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Lawyers in the Networld


M. Ethan Katsh [ * ]
University of Massachusetts, Amherst

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Abstract

     Lawyers in the Networld focuses on the impact of the new technologies on the legal profession and legal practice. A lawyer wrote recently that "from the moment we lawyers enter our offices, until we turn off the lights at night, we deal with information." Perhaps even more important than how lawyers work with information is the fact that lawyers are defined by their relationship with information, since the law is a profession and professions have an assumed expertise in a body of knowledge. The article will first examine the nature of the lawyer's relationship with information and several ways in which the new technologies pose a challenge to the traditional relationship. It will then look at the lawy as a profession and the nature of professional control over information. Changes that are likely to occur in both the nature of legal practice and in the organization of the profession will be addressed.

Introduction

Lawyer No. 1: "The computer? It’s just a new tool. Makes documents look pretty. Lets clients know we’re high tech. Gets the bills out faster. Keeps track of time. We've invested a lot and I wish I knew whether our investment was paying off."
Lawyer No. 2: "I'm not even sure it is a good tool. We've also invested a lot of money in machines. So what happens? We had to deal with an epidemic of people spending time playing solitaire. Our e-mail system broke down last week after we upgraded the software. And a lawyer in the firm wants to work at home during the week. Says he doesn't need to come to the office, as long as the e-mail system works."
Lawyer No. 1: "And now there's this cyberspace. One of our lawyers thinks we need something called a World Wide Web "home page".
Doesn't sound all that different from the Yellow Pages to me. He says there are millions of potential clients out there, wherever "there" is. I'd feel better if I saw even one person walk out of the computer screen and ask us to represent them."
Lawyer No. 2: "I heard that a lawyer - not in my firm, thank god - thought that 45 minutes of "surfing the net," whatever that is, could be billed to a client as a research expense."

Confused, ambivalent, mystified, fearful, attracted to, excited by, enthralled. Each of the above terms represents a valid description of how some segment of the legal profession perceives the new information technologies. For some lawyers, cyberspace is already an enticing, useful and familiar place, one that may be used as often as the library or conference room down the hall. Indeed, for such lawyers, cyberspace may actually be a substitute for the library or conference room down the hall. For other lawyers, however, what is occurring in cyberspace is about as relevant to their professional lives, and about as understandable, as what is taking place in outer space. For these lawyers, any and all concerns and anxieties that come to the surface when they press a computer's "ON" button, are magnified whenever computers are used to communicate with distant machines.

The fairly rapid growth in the use of computers by the profession has been documented in several recent studies [ 1 ]. These studies provide valuable benchmarks for understanding the nature and growth of computer use in the profession. The Staudt/Shiels Chicago-Kent Law School series of studies of large firms, for example, shows that virtually all lawyers associated with the five hundred largest law firms currently have computers on their desks [ 2 ]. In the 1995 American Bar Association study of solo practitioners and smaller law firms, eighty-seven percent of respondents reported using a personal computer in their practice, compared with fifty-nine percent in 1990 [ 3 ].

Cyberspace and the Internet are not yet exactly on the practitioner's desktop, but they are probably on their minds. The American Bar Association study indicated that 21% of respondents used the Internet in early 1995 while 45% intend to use it in the next twelve months [ 4 ]. In the Chicago-Kent study, approximately 58% of the firms had Internet access in late 1994 [ 5 ]. It is quite possible that the number of lawyers who began to use the Internet during 1995 was equal to all those who connected in the past seven years.

In spite of the extraordinarily impressive statistics of Internet growth generally during the past few years, one who looks at the numbers closely can still conclude that most lawyers probably are more familiar with E.B. White's Charlotte's Web than with the World Wide Web. The contingent of lawyers using computers is quite high and the contingent of lawyers in cyberspace is growing but it still does not represent a high percentage of all lawyers. There are more than 1700 subscribers who participate in the net-lawyers forum on the Internet and several hundred firms and law schools already have home pages on the World Wide Web. Counsel Connect, which began operation in early 1994, has over 35,000 subscribers. Many others participate in LawJournal Extra, an online service for lawyers begun in late 1994. Law-oriented discussions are also popular on the major commercial online services, such as Compuserve and America Online. All of this is impressive but it still is likely that, while growing numbers of lawyers have contacts and clients with computer links, most lawyers are still dependent on faxes, "snail mail", and information on paper. Even for research, print materials are probably still the medium of choice. The majority of lawyers in the United States, largely solo practitioners and small law firms, do not even subscribe to, much less use, the electronic research opportunities provided by Lexis and Westlaw.[ 6 ]

