1/29 UNDER REVISION. More to come as I continue to recast the problem.

Lawyers don't use the Web

-- By ShawnFetty - 19 Oct 2011

I. Introduction

Lawyering has not joined the wide range of activities fundamentally transformed by the Web. At its peak, a lawyer’s trade is justice and good judgment, but the job ultimately consists of client advocacy, counseling, and relationship structuring. While many lawyers use the Web for advertising and research, few lawyers use it in a way that significantly affects these basic functions.

The Web is first and foremost a means of connecting people. In our case, this means connecting clients to lawyers and also connecting lawyers to people who can enhance their practice, be they other, similarly situated lawyers or specialists of another kind entirely. If lawyers were able to effectively harness the Web to create broader networks of legal services, we imagine they might streamline the manufacture of legal work-product, offering the pursuit of justice where there is none—or at least cheaper legal services. Legal representation would evolve as lawyers explored opportunities to meet, confer, and collaborate with colleagues regardless of distance.

Lawyers need not distribute their workload through the Web (as a software developer might do) for this to be the case. Even if we assume that the individual client requires a local lawyer’s particularized care, the Web is useful for lawyers because it provides a rich environment for the exchange and evolution of ideas. Moreover, good judgment is informed by experience: an asset that is excellently shared through the Web. Thus, there is good reason to assume that the Web will help lawyers both learn and collaborate.

Notwithstanding the possibilities, however, attempts to integrate the Web into legal practice to-date have been mostly unsuccessful. Why?

II.Legal practice has several characteristics that confound Web-based collaboration.

1) The legal duties commensurate with 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.

b. Lawyers can’t easily divest full responsibility for their clients

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.

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.

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.

Open-source software may develop efficiently, but it may develop inefficiently or be spontaneously dropped. Indeed, flexibility is a key advantage. In law, missed deadlines terminate substantive rights and rankle presiding judges. Either is devastating.

3) Lawyers cannot share their fees.

III. Conclusion

If lawyers haven’t adopted the Web, we should understand why they haven’t because the Web is the only currently foreseeable cure to one of society’s most insidious disorders: unequal access to justice. The claim that lawyers are generally slow at adopting technology is suspect, and, in any case, unsatisfactory handwaving. Precisely understanding what prevents lawyers from collaborating through the Web is critical to elevating the practice of law as a whole.

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