Is cyberspace lawyer-friendly?
Lawyer No. 2: "I'm not even sure it is a good tool. We've also invested a lot of money in machines. So what happens? A lawyer in the firm wants to work at home during the week. Says he doesn't need to come to the office, as long as the e-mail system works."
Lawyer No. 1: "And now there's this cyberspace. One of our lawyers thinks we need something called a World Wide Web ,home page.' Doesn't sound all that different from the Yellow Pages to me. He says there are millions of potential clients out there, wherever ,there, is. I'd feel better if I saw even one person walk out of the computer screen and ask us to represent them."
Lawyer No. 2: "I heard that a lawyer--not in my firm, thank God--thought that 45 minutes of `surfing the net,' whatever that is, could be billed to a client as a research expense."
To some lawyers, cyberspace is already as enticing, useful, and familiar a place as the library or conference room down the hall. To a few lawyers, cyberspace may actually replace those facilities. But for most lawyers, cyberspace is about as relevant as outer space to their professional lives and about as understandable as what is taking place in outer space.
For these lawyers, the concerns and anxieties experienced when they turn on a computer are magnified by even the thought of using a computer to communicate with distant machines.
The word "cyberspace" was coined in 1984 by science-fiction writer William Gibson, who wrote,
Cyberspace. A consensual hallucination
experienced daily by billions of
legitimate operators, in every nation.
. . . A graphic representation of data
abstracted from the banks of every
computer in the human system. Unthinkable
complexity. Lines of light
ranged in the nonspace of the mind
clusters and constellations of data. Like
city lights, receding....(1)
A recent computer search revealed that the New York Times first used the term "cyberspace" in 1989, and that year used it in only one story. Four years later, in 1993, the term appeared in 42 stories in the Times. More recently, cyberspace has become an almost daily feature in the Times, appearing during the first six months of 1995, on average, more than once each day.
As yet there is no universally agreed upon definition of cyberspace. We do know its basic building blocks are computers electronically linked into networks through which data can be exchanged at lightning-fast speed. Cyberspace is where this occurs. More useful than a definition, however, is the significance of cyberspace to the legal profession.
What computer networks do is allow you to use a computer instead of a car, plane, or some other mode of transportation, to get to sources of information and engage in some informational activity. You need no longer go somewhere or have someone come to you to obtain or exchange information. For example, you can employ online databases or library catalogs in lieu of going to a library. E-mail or groupware programs may substitute for face-to-face meetings. E-cash or e-banking may substitute for doing business in a bank. Reading World Wide Web home pages may substitute for visiting whatever entity has set up the home page.
It may seem an exaggeration to suggest, as one writer has, that we can now "wander the earth and not leave home."(2) What is true is that we can electronically interact with people and places in ways that previously required the presence of a person or hand-delivery of a document. A virtual visit will not be the same as a physical visit and an online database is not the same as a library,(3) but electronic connections may be a satisfactory substitute depending on one's needs.
It is, of course, true that we have always had options for obtaining information at a distance. Rumor, gossip, and "word of mouth" have always been with us. Telephones allow us to interact with people anywhere, and print and broadcasting certainly deliver messages to people who are distant from the source. Computer networks, however, make immediately accessible and easily usable information stored in connected computers and in the minds of people linked to these computers. For example, ATLA NET, ATLA's online service, makes it possible for association members to exchange information and participate in online discussions on legal issues with other members in this country and around the world.
It may not be true, as Bill Gates has remarked, that "in the future, everything will be digital."(4) Increasing amounts of material and more varied kinds of material, however, are available in electronic form. In general, computer networks allow two-way and group communication and exchanges at speeds that have no precedent. For those who have already experienced cyberspace, it is clear that the ability to interact at a distance via electronic means with people and informational sources is quite novel.
Most important, these networks have a flexibility beyond other forms of communication. Some uses of the network will seem mere adjuncts of telephones, newspapers and magazines, or television. Some uses will be quite new.