In this essay, I shall be less concerned with how or how quickly lawyers are using computers for working with information and for communicating with others than on what it may mean as the focal point of the lawyer's relationship with information becomes oriented around digital technologies rather than print media. Law is an information-oriented profession. As one lawyer has written, "from the moment we lawyers enter our offices, until we turn off the lights at night, we deal with information." [ 7 ] The theme of this essay is that the manner in which lawyers "deal with information" and the context in which they do it will affect the future of the profession.

Lawyers are not merely users of information. If they were, the new technologies might simply be a convenience, increasing the speed or efficiency with which various informational tasks are carried out but having little impact beyond this. In addition, however, lawyers are defined by information, in the sense that the legal profession, like all of the traditional professions, is associated with and given control over a particular body of knowledge. This makes an assessment of the impact of information technologies on lawyers somewhat more complex than a similar assessment on other kinds of information workers, such as bankers, journalists or publishers, occupations which are also touched by the new media but which do not have the degree of control over information that traditionally has been exercised by the legal profession. The move of the legal profession involves not simply lawyers but legal educational institutions, bar associations, and codes of professional responsibility. These are forces that will affect the speed with which the transition occurs.

This essay argues that lawyers are engaged both in a process of adaptation, as new tools displace old tools, and in a process of acculturation, as a new information environment emerges in which there are changing assumptions and expectations about the value and use of information. I begin with a discussion of the tool perspective, the most common way of looking at what it means that a new technology is being employed by lawyers. This perspective assumes that the computer is largely a device, albeit a powerful one, that enables lawyers to perform traditional informational tasks much more quickly than was possible previously. In discussing this view, I suggest that it inadequately describes the nature of change since new tools do more than promote efficiency. They change not only how one works but lead old users in new directions and create new classes of users. In the second part of the Essay, I suggest that the new media provide us not merely with new tools but with a new culture. As a result, change will be felt not only in what lawyers do but in who lawyers are and in what it means to be a profession,

New tools: The lawyer as information worker

Implicit in almost all discussions of technology and legal practice is the message that the computer is a powerful tool which can increase the speed of performing informational tasks. The tool perspective suggests that those who invest in new technology and use it properly will become more efficient at what they do. The technology should provide a competitive advantage if it allows one to perform some tasks more quickly than before and to perform them more quickly than competitors. As one lawyer has written, "[t]he driving force behind this surge of increased computer use is the quest for efficiency".[ 8 ]

Much software reinforces the idea that the computer is just a new tool that will allow us to do something faster than before. Word processors, spreadsheets, databases and even e-mail seem to be mere replacements for typewriters, calculators, filing cabinets and telephones. Everything seems to fall into the category of automation, which traditionally is defined as the replacement of human labor with machine labor.

If we view computers and cyberspace in this manner, we may miss many of the changes which increased use of computers will bring about in the nature of legal work. For example, viewing the new media as a set of powerful tools suggests that lawyers might handle more business but tells us little about whether there will be more business to be had. There may be faster links to clients but these links may not be as exclusive as firm-client links were previously. Lawyers at trial may be able to access data that may be located anywhere but little is revealed about how often there will be trials. We can see what skills are relevant to law practice today but do not learn whether the same skills used by the same people will be needed in the future.

While computers are a large market for lawyers because it is believed that they will increase efficiency and improve the money side of the "time equals money" equation, the increased use of computers should also be considered in terms of whether change is occurring in the degree of control lawyers have traditionally exercised over the various informational activities in which they are involved [ 9 ]. Loss of control over some informational activities or a significant change in the value of some activities may signify a change in opportunities available to lawyers. Consider, in this regard, the following illustrative examples of change that have links to computers and to cyberspace.

