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"Virtual Reality: A Brave New World For A Tradition-Based Profession" by Benjamin Pomerance

Virtual Reality: A Brave New World For A Tradition-Based Profession

by Benjamin Pomerance

Joseph Kashi is scared of Facebook.

LinkedIn, MySpace, and the rest of the social networking pantheon do not thrill him too much, either.

And the Alaska-based attorney, a man who once operated his own computer store and has written extensively on the need for lawyers to utilize changing modern technologies, does not intend to change his opinion any time soon.

"I won't do it because of the security issues," Kashi said in a telephone interview from his office. "I want control at a higher level over who is reading my personal information. For a profession that is supposed to be very scrupulous in maintaining confidentiality, I think that Facebook and LinkedIn and all the rest are pretty damn dangerous."

Social Networking Sites: Friend, Foe, or Both?

Yet Kashi's views on social networking sites may have made him a minority in his own profession, one which seems to be becoming more and more technologically driven. More than half of America's attorneys currently maintain a presence on at least one social networking site, according to the recently released 2010 American Bar Association Legal Technology Survey Report. Data from this report states that only two years ago, a mere 15 percent of U.S. attorneys used websites such as Facebook, MySpace, and LinkedIn, a statistic that swelled to 43 percent in 2009 and rose again to 56 percent in the current year.

For Catherine Sanders Reach, director of the American Bar Association's (ABA's) Legal Technology Resource Center, the dramatic increase comes as no surprise. "It mirrors what is happening in business and among consumers," she explained in an email response. "Many lawyers have dipped in a toe for completely personal reasons, such as keeping an eye on their children or keeping up with old friends. Others have joined on a professional level, creating profiles to communicate with colleagues and attract future clients."

New York State Bar Association Immediate Past President Stephen Younger considers himself in the mix on both counts. As the first "Facebook President" of the New York State Bar Association (NYSBA), Younger said the social networking site allowed him to better connect with NYSBA's growing membership ranks of young lawyers. Frequently, he said, he used his NYSBA President Fan Page to post updates, detail his travels on behalf of the state bar, and send information instantly to a wide association of "friends" among the state's legal community.

"Participation in social networks is becoming an expected part of professional life," Younger stated in an email response. "Attorneys need to be particularly careful of how they chose to participate, but opting out really isn't an option anymore."

Still, Younger was quick to add that using social networking media in the legal profession comes with a chasm of caveats. "These tools are still so new that the impact of using these sites is not yet fully understood," he said. "The rules governing how lawyers should use them have not been settled."

Amid this instability, Younger continued, potential pitfalls loom large. Misuse of social networking communications could breach client confidentiality obligations. Informal guidance provided over these sites could lead to a claim that an attorney-client relationship has developed, resulting in the attorney's disqualification from representing a client adverse to the person to whom the attorney provided the "casual advice." The lack of boundary constraints in social networking and blogging could lead to unintended problems of practicing in jurisdictions outside states where the lawyer in question is licensed to practice.

Legal organizations are seeking resolutions for these dilemmas, Younger said, but the state of rules on technology issues remains in flux. New York State is no exception, as seen this autumn when both NYSBA and the New York City Bar Association issued guidelines regarding the appropriateness of "friending" opposing parties on Facebook. The New York City Bar Association says that this practice is acceptable as long as the attorney openly is listed as a lawyer and makes his or her intentions clear. NYSBA's guidelines, on the other hand, state that such an act is not justifiable under any circumstances.

"This example clearly shows that there is no consistency from state to state and organization to organization," Younger said. Such ethical issues, he added, will need to be resolved as attorneys become increasingly reliant on social networking as a means for connecting with other attorneys and attracting new clients. "Before starting out using any of the social networking tools,' he warned, "lawyers should always review their firm's polices and understand the parameters within which they may participate, particularly if they are using these tools in a professional capacity."