Online with Internet
The Internet is a collection of networks that shares a common communications protocol. As the principal component of today's version of cyberspace, it has been growing exponentially. Current estimates suggest that 30 million to 40 million people worldwide have access to the Internet and that their numbers are increasing at about 10 percent per month. The number of computers connected to the Internet, a somewhat different measure of Internet use, has almost doubled each year since 1989.(5)
More than 1,700 subscribers participate in the "net-lawyers" forum on Internet, and several hundred firms and law schools already have home pages on the World Wide Web. LEXIS Counsel Connect, which began operation in early 1994, has over 24,000 subscribers. Thousands of others participate in Law Journal EXTRA!, an online service for lawyers that began in late 1994, and a large number are expected to subscribe to the West Legal Network, from the West Publishing Co., which was scheduled to begin operating in late 1995. ATLA NET, which I mentioned earlier, and which is part of Law Journal EXTRA!, was introduced in July 1995.
Law-oriented discussions are also popular on all the commercial online services, such as Compuserve and America Online.
In spite of these extraordinarily impressive statistics, one who looks at the numbers closely can still conclude that most lawyers probably are more familiar with the E.B. White children's book Charlotte's Web than with the World Wide Web. If, at present, cyberspace seems to you as remote and alien as outer space, you are not alone. Most lawyers are as dependent on faxes and "snail mail" as you are. The contingent of lawyers in cyberspace is notable and growing rapidly, but it still does not represent a high percentage of all lawyers.
If the Internet is not yet exactly on practitioners, desktops, it probably is on their minds. A recent American Bar Association study of sole practitioners and small law firms indicated that 21 percent of respondents used the Internet in early 1995 and that 45 percent intend to use it in the next 12 months.(6)
In a separate study of the 500 largest U.S. law firms, about 58 percent had Internet access in late 1994.(7) It is quite possible that the number of new Internet users this year will equal all who connected in the past seven years. If your firm connects soon, you will not be in the forefront of the electronic legal world, but you will not be hopelessly behind either.
What does all this mean for a lawyer who does not have a high-tech practice or high-tech clients? The answer to this question depends on whether you believe that cyberspace is merely a new tool or a more powerful force that has the potential to alter the practice of law as we know it.
The most common attitude of computer users is that the computer is simply a tool; cyberspace, just one more electronic tool. The tool perspective, which is embodied in the advertisements for hardware and software that fill the pages of most professional journals, suggests that those who invest in new technology and use it properly will become more efficient at what they do and gain a competitive advantage. Most software reinforces the idea that computers, like word processors, spreadsheets, tax software, and voice mail, are merely replacements for typewriters, calculators, and clerks and accountants. New technologies are equated with automation--traditionally defined as the replacement of human labor with machine labor.
Dawn of a New Age?
If the new technologies are, indeed, only a tool, the ambivalence reflected in the dialogue at the beginning of this article is understandable. If cyberspace is about what we do, it is reasonable to ask questions about how well we do what we do after we invest in it. But what if something more is going on? It is undeniable that software, at least well designed software, can speed up any informational task. However, what if the computer is the kind of tool that touches not only what we do but the environment in which we do it?
What if, as we employ the new tools, we are also changed by them? What if, as we take advantage of cyberspace, we are, at some point, drawn to knowledge that was previously hidden or distant from us or just not part of our professional world? And what if laypeople or other professionals are drawn to information that has been part of our professional world exclusively?
What if, in other words, information moving at electronic speed in cyberspace begins to cross not only territorial borders but some of the professional boundaries that separate lawyers from others?
What if, as a result, the boundaries of our professional lives and our profession do not define us as clearly as they did in the past? What if the whole market for legal services, which is an information-oriented market, is changed because the manner in which information is communicated, organized, and processed changes?
