General Practice, Solo & Small Firm DivisionMagazine
Practicing Law in Cyberspace
BY Jeffrey M. Aresty
More than half of all Americans are on the Internet, according to South Carolina lawyer Stephen Futeral, and this is only the beginning. If you haven’t already, it is time to establish your firm’s presence in the online community of cyberspace.
Lawyers are still debating how best to use the Internet in their law practices. In 1999, the Internet and the World Wide Web, which are the predominant technologies of cyberspace, have linked the world in a complex of relationships unbounded by geography. Legal research on the computer and, for many, e-mail, have become regular benefits of using the Internet.
But cyberspace is not without risks. There are no laws governing conduct in this new frontier. Lawyers have a unique opportunity to fulfill our role as guardians of the rule of law. We also have the opportunity to redefine the nature and delivery of legal services and reinvent law practice.
Roberta Katz, Netscape’s former general counsel and TECHSHOW™ keynote speaker, put these opportunities into perspective for lawyers. She noted that what we see today is not the future; it’s more like the toddler stage, with new Internet technologies being daily incorporated into our lives. Katz concluded that, as more and more people learn the advantages of doing business via the Internet, the transformation of our economy will force the legal profession to redefine both the justice system and the very nature of how we deliver legal services.
Many professional service firms are taking part in a trend that is rapidly becoming a strategic priority—becoming an e-business. They are using interactive technologies and enhanced knowledge management practices to create more connected relationships with their clients, colleagues, and service providers. Our clients and other service industries are already using e-commerce tools much more aggressively than we are. Lawyers have to catch up and assume our role in the digital frontier.
Cyberspace begins in our own minds, where we can learn about and begin to understand the culture of cyberspace. A useful starting point is to accept that we have to think and act differently when we are in cyberspace. Any traveler will tell you to learn about the culture of the place you are visiting in order to fully enjoy your time there. Cyberspace has its own culture, and a coherent framework.
In his book, Being Digital, Nicholas Negroponte, Founding Director of the MIT Media Lab, says that the key to understanding the Internet economy is to focus on the difference between bits and atoms. Our present global economy is governed by treaties (like GATT, for instance) that are about the movement of goods—atoms. "The information superhighway is about the global movement of weightless bits at the speed of light. As one industry after another looks at itself in the mirror and asks about its future in a digital world, that future is driven almost 100 percent by the ability of that company’s product or services to be rendered in digital form."
Bill Gates, in Business @ the Speed of Thought, writes that, "in the digital age, ‘connectivity’ takes on a broader meaning than simply putting two or more people in touch. The Internet...provides a new medium that takes the immediacy and spontaneity of technologies such as the TV and the phone and combines them with the depth and breadth inherent in paper communications. In addition, the ability to find information and match people with common interests is completely new."
Katz has described her view of the Internet as buyer-centered, based on building long-term relationships through custom solutions implemented by interactive websites with massive capabilities. She noted that other industries, such as financial services, are way ahead of the legal profession in developing an entirely new range of products and services, including—soon—a global trading network that never shuts down.
The legal profession is facing a marketplace in which, for the first time, clients will determine what services they will want to purchase, because incredible amounts of free legal information will be available on the Web. Richard Granat, chair of the ABA’s Technology2000 Task Force, believes that legal services will become unbundled, legal information will become productized, and legal services will become value-added.
Granat says that the Internet gives the law firm the opportunity to become the center of a network, by building a website that is a resource for information and products. The site can contain forms for collecting client information. It can have diagnostic checklists, frequently asked questions and answers, and places for group discussions. Like becoming active in your local chamber of commerce, lawyers need to use the Internet’s tools to go out, stake a space, and build credibility.
Several entrepreneurs, some of them lawyers, have begun to redefine legal service, by putting up websites with tremendous amounts of free legal information. This is very easy to do, since much legal information is already available in digital format. And, because making legal information available is not the same thing as delivering legal services (providing they are clearly differentiated), it is now possible for anyone to create a product from legal information and market it over the Internet. Such websites earn revenue from selling ads to lawyers (like a lawyer referral service, or interactive yellow pages) or related services. For example, a mortgage broker might advertise on an immigration law website with a lot of traffic, because many immigrants might soon become homeowners.
Websites that demonstrate these
To get into this digital world, you have to first figure out how to share information both internally within the firm and externally with clients, colleagues, and the public. Jerry Lawson’s book, The Complete Internet Handbook for Lawyers (ABA Law Practice Management Section, 1999), defines an Intranet as "a system that uses Internet-style technology for distributing information privately, as opposed to publicly...one of the hottest concepts in networked computing today."
Accounting firms are way ahead of law firms on this front, having established Intranets years ago to jumpstart entry-level personnel to more experienced positions. By organizing key operations in easily retrievable systems, accounting firms found that new employees could be productive from their first days on the job. Additionally, Lawson states, "an Intranet may be the best step you can take toward significantly reducing the flow of paper through your law firm."