The other glaring question regarding social networking in the legal profession deals with the reasons why attorneys suddenly seem so anxious to utilize them. Doubts naturally arise as to whether these websites truly are high-quality tools that are beneficial to the workplace or whether they are just another excuse for some attorneys to bring their personal lives into the office. "What is important is that lawyers remember that they are lawyers 24/7/365, and it is nearly impossible to separate personal from professional life in social media," Sanders Reach warned. "Each network has a different culture and purpose. I think a lawyer should understand what his or her goals are in engaging in a social network, and how he or she plans to go about it, before taking the leap to actually use it."

For many attorneys, Sanders Reach said, LinkedIn is the site of choice, primarily because of its "business-first" networking focus. Other Web resources, such as Legal OnRamp, are even more narrowly tailored to the legal profession, giving practitioners a comfort level they might not find in the broader network of one of the more "mainstream" social networking sites.

Still, the statistics indicate that many attorneys might not purely have business in mind when utilizing the Internet's social networking resources. In the ABA survey, professional networking was listed as the primary reason why legal professionals use social media, with 76 percent of respondents listing this as their primary reason for joining social networking sites. In second place, however, was "socializing," at 62 percent. Client development was a distant third at 42 percent. As for client recruitment, this purpose still seems rather far down the list. Only 10 percent of all respondents to the survey said they had ever secured a client for their law practice by connections made on a social networking website.

Portability And The Around-The-Clock Workplace: Benefits And Drawbacks Of Never Leaving Your Legal Job Behind

Beyond the ethical dilemmas that have come with the heightened use of social networking, more personal issues have cropped up with the influx of new technology into legal careers across the country. In particular, improvements in technology now allow legal professionals to take the office home with them, Younger said, turning law into an around-the-clock job with no escape. Heightened stress and eroded family relationships could result if "turning off the office" becomes impossible.

On the other hand, as Younger pointed out, technological developments seem to allow legal professionals more freedom than ever before. "Portability, as exemplified by the Blackberry and the Palm devices, have allowed practitioners to become untethered from their desks," Younger said. "They are able to leave their offices and go home at a reasonable hour knowing they can still be available. They are able to take vacations without the fear of missing an important communication or event because they are out of town."

Equally as important, Younger added, are the benefits portable devices provide for clients. By using these devices, attorneys are able to stay in touch with their clients better than ever before, Younger said, strengthening the attorney-client relationship. "Lawyers today are far more responsive to their clients and are able to deliver advice to them on a real-time basis," he said. "In the past, a lawyer would have to cancel their personal plans at the last minute because of client issues. Today, they can handle most issues remotely (away from the office) with little difficulty, and thus have greater flexibility to manage their personal lives."

In addition to these benefits, Kashi praised the ability to conduct discovery virtually rather than in person. Sending discovery demands via email, he adds, leaves behind a "nice paper trail" that can prove useful later in litigation. Still, Kashi said, appearing in-person sometimes is necessary to the case. As an example, he mentioned a recent he took from a surgeon, a man whom he had never met before. "Even though I only questioned him for about 10 minutes, it was much more effective in this case for me to appear in person," Kashi explained. "I had never personally met this doctor before, and we needed to size each other up, and it was very helpful to see minute body language that indicated that the surgeon was becoming irritated with the opposing attorney. In other similar depositions, I have appeared telephonically to good effect. Basically, whether you choose virtual electronic communication or an in-person appearance depends upon the specific situation, balancing effectiveness, efficiency, and human factors."

The favored method of portable technology used by legal professionals appears to be "smart phones," devices that do far more than just allow for incoming and outgoing calls. Results from the ABA's survey state that 76 percent of respondents use smart phones at work, up from 64 percent responding affirmatively to that question in 2009. Additionally, 71 percent of respondents said they use smart phones in the courtroom, up from 60 percent in 2009. And while some might wonder whether attorneys are being disrespectful when using their phones in such a setting, it appears that most lawyers will explain that they are just trying to do their jobs.

"The top uses of a smart phone in the courtroom include sending and receiving email, calendaring, and accessing the Internet," Sanders Reach said. "In addition, there are loads of legal apps (smart phone applications), including many legal research-oriented apps as well as apps for calculating court dates, interacting with court transcriptions, and diction-to-voice recognition software. As technology gets cheaper, Internet access gets faster, and computing power increases, lawyers may even find themselves running presentations from their phones."

