Since I started practicing law almost 18 years ago, I've always felt that lawyers were consistently behind the rest of the business world technologically. Still, the Internet and computers are now dramatically changing the practice of law. Lawyers who are slow to adopt these technologies are rapidly finding themselves at a competitive disadvantage. The slow adoption of Internet e-mail is a good example.
When I was still at Georgetown Law and landed my first law clerk position, we were using old IBM Selectrics typewriters when the rest of the business world had Selectrics with memory. When I starting practicing, lawyers used the Selectrics with memory, but the rest of the business world already had rudimentary word processors.
Finally, lawyers got the word processors, but then got stuck in DOS when businesses moved to Windows. Now that the profession has largely moved to Windows, it's only now beginning to use Internet e-mail.
I use e-mail for probably about 95% of my written communications with my clients, but few lawyers do that. When I write to other lawyers, I find that most still prefer a fax. They may have e-mail, but they're not particularly comfortable with it. If you send them an attached file, you'd better expect to become their tech support.
Now, I'm finally beginning to see law firms trying to become technologically cutting edge. They see technology as a potential competitive advantage.
Clients are starting to demand e-mail communication. In many cases today, a lawyer who can't give her potential client an e-mail address may lose the potential client.
E-Mail and Confidentiality
When you send an e-mail over the Internet, the e-mail will typically travel through many computers on its way to its destination. The Internet isn't a secure network and the e-mail can be intercepted and read. Bear in mind that I've never heard anyone suggest that we have an epidemic of improperly intercepted e-mail, but still lawyers will point out that it can be done.
This creates problems for lawyers because we're required not to reveal information relating to the representation of a client unless the client consents after consultation. Implicit in this requirement is that it's a lawyer's responsibility to prevent the inadvertent exposure of client information.
Many lawyers have been concerned that because an e-mail can be intercepted and read, they might be breaching their responsibility to maintain client secrets if they sent confidential information via e-mail. My reaction-lawyers think too hard. As a profession, we spend too much time on useless mental solitaire.
Yes, it's true that e-mail can be improperly intercepted. Then again, you can improperly intercept a telephone call too. What both interceptions have in common is that they're illegal.
A letter sent first class mail or via messenger in a paper envelope isn't exactly a paragon of security. The last time I did a laboratory analysis, the paper in the typical envelope was just a bit weaker than a bank vault. Still, I've never heard of anyone expressing any concern about letters sent by messenger or telephone calls. After all, they're old and traditional, while e-mail is new. Lawyers love old and traditional. It's comfortable, like old walking shoes.
If first-class mail were new, I could just imagine the law journals filled with drivel about the relative merits of the various glues used to seal the envelopes. I can see the pages filled with analysis of the ability to steam open envelopes. Lawyers would probably come up with rules requiring "tamper-apparent" envelopes.
Lawyers will debate the merits of e-mail while routinely disposing of sensitive documents using procedures that are something short of those used by our embassy in Moscow. I guess the possibility of a dumpster diver is a bit less interesting than a hacker snatching an e-mail right out of cyberspace. The reality is that few lawyers routinely shred documents. Yet, that creates little controversy.
I think it all comes back to lawyers are leery when it comes to new technology. It's clearly a generational thing though and things will improve with the next generation of younger lawyers. Still, for many lawyers, using new technology means asking a secretary to send a fax or change one word in a document because they have no idea how to use the word processor.
What's amazing is that lawyers are missing the ball when what they sell is "information" and "information" is what the Net does best. What I mean by that is that if you sell goods over the Net, you still have to ship them using some traditional method. This will always be the case until Scotty can figure out a way to send you a new t-shirt through a modem.
With "information," the entire business transaction can take place over the Net. Whether it's a videoconference instead of a meeting, an e-mail instead of an overnight package, or a website instead of a firm brochure, lawyers deal with information.
Encryption The truly sad part of all this controversy about e-mail is that a nearly perfect solution exists-even for the paranoid. The software that's commercially available today for encryption is superb. This software makes it easy to take an e-mail and turn it into indecipherable gibberish that only the intended recipient can read by entering a secret password or key.
If a lawyer encrypts an e-mail, it's more secure than a letter in that paper envelope. Even if somebody improperly intercepted it, they can't read it. The problem is that people don't like to use encryption because it requires an extra step-more keystrokes-when sending and receiving e-mail.
Finally, we're beginning to see some new common sense rules that should make lawyers feel more secure with e-mail. For example, in 1998, New York changed its rules to clarify that an otherwise privileged communication doesn't lose its privileged character merely because it was transmitted electronically.
This is a step in the right direction. Now, having said that and obviously being an advocate for e-mail, I would be remiss not to mention that sometimes you do need to be cautious.
There are communications that are so sensitive that unencrypted e-mail as well as other modes of communication aren't secure enough. With this type of information, cell phones, home phones that are wireless and maybe a discussion in a restaurant, aren't safe enough. This is a judgment call guided by common sense and experience.
Probably the most secure type of communication is an e-mail encrypted using state of the art encryption software like Pretty Good Privacy. It's better than a first class letter or overnight package. For all practical purposes, it's as secure as you'll ever need.
Now, the next step is convincing lawyers that e-mail is a good thing and that's it's safe enough for routine communication. As for the highly sensitive communications, just encrypt them.
Other New Technology
It's not just e-mail that's changing the technology of law. It's also things like websites, which impact lawyer promotion and research, and digital filing requirements with courts. It won't be too long before every court requires that lawyers file documents digitally. The reduction in costs for overburdened court clerks will eventually mandate this change.
The examples can go on, but the point is that technology will inevitably change the way we practice law. He who ignores this and refuses to jump on board does so at their own peril. I think that they're going to find themselves left behind.