  1. A large machine--an electronic kiosk in Phoenix, Arizona, called "QuickCourt"--provides legal information, helps citizens fill out court documents, and prints out the appropriate court forms [ 10 ]. QuickCourt, which looks like a soda machine and has been called a "divorce machine,"[ 11 ] uses a touch-screen along with audio, video, and graphics to communicate with users.
  2. A recent study of the impact of electronic data banks on the German legal profession suggests that as electronic information services made legal information accessible to trained insurance clerks [ 12 ], there was increased employment competition between lawyers and insurance clerks. It was found that, "except for core legal fields with high need for special legal expertise, the use of legal data banks reduces lawyers' employment advantage over competing nonprofessional workers, such as insurance clerks."[ 13 ]
  3. Counsel Connect, as noted earlier, is an online service for lawyers. It has elements of a private club, such as membership fees, and it is exclusive in that only lawyers may belong [ 14 ]. It also resembles a conference center in that serious online discussions take place about various professional topics of interest to the members. One could also characterize it as being, in part, an ongoing professional seminar or a continuing legal education meeting in which one is educated by one's peers about some legal matter. Finally, it is a marketplace, where expertise can be described and decisions may be made about whether to hire a firm to provide legal representation.
    As an electronic information place, where interactions and links among people separated by distance can occur as if they were in the same place, Counsel Connect is more than a conference center, shopping center, or any other physical place in that it can, at the same time, be all of them. The primary focus in Counsel Connect is on fostering relationships between corporate counsel and law firm lawyers, but the technology makes possible various kinds of new linkages among the lawyers themselves. For example, some members of Counsel Connect may decide that they are lawyers sharing common facilities, in that they "see" and interact with each other almost daily, and they will build upon such a perception. Counsel Connect allows groups of attorneys to share information privately or publicly, has a "library" with briefs and memos, and provides access to the research skills of the Legal Research Network. Given these resources, there is no reason that a firm of lawyers could not be established with Counsel Connect or some other electronic network serving as the principal space of the firm or as the means for allowing the lawyers to collaborate in a productive manner.[ 15 ]
  4. The law firm of Baker and McKenzie closed its library and fired all of its law librarians on March 31, 1995. Administration of the library and many legal research activities are being out-sourced.[ 16 ]
  5. In a consent decree signed in June, 1995, the American Bar Association agreed to change its accrediting process in several ways: stop including faculty salary requirements as a condition of accreditation, allow accreditation of for-profit schools, allow schools to accept transfer credits from non-ABA accredited schools, include more practitioners and non-law faculty and deans on accreditation committees.[ 17 ]
  6. In large law firms, associates traditionally outnumber partners. They work many hours and the amount billed has generally increased firm profits and partner remuneration. Associates have been a profit center for law firms. In recent years, however, traditional staffing patterns and billing practices of large firms are being challenged.[ 18 ]

These examples suggest change beginning to occur across the spectrum of legal practice and training. New tools are gradually being used in new ways to satisfy new goals, rather than simply being employed in old ways to satisfy old goals. The new media do provide tools to accelerate informational tasks but, perhaps more importantly, they create new patterns of interaction. New technologies allow informational goals to be achieved quickly and can be the means for establishing new working relationships. They also, however, encourage change in who is in the marketplace of providing and using legal information and expertise, permit novel relationships among participants in the marketplace, and allow new clusters of information resources to emerge..

In 1967, a slide rule manufacturer, Keuffel & Esser Co., commissioned a study on what life would be like in a hundred years [ 19 ]. The study predicted various technological wonders but did not recognize that the slide rule would be replaced within five years by the electronic calculator. Lawyers are unlikely to find themselves, at any time soon, replaced by hand-held machines. Machines can, however, as a few of the examples indicate, provide links to information that used to be provided exclusively by lawyers, and allow access to legal information by persons and groups who previously did not have access. New media are disruptive of traditional patterns of interaction and traditional habits of thought and, while not replacing lawyers, will be a force for displacement.

The environment which is emerging as electronic tools are increasingly used is one that, when compared to the print environment, has a higher level of complexity and an accelerated pace of change. It also, as information transactions proliferate, will have a high level of conflict. Survival, therefore, requires that all levels of the profession adapt in a way that builds higher level capabilities for managing complexity and encourages more skillful methods for resolving disputes [ 20 ]. This is a challenge not only for those at the low end of the profession, where will-drafting and other software might provide some competition [ 21 ]. It is a challenge as well to elite firms, where staffing patterns assume a role and reflect a value for recent law school graduates. Perhaps the greatest challenge, over time, will be to the law schools themselves, whose graduates are informational products who will have to have new skills and a changed informational orientation.

