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ShawnFettyFirstPaper 18 - 08 Feb 2012 - Main.ShawnFetty
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1/29 UNDER REVISION. More to come as I continue to recast the problem. | | |
II.Legal practice has several characteristics that confound Web-based collaboration. | |
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< | 1) The legal duties commensurate with the lawyer-client relationship prevent lawyers from taking full advantage of the Web. | >
> | 1) The legal duties accompanying the lawyer-client relationship prevent lawyers from taking full advantage of the Web. | | | a. Lawyers have a sacrosanct duty to protect their clients’ confidences
Dispersed actors cannot effectively collaborate without sharing and transparency. Free software has flourished under this model. For a lawyer and his client, however, openness sunders the important protection afforded by attorney-client privilege. Privilege is all or nothing; once waived in any context, the protection is gone. Legal aid that waives privilege denudes an already vulnerable client, and moreover discourages outside lawyers and organizations from contributing, lest they too find that they have waived privilege. People rationally concerned with legal strategy will avoid this risk.
Thus, in a legal context, sharing must be carefully controlled. The trade-off is that measures which preserve privilege tend to defeat the purpose of Web-based collaboration. Such measures necessarily involve screening off the public: the very resource we hope to tap. The call for basic justice rings clear throughout the Web, but significant obstacles to participation will keep anyone from answering it. Web-based, collaborative lawyering therefore treads a fine line between being too-closed-to-benefit and too-open-to-survive.
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< | b. Lawyers can’t easily divest full responsibility for their clients | >
> | b. Lawyers cannot easily divest full responsibility for their clients | | | | |
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< | As a matter of both law and professional ethics, once the lawyer-client relationship is formed, the lawyer must properly tend to the clients’ legal rights. Furthermore, this responsibility can only be passed on or extinguished if the lawyer provides, depending on the circumstances, substantial justification. This, coupled with the threats of malpractice lawsuits and professional reprimand, helps secure the lawyer’s responsible representation and responsiveness. Ultimately, someone has to appear in court, and that person’s reputation and license are on the line. | >
> | As a matter of both law and professional ethics, once the lawyer-client relationship is formed, the lawyer must properly tend to the client’s legal rights. Furthermore, this responsibility can only be passed on or extinguished if the lawyer provides, depending on the circumstances, substantial justification. This, coupled with the threats of malpractice lawsuits and professional reprimand, helps secure the lawyer’s responsible representation and responsiveness. Ultimately, someone has to appear in court, and that person’s reputation and license are on the line. | | | | |
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< | First, it curbs the ambition of lawyers who would use the Web to work justice. They can never take on a large project in the hopes that the Internet will pick up the slack. If the matter is too big for them to resolve on their own and open-sourcing fails them by operating too slowly or not at all, they will be disciplined. This is an ill-borne loss, and no one will risk it. | >
> | This unbalances risk bearing among collaborating lawyers. Primary counsel shares details of his practice and client’s situation with outside collaborators. He takes substantial risks just to start this process, yet he continues to shoulder all of the consequences. Moreover, as the Web erodes barriers between legal markets, potential collaborators are increasingly also competitors. This creates a rational concern that collaborators could poach primary counsel’s clients. An unworkable conflict of interest may not necessarily erupt, but the stage is set.
Given the worst case scenario, few will find that the advantages of collaboration outweigh the risks. | | | | |
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< | Second, it means important details will always be refracted through the lens of a faraway mind. If you believe (as many do) that facts make law, then you will want to see the facts yourself before making suggestions. If you want to contribute to open-source software, the machine you want to fix is there on the table in front of you. With open-source lawyering, your repairs are aimed at a schematic that is someone else's best guess as to what the machine looks like. | | | 2) Law proceeds on a definite timeline that is often externally imposed.
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