But not in some courtrooms. Certain judges, fed up with attorneys pulling out their phones in the middle of litigation, have banned the high-tech devices from their courts. Other judges have strictly limited their use. Sanders Reach, however, does not believe that a total courtroom ban on smart phones is the best solution. "A smart lawyer will figure out how to use this portable technology as an effective tool in the courtroom, not a distraction," she said.

Into The Clouds: Cloud Computing, Virtual Law Firms, and What The Future May Hold

Many observers believe the profession is about to become even more portable through cloud computing, the practice of using the Internet as a platform for all the tasks performed on your computer. This would enable attorneys to easily access their data from any place, at any time, and through practically any type of device, as long as an Internet connection is present.

Kashi, whose paper discussing cloud computing was published nationally in 2010, is one of the believers. On the phone, he repeatedly emphasized his feelings that this method could greatly improve attorney efficiency and effectiveness. Yet Kashi warned that complete reliance on cloud computing could also prove disastrous. If everything were saved solely through the Internet, he explained, and the individual using it lost Internet access for a significant period of time, the user would be left helpless. "We should certainly use the Internet when it is convenient and helpful to us," Kashi said. "But dealing in only one delivery mechanism is always dangerous. You need to be resilient, and the best way to do that is always to back up all your data so you can ride out the storm."

In recent years, some lawyers have even taken portability a step further by creating "virtual law firms" run entirely through the Internet. Fourteen percent of respondents to the ABA survey claimed to belong to a virtual firm, a number Kashi said will increase in upcoming years.

"For certain areas, that model works great," Kashi said, listing tax law, immigration law, and intellectual property law as specializations that lend themselves well to a completely online practice. "You'd want to be in some sort of federal document-based area of law if you want to go completely virtual. It's not going to work so well in an area where you need a lot of hand-holding, such as divorce law. But even there, you could make a case for certain elements that could go on the Web."

Among the larger virtual law firms today is the business and transactional law giant Virtual Law Partners LLP, founded in 2008 by Silicon Valley entrepreneur Craig Johnson. With many lawyers but no physical office space, the firm touts its ability to save money by not paying typical law firm costs for offices, associates, and specialized paralegals. All the attorneys are partners, with each lawyer bringing his or her own clients to the online firm. Communications are almost exclusively handled virtually. And while the firm charges lower rates than other business law firms of comparable caliber, the profit margins alleged by Johnson are remarkably high -- approximately 85 percent of the amount each attorney bills his or her clients.

However, going completely virtual will not feel comfortable to most attorneys today, Kashi said. Nor does it have to. Simply experimenting with basic new technologies to find what fits best for the work of their practice, he said, is enough.

"Fact-finding is crucial to a lawyer's success," Kashi said. "If more lawyers would sit down with a fact-finding attitude toward technology, they would be able to overcome mental blocks and discover how to best use these tools within the ethical parameters of our profession."

This fact-finding, Kashi said, should begin in law school, preferably through school-sponsored office-management courses. Such courses, he explained, would heighten student awareness of uses and ethical issues surrounding various modern technologies, making these students more marketable when seeking employment.

Younger agreed with this assessment. "The lawyers who are able to harness the game-changing technology of the future will be the most successful in the legal marketplace," he said.

Yet precisely what that future will bring, Sanders Reach said, is anyone's guess.

"It is all about providing excellent service to the client," Sanders Reach said. "Technology should help that goal and not be an end unto itself. Where exactly the legal profession's efforts to better serve that goal will take us, though, still remains to be seen."

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This page contains a single entry from the blog posted on June 1, 2011 9:26 PM.

The previous post in this blog was "Viacom International Inc. v. YouTube, Inc.: The Adventure So Far, and What May Be Yet To Come" by Joseph Gregory.

The next post in this blog is "Debriefing The Cornell 2011 Energy Conference: 'Gas Drilling, Sustainability & Energy Policy: Searching for Common Ground'" by Ben Tettlebaum and Alexis Saba.

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