Beyond tools: New cultures and paradigms

If cyberspace is simply a new tool, its impact will be largely limited to how lawyers work, and the ambivalence reflected in the dialogue at the beginning of this essay is understandable. If the new technologies are only about what lawyers do, it is indeed reasonable to ask questions about how well they do it after some investments in technology are made. But what if something more is going on? What if the computer is the kind of technology that touches not only what lawyers do but the environment in which lawyers do it? What if, as lawyers employ the new tools, they are also changed by them? What if lawyers not only move in new directions but lay people and other professionals are drawn to knowledge that had been part of the lawyer's professional world exclusively? What if, in other words, information moving at electronic speed in cyberspace begins not only to cross territorial borders more easily than before but to pierce some of the professional boundaries that separate lawyers from others? What if the whole market for legal services, which is an information-oriented market, is changed because the manner in which information is communicated, organized, and processed, changes? Indeed, what if the new technologies are not simply a new means for interacting in the marketplace but, ultimately, are a new marketplace?

If cyberspace is more than a new tool, it will not only have an impact on economic efficiency and what lawyers do but it will change underlying assumptions about who lawyers are. It will affect not only who has access to and works with “legal” information but will change how we think about such persons. Looked at in this way, it will not simply be a useful technology but something akin to a new culture, something which acts as a catalyst to using knowledge in new ways and to thinking about knowledge in new ways [ 22 ]. The future evolution of the profession, as a result, should be considered to involve not simply new behaviors but new behaviors plus new ways of thinking about those behaviors. We will, at a minimum, develop new sets of labels to apply to the various groups of new legal information workers that are currently being incubated.

Law practice is more than a set of activities. It is, in addition, a profession, a type of occupation that is subject to a broad array of expectations and policies about the use and delivery of legal information. While the meaning of profession and the lines distinguishing some occupations from other occupations are not always clear, some of the qualities characteristic of a profession include the following:[ 23 ]

  1. An organized body of knowledge - The professional possesses more than a skill. The "skills that characterize a profession flow from and are supported by a fund of knowledge that has been organized into an internally consistent system" [ 24 ]. Professions are concerned with developing theoretical support for their work. Training for professional work, therefore, typically involves formal academic schooling.
  2. Authority over client relationships - Professionals possess more control in client encounters than other occupations can exercise over customers. "Professional judgment" may not give the professional complete authority but it implies that clients are less able to evaluate their problems and possible solutions than might be the case in some other context.
  3. Control over admission standards - Professions accredit schools of training and also determine the requirements for admission to practice.
  4. Ethical codes of practice - In exchange for being granted independence and a monopoly over its work by the state, a profession is expected to promulgate standards of professional behavior and regulate abuses.
  5. Organization - Professions have associations that promote their identity. These are not simply lobbying organizations which endeavor to protect the interests of members. Professional organizations are also designed to influence the conduct, commitment and attitudes of members about the profession.[ 25 ]
  6. Public service orientation - Membership in the legal profession is presumed to involve "holding out to the public, the offer of public service....the dedication of the call to the bar....the moral duty not to refuse the client without cause or explanation." [ 26 ]

The illustrative examples I provided earlier of various changes in law practice and in how legal information is being used by citizens and lawyers, are interesting not because any one development will be responsible for a change in who will be able to practice law or in what it will mean to be a lawyer but because, taken together, they suggest where one might look to see the seeds of change. Each example reveals in some way that control of information is embedded in the labeling of a professional and that the new technologies weaken the boundaries that previously distanced professional from client and the profession from the public and from other professions.

Professions can be defined by the criteria listed above but all these criteria depend upon a recognition or consensus that there is a boundary line that can be perceived between the lawyer and others. In many instances, the boundary line is informational in nature. Control over a body of information, for example, is reflected in the assumption that academic training is required. It is explicit in prohibitions against the "unauthorized practice of law", and in ethical requirements, such as the maintenance of confidentiality. Setting informational boundaries is also implicit in rules about conflicts of interest, such as when, in a conversation between lawyer and potential client, a formal lawyer-client relationship is established, and in what such a relationship implies.