E-mail is the gateway for sharing work product electronically, and this is the core function that lawyers must learn in order to transition to a cyberspace-based practice. Because sharing documents raises a host of security and ethics problems, practicing with nonsensitive messages is a good way to start. Once you become comfortable with this, you can learn more sophisticated technologies to manage work product and knowledge.
There are four communications models used with Internet communications: (1) the publication model, for distributing information to a group; (2) asymmetrical interaction model, for e-mail (in which I ask and you respond on your own time); (3) symmetrical interaction—our kids call it CHAT—for meetings in which many people talk together; and (4) virtual environment, for a group to work together from disparate locations.
Private extranet services are designed so that individuals from multiple organizations can share highly specialized information including databases, exhibits, calendars, and pleadings, just for starters (check them out at www.Legalextranet.com). General document sharing across multiple word processing formats and different Internet service providers is available through services such as findlaw.com and legalnetex.com. Some of these services are free, while others charge for use.
Private extranet services operate across a number of transactions and situations. You can use these services if your core activities revolve around document review and collaboration, often with many different parties. If you have a portable office (described in great detail in GP Solo & Small Firm Lawyer, June 1999), a laptop and the Internet can keep you up to date. A transactional attorney who uses extensive termsheets, agreements, and financial reports can have immediate access to permanent archives of all documentation involved in transactions, fully text-searchable from any computer in the world. Once you get the hang of it, you can use this capability to schedule meetings, post agendas, circulate position papers, and collaborate on strategies with limitless contacts.
Internet Marketing Strategies
There are two aspects to consider when developing an Internet marketing strategy. First, technologically sophisticated law firms are going to be in the best position to retain the business they have and to attract new, Web-savvy clients. Second, Internet business will become a major practice area.
Obviously, there are security and ethics considerations to incorporate as you develop your strategy; a great resource to help you with these is Legalethics.com. Study the disciplinary rules governing the solicitation of cases, lawyer advertising, unauthorized practice of law, and malpractice. Many of the issues arise due to the borderless environment of cyberspace.
With any new client, you would undoubtedly go through a series of questions to determine whether to accept the case. You can set up a website to accomplish the same thing, and protect yourself against an unintended violation of the disciplinary rules. An excellent example of a law firm website that carefully addresses these issues is visalaw.com. Technology and disclaimers are used to replicate the physical law office’s reception area, filing cabinets, and attorneys’ offices.
Your firm’s Internet marketing strategy also should reflect that the intellectual value of a law firm lies with connecting expertise with content; it is not in the content itself. Preparation of documents is already eroding as a practice area. Instead, lawyers may choose to develop expertise in the area of Internet law, also called cyberlaw, cyberspace law, information law, and the law of electronic commerce. In general, cyberlaw encompasses cases, statutes, and constitutional provisions affecting persons and institutions that control entry to cyberspace, provide access to cyberspace, create hardware and software that access cyberspace, or use computers to go online.
A Developing Specialty
Currently, the practice specialty of cyberlaw is wide open, with much uncharted territory and many unresolved questions. Only a handful of cases are directly on point, and major statutory schemes are not yet on the books. Lawyers and policymakers are currently looking to analogous cases and statutes to resolve Internet business issues, but many people question the efficacy of applying arguably outmoded law to a new digital environment.
Two important features of cyberlaw are its international scope and its technological requirements. Cyberspace is an international medium, and the Internet is a completely global entity. The path information takes as it travels through cyberspace is never predictable. It may zoom across Canada or Mexico, for example, en route from Los Angeles to Denver. Or, an e-mail from San Francisco to Jerusalem may travel through computers in Italy and Turkey in one direction, while the response might bounce up through Russia, down to Egypt, and across to Brazil before reaching the Bay Area. There is typically no way to predict which international borders will be crossed. Indeed, in cyberspace, there are no borders.
As this area of law evolves, several distinct practice areas of cyberlaw have begun to emerge: jurisdiction and related issues, freedom of expression, intellectual property, privacy protection, safety concerns, equal access, and electronic commerce.
As my friend and colleague, Ron Del Sesto, says, when you do anything in cyberspace, it’s like being everywhere and nowhere all at once! The legal profession, by and large, has tended to see technology as dehumanizing. By taking steps to understand and utilize it, you will invent new ways to deliver legal services to your clients and create your own twenty-first-century law firm. You don’t want to miss this trip. CL
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.
What Will Be, Michael Dertouzous
Being Digital , Nicholas Negroponte
Blueprint of the Digital Economy , Tapscott
Doing Business @ the Speed of Thought, Bill Gates
Release 2.0, Esther Dyson
The Complete Internet Handbook for Lawyers , Jerry Lawson