A Note of Virtual Caution

By Edward Poll
Reprinted from Law Practice Today in its September 2005 edition

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Computers will never replace lawyers; they have, in fact, made our jobs much easier. The time savings, efficiency and commoditization of routine tasks and services afforded by computers and other electronic technology have freed the great majority of lawyers to focus on the creative, problem-solving aspects of their law practice. However, it can be a useful note of caution to revisit the old definition of a cynic and remember that the price – or rather, the cost – of technology can in many ways offset its value. Unless we're aware of what technology can consume from what Abraham Lincoln called our stock in trade as lawyers – our time and advice – we will not be able to fully exploit what it can add. I think the following points are worth remembering as the brave new world of law firm technology advances.

The virtual office has limits

The idea of telecommuting seems increasingly attractive to lawyers. The usual perceptions of whether this is a good idea revolve around firm policy and client reactions. But other points are equally important:

• Lawyers are not entitled to work from home when a physical office space is available. If office space is no longer used for at least 20 percent of the time, someone else must either use the space while the telecommuting attorney is absent or the firm will eat the expense and thus incur a greater cost for off-site operations.
• Your absence makes the firm culture suffer. Camaraderie, the personal exchange of ideas and guidance from one lawyer to another, are vital to a successful law firm practice.
• Your presence gives you business judgment. As a former law firm partner and COO, I can walk the floor of an unfamiliar firm and get a sense of whether they're making money or not, whether they're serving the client well or not, even if I don't know a thing about their practice. That comes from years of working in a physical setting, not a virtual one.

E-mails can be expensive

A number of years ago when I was managing a law office, a partner complained to me about the speed with which people wanted a response to a fax. If he didn't get back to them within 20 minutes, they called to ask if he received the fax and, if so, why he didn't respond. Today, with e-mail, colleagues and clients seem to expect that response within 20 seconds.

Given the rapidity of response that e-mails encourage, it's my belief that very few lawyers are truly capturing the time that they're spending on a legitimate client matter. Like phone conversations, communication by e-mail on client matters represent billable time. Yet lawyers are going so fast, doing so many things, that they don't actually write down their time notation as they're working on e-mails. And if they don't do it then, by the end of the day, let alone the end of the week, they're going to forget how much tine was needed. Client e-mails get so enmeshed in what has been called "administrivia" that their importance is not adequately accounted for. The result is lost profitability.

E-mails also involve other costs that are not readily apparent:

• Based on my own experience, I would guess that most lawyers take about one to two hours each workday to "clear out" their e-mail boxes apart from getting to client matters. If we assume 200 workdays per year (there are more), and two hours per day and $200 per hour billable value for an attorney (most are charging more today), the calculation is $80,000 of wasted billable time annually. It goes without saying that this is hugely expensive.
• Inappropriate e-mail can jeopardize both attorney-client privilege and work product privilege. And even if those are not waived, the lawyer and the client are put at risk by having to defend a challenge. Consider the proliferation of disclaimers in law firm e-mails citing IRS Circular 230 (to the effect that any tax advice in the e-mail cannot be used to avoid IRS penalties), even when the e-mail has nothing to do about taxation.
• Blogs don't replace real marketing

I'm a dedicated blogger and know that using a web log can be a powerful marketing tool. When done right by lawyers, a blog is more than a personal journal but not as formal as an electronic brochure. Blogs are creating a unique niche by combining personalized observation with facts and insights from the lawyer's area of focus. However, you have to make blogs work for you – "if you write it, they will come" is not how the process works. You must target your market, be specific in your blog postings, and be frequent in your posts. And you must follow up on your blogging, both by responding to inquiries and incorporating your posted material into articles, speeches, client updates, and so on. Your market needs to learn over time what your value to them can be and why they need you and your services. Blogs, like all other marketing tools, must be considered in light of your entire marketing strategy, not isolated by them.

Knowledge management and billable time conflict

I believe knowledge management will be the future issue that separates the successful law firm from the marginal (and soon to be extinct) one. Clients no longer want their lawyer to reinvent the wheel. Once you've done the research, or created the template, the client doesn't want to pay for others in the firm to re-create it. The old concept of shared knowledge management was to look in your file cabinet and pull out the paperwork of your last deal or pleading. Electronic knowledge management makes the information available faster and more completely. But the process only works when the information is classified and categorized consistently and frequently. Many lawyers believe that this is not billable time, particularly after a transaction or case is completed, and so they either do not do it or do it incompletely. No matter how sophisticated the database, knowledge management only works when all knowledge is shared in a way that all lawyers can access it. Failure to invest the time need to update the knowledge management database weakens it; and holdouts diminish the value for colleagues and clients alike.

Gadgets can be dangerous

Today's lawyers often seem inseparable from their Blackberry™ and cell phone. Most of us have been in meetings where attorneys are sitting there with Blackberries in hand, and their thumbs are moving while they're participating in the conversation. I'm convinced that such multi-tasking means they are either reacting too quickly to their e-mail, or they are missing something important in the live dialogue as it is going on. Plus, as I noted in an earlier column, recent court decisions indicate that cell phone users and their firms face potential legal liability when an attorney making a cell phone business call while driving has an accident. The use of cell phones, Blackberries and other mobile technology should be assessed to take advantage of their benefits while not exposing law firms to damages and concomitant loss of reputation.

Technology is a tool

Technology is a tremendous tool, but it needs to be managed just as any other communication modality must. There are many who passionately believe in the power of technology to transform our profession, but we should all remember that virtually all of the innovations that have meant so much for us are just another turn of the wheel in the law's evolution from profession to business. Five years from now technology will have brought even more change to our practices. Exercising proper perspective and judgment will make that change a positive one.