Groups do not automatically qualify for professional status by meeting some objective criteria. A profession is, in the words of one historian of the legal profession, "a subjective value-laden concept, not a precise analytical category" [ 27 ]. A group that aspires to be a profession and thus secure all the benefits that professional groups possess cannot present incontrovertible proof that it has satisfied the criteria listed above. At best, it can supply persuasive evidence that the conditions have been fulfilled. Many non-professionals undergo formal training, have specialized skills, are important to the public and may even have a base of theoretical knowledge. There are no scales to measure precisely how professional a type of work is or how close some occupation is to achieving professional status. As Erving Goffman has argued, "[l]icensing bodies require practitioners to absorb a mystical range and period of training, in part to maintain a monopoly, but in part to foster the impression that the licensed practitioner is someone who has been reconstituted by his learning experience and is set apart from other men." [ 28 ]

In the contest to acquire professional status, what becomes important is both the reality of whether certain criteria are met and the public perception of the occupational group and whether it possesses certain qualities. Groups aspiring to professional status need to believe that they meet certain criteria and need to persuade others of this. Communication is involved in various phases of this contest.

Much attention has been devoted by the legal profession to the image of lawyers and to ethical behavior within the profession. A recently released report by the New York State Bar, for example, begins with the observation that "[t]he late 1980's and early 1990's witnessed a conspicuous rise in public disparagement of lawyers and the judicial process" [ 29 ]. The report is highly concerned with public confidence in lawyers. Indeed, it mentions this issue thirteen times. The professional model is threatened, however, not simply by lack of confidence but by confidentiality, or, more specifically, by what confidentiality symbolizes in terms of control over information. The profession is being weakened less by how it is perceived from without or by changing levels of unethical behavior than by challenges at a deeper and more serious level. The new media challenge assumptions about exclusive informational relationships and about traditional patterns of organizing professional information and services.

The key issue for the legal profession is not whether lawyers are honest or even approved of but whether they are different and distinguishable from others whose use of information overlaps with that of the lawyer. An eminent legal scholar once asserted that "[t]he most important thing about the practice of law is that it is, and in the inherent nature of things demands always that it shall be, a profession" [ 30 ]. Perhaps, when this was written, any alternative to or modification of the professional status of lawyers was unthinkable. Very little is unthinkable today. Lawyers already have some skills that will be in demand in a highly active and volatile informational environment. Their experience has involved managing relationships, settling disputes, confronting complexity, and establishing standards, all needed skills in a digital world. What is required, in order to prosper from these skills, is to see cyberspace as a place where change is rapid and continuous, where relationships are quickly formed but of uncertain duration, and where, in general, time is accelerated and distance is compressed. Not all of this, however, is familiar territory. Nor is it likely to be exclusive territory.

Cyberspace will generate a demand for persons with legal skills but cyberspace will also cause new roles and new patterns of training to emerge [ 31 ], and will challenge much of the paper and print paradigm that has supported the profession. This may not signal the end of the profession but it does mark the beginning of new models and definitions of legal work.

* I appreciate the assistance of Lexis/Nexis and the West Publishing Company respectively, in providing me access to the Lexis/Nexis and Westlaw services.

