has been breached, creating malpractice exposure. (See "Security and Electronic Mail" by Daniel Coolidge, page 16.)
Reengineering the Practice of Law
In one sense, e-mail is just a very fast courier service. But that is missing the point of the potential to reengineer legal service delivery. What does it mean to deliver services electronically, the bread and butter of a digital lawyer? One of the best sites on the Internet that explains this idea is www.digital-lawyer.com, which is run by Richard Granat. In an article at the site, Granant explains that the phrase "The Digital Lawyer" was first coined by Professor M. Ethan Katsh in a series of articles and in his book, Law in a Digital World. Katsh wrote:
The essential difference between the digital lawyer of the future, which may turn out to be the only kind of lawyer to thrive in the future, and today’s lawyer, lies only partly in access to technology and in skill in using technology. Rather, the core change in the digital lawyer is an understanding of the value of information in an environment where new tools for processing and communicating information make adding value to information and using information to develop new relationships the central concern of the economic system. The digital lawyer knows that although the new media present opportunities to save time, the most novel characteristic of these technologies may be in how they operate on space and distance. The successful digital lawyer is one who knows that he or she is in the information business as much as in the legal business, and that while automation often means that "time is money" in law practice, the more important insight is that "information is money."
A phrase that is becoming quite common these days best describes what a digital lawyer does: knowledge management. We connect relevant content with people. To do this, we have to communicate, collaborate, and coordinate with people so that the relevant knowledge is accessed and utilized quickly. E-mail can take you far, but now there are also technologies that can be leased to take you much further.
The Next Level
Using e-mail as your virtual office has its limitations. If all the world can see of you in cyberspace is your e-mail address, they will have a difficult time finding you or more information about you. Building a website is an important next step but is not the subject of this article. Websites have been used by lawyers primarily as advertisements; they are multimedia brochures, more or less. Some law firms have added digital repositories of their articles to their sites, or links to other valuable information and other websites. This makes the website more valuable to your clients and prospective clients, because they can visit and get information about law for free, not just information about your law firm.
While there is more to the digital practice of law than offering information for free, putting up your website is the logical next step after integrating e-mail. For more on how to incorporate websites into your virtual practice, see the ABA Techshow 1999 CD-ROM information ( www.techshow.com/ abasol/pdf), Jerry Lawson’s The Complete Internet Handbook for Lawyers, and Greg Siskind’s Lawyer’s Guide to Marketing on the Internet, all available from the ABA Law Practice Management Section.
Techshow has been fertile ground for me to venture into ideas about digital practice. In a West Group presentation "Elevate Your Practice to New Heights on the Internet," Kevin Ritchey and Brian Doyle discussed four generations of virtual office development for websites. First-generation websites are essentially brochures and electronic business cards; second-generation websites target content specifically designed for your client base. Third- generation websites access digital repositories of content, and fourth-generation websites use extranets to present specific client content.
This sounded much like the virtual office I was looking for—a website that combined electronic mail, discussion groups, digital libraries of legal content, and links to relevant websites; contained secure private areas online where I could store documents and hold meetings with other lawyers and clients; and was available 24 hours a day, 7 days a week. The only problem was that if I had to find the technology, install it, maintain it on my computer, and troubleshoot the inevitable problems, there was no way I could foresee an office coming together in the near term. But that view was forever altered at Techshow 1999. When I left Techshow, I knew that the Internet is simply a computer, Internet technology is available and relatively easy to use, and slow connections are quickly obsolescing as bandwidth opens up high-speed access for everyone.
I decided to set up a virtual office using LOTUS Release 5 Notes/Domino group application software. In a chance meeting at the show, I was encouraged to pursue this course by the president of the Iowa bar, Dave Beckman, who has been using Notes for years. He can now travel and be completely connected to his office and to his clients via a handheld PalmPilot. This allows him to send and receive e-mail, do legal research, collaborate securely with anyone working on any matter, and be on top of his calendar as it changes. Technology gives him a way to find and share information in real time, just as though he were sitting in his office. With a PalmPilot personal information manager the size of a robust pocket calculator, he is fully connected and completely mobile. Intense! I’ve got a ways to go to catch up with Dave; however, his vision has spurred me on and my office is on the way.
What is changing the face of cyberspace is the availability of powerful software for purchase or lease over the Internet. Collaborative software that can be accessed electronically allows groups to assign access privileges, share documents and drawings, conduct group discussions both in realtime and asynchronously (through the use of threaded discussions), schedule meetings, and manage and track multiple document versions. And you can have all of this without investing in and installing a business-wide infrastructure.
I think it is fair to conclude that paying attention to the Internet and what it has to offer is the key to practicing law in the years ahead. It will become increasingly difficult to describe the digital practice of law to lawyers who refuse to surf the web or let others do it for them. The Internet is the great equalizer between solo and small firms and large firm practitioners. Just as prospective clients will have access to an infinite amount of information about law on the Internet, so will all lawyers.
We are still the profession that has been trained to apply the rule of law in society, and that holds attorney-client privilege to protect communication between lawyer and client. As the twenty-first century dawns, the only way that lawyers will keep our unique role in society is to get on to the web, be where the clients are, and learn how to practice law in the digital age. n
Jeffrey M. Aresty practices in cyberspace at www.cyberspaceattorney. com and is the senior partner of Aresty International Law Offices, P.C. He is the reporter of the ABA Law Practice Management Section’s Tech2000 Task Force, which is committed to developing in 1999-2000 a virtual community of legal professionals committed to improving the delivery of legal services through the use of technology. He is co-editor of The ABA Guide to International Business Negotiations , now gearing up for its second edition, which will incorporate a guide to e-commerce practices globally, and will be updated virtually.