Footnotes

  1. Ronald W. Staudt and Rosemarie Shiels, Chicago-Kent 1994 Large Firm Survey and Statistical Analysis (1995)[Staudt/Shiels Study]; American Bar Association Legal Technology Resource Center, "Survey of Automation in Smaller Law Firms" (1995) [ABA Study].
  2. Staudt/Shiels Study, p. 2.
  3. ABA Study, p. 2.
  4. ABA Study, p. 46.
  5. Staudt/Shiels Study, p. 171. See also Richard A. Matasar and Rosemary Shiels, "Electronic Law Students: Repercussions on Legal Education," 29 Valparaiso L. Rev. 909 (1995).
  6. ABA Study, p. 83.
  7. David P. Vandagriff, "Taking the Computer Cure," ABA J., December, 1993, p. 59.
  8. Wayne J. Lovett, "Large Firms Are Embracing Automation", National Law Journal, August 29, 1994, p. C3.
  9. Ethan Katsh, Law in a Digital World (New York: Oxford University Press, 1995).
  10. Peter Morrison, "Arizona Courts Introduce Automated Legal Help," The National Law Journal, August 9, 1993, p. 12.
  11. Ibid.
  12. Michael Hartmann, "Legal Data Banks, the Glut of Lawyers, and the German Legal Profession," 27 Law and Society Review 421 (1993).
  13. Ibid., p. 190.
  14. Counsel Connect's contract includes the following:
    I. GENERAL RULES REGARDING USE OF SYSTEM
    A. Authorized Users. In order to be an authorized user, an individual must be (I) a lawyer employed by a member law firm, (ii) a lawyer employed in the legal department of a member company and acting as counsel to that company, or (iii) a librarian or someone similarly situated who is employed by a member company or firm (who may access the system to monitor but not contribute to discussion groups other than those intended for non-lawyers), or (iv) a sponsored guest, approved by Counsel Connect, who has agreed to abide by all applicable rules. Sponsored guests include information providers and non-lawyers whose views and participation will, in the judgment of Counsel Connect, provide substantial value to members. Each member law firm or corporation agrees to provide a copy of the membership agreement and these rules to each authorized user and to monitor and require their strict compliance.
  15. David H. Maister, "What Makes a Firm?" The American Lawyer, December 1993, p. 32.
  16. Carol McHugh Sanders, "Law Librarians Plan Image Push in Wake of Firings," Chicago Daily Law Bulletin, April 21, 1995, p. 1.
  17. Ken Myers, "Settlement Will Mean Changes in ABA’s Accreditation Process," National Law Journal, July 10, 1995, p. A15.
  18. "Special Report: Lawyers vs. Paralegal: Who Does What?", Legal Times, May 22, 1995, p. S34; Steven Brill, "The New Leverage", The American Lawyer, July/August, 1993, p. 5.
  19. See Roz Liston, Business World: Futurist Says Tomorrow Will Be Unlike Today, UPI, Aug. 3, 1986; Staving Off Oblivion, Forbes, Sept. 4, 1978, at 94
  20. Experiments in online dispute resolution can be seen in the Onlline Ombuds Office andthe Virtual Magistrate Project
  21. Philip E. Ross, "Software As Career Threat", Forbes Magazine, May 22, 1995, p. 240.
  22. Elizabeth Eisenstein, The Printing Press as an Agent of Change (New York: Cambridge University Press, 1979); See also M. Ethan Katsh, The Electronic Media and the Transformation of Law (New York: Oxford University Press, 1989).
  23. Ernest Greenwood, "Attributes of a Profession," 2 Social Work (1957), pp. 44-57.
  24. Id. at 45.
  25. Eliot Freidson, Professional Powers (Chicago: University of Chicago Press, 1986), p. 26.
  26. Peter Wright, "What is a Profession," 29 Canadian Bar Review 748, 752 (1951).
  27. Wilfrid Prest, The Rise of the Barristers (Oxford: Oxford University Press, 1986), p. 2.
  28. Erving Goffman, The Presentation of Self in Everyday Life (Garden City: Doubleday, 1959), p. 46.
  29. New York State Bar Association Committee on the Profession and the Courts, Final Report to the Chief Judge, November, 1995, p. 1.
  30. Statement of John Wigmore, quoted in Roscoe Pound, The Lawyer From Antiquity to Modern Time (St. Paul: West Publishing Co., 1953), p. 353.
  31. See, for example, the role of the "cybernotary". Victoria Slind-Flor, "Moving in Cyberspace as Notaries", National Law Journal, December 18, 1995, p. 1.

About the Author

     Ethan Katsh is Professor of Legal Studies at the University of Massachusetts, Amherst, where he has served as the Chair of the Department of Legal Studies. He is a graduate of the Yale Law School and the author of books and articles about law and the new technologies. These include: Law in a Digital World (Oxford University Press, 1995) and The Electronic Media and the Transformation of Law (Oxford University Press, 1989). He is the moderator of Internet listservs concerning legal studies and alternative dispute resolution. He has also created the World Wide Web based University of Massachusetts Internet Law Hypercourse and, in October, 1995, moderated CourtTV's first online law course.