If cyberspace is simply a new tool, its impact will be limited to some discrete area of law and legal practice in which the tool is used. If cyberspace is more than a new tool, however, it will affect not only efficiency but also the environment in which business is conducted. It will determine who has access to legal information and how long information is valuable. It will not only provide us with information quickly but change the rate at which knowledge becomes obsolete.(8) It will, in other words, not be simply a useful technology but a defining technology, something on the order of a technology like the printing press, something that acts as a catalyst to using knowledge in new ways and, ultimately, to institutionalizing changes.(9) In considering the nature of a defining technology, it is worth taking note of one event, somewhat removed from the law, that followed the invention and spread of printing. During the second half of the 15th century, printing was welcomed by the most powerful knowledge institution of that time, the church. The first book that was printed by Gutenberg was a Bible, and the largest single category of books printed before 1500 was religious.(10)
During this period, one cardinal called the new technique a "divine invention"(11) and "the technique was seen as divine, God-given for the purpose of enlightening humanity."(12) From the point of view of the content of the new medium, early printing appeared to be a "conservative force."(13) As a new tool for spreading the word of the church, what could be more beneficial than a technology that multiplied the word of God?
As it turned out, printing did multiply the word of God, but it also created an environment in which the flow of information could not be controlled as easily as in the age of scribes. Literacy increased, more secular works were produced, and when, in 1519, Martin Luther tacked his list of grievances to the church door, the technology of printing saw to it that the list of grievances was distributed broadly.
For Luther, the increased audience that printing created gave his message an impact it would not have had 100 years earlier. It has been estimated that in the 3 years following his historic act, more than 300,000 copies of Luther's writings were sold.(14) The church, quite obviously, was not replaced by a movement that took advantage of the power of the new medium. But it was displaced since it did not recognize that the market for religious information had changed and that the level of control over information and communication it previously exercised was unlikely to continue, indeed, could not continue.
If this episode has any relevance to the future of the legal profession it is that lawyers, while they will not disappear or be replaced, may be displaced and work in a very different and much more competitive environment than before. One lawyer recently wrote that "from the moment we lawyers enter our offices, until we turn off the lights at night, we deal with information."(15)
Lawyers, as this suggests, participate in the information marketplace, and new media change that marketplace. On one level, cyberspace provides extraordinary informational capabilities that can be employed and exploited by lawyers. At the same time, however, many lawyers can expect to see competition from groups that may not even exist today but that will find opportunities to deliver information previously under lawyers, exclusive control. The boundary of the profession, that murky line that separates "unauthorized practice of law" from the "authorized" practice of law, is likely to be tested, tested again, and then tested again.
The "space" part of the term "cyberspace" suggests that the new technologies change the kind of space or environment in which we live and work.(16) In this new environment, we cannot expect to rely indefinitely on informational skills that were valuable to us in the past. We cannot assume implicitly that "the past is prologue" or that the status quo will continue.
Lawyers who are complacent about change, who welcome stability, and who currently feel that they have achieved a position of security will be vulnerable in the future. For these lawyers, the flowering of cyberspace is not good news and not, in terms of the title of this article, lawyer-friendly. Yet, a more developed cyberspace may be quite lawyer-friendly for anyone who enjoys competition, is entrepreneurial by nature, and who understands that lawyers already have skills for working with conditions of complexity, change, and uncertainty.
Cyberspace is growing, and growing rapidly. What this means is that information acquisition and dissemination is occurring much more rapidly, new ideas are being generated, and relationships are being formed among people not previously associated with each other. Those segments of the legal profession that do more than deliver information, that work with complex information and make judgments that clients can respect, will see opportunity where others may only see gloom.
Information moving through the network will be recognized as being integral to the maintenance and success of economic and legal relationships. For lawyers who have skills in managing relationships, settling disputes, confronting complexity, and establishing standards, all this activity in cyberspace can be viewed as a "welcome mat."
Cyberspace will be a place of great economic significance in the future, but it will not be a place that is any more harmonious than our existing physical spaces. Lawyers already have skills that will be in demand in this highly active and complex environment. To prosper from these skills, what is required is to see cyberspace as a place where change is rapid and continuous, where relationships are quickly formed but of uncertain duration, and where, in general, time is accelerated and distance is compressed.
All Professions Affected
Lawyers concerned about their own future in this environment would benefit by paying attention to what is happening to other institutions that, like the legal profession, may not in the past have perceived themselves as being in the information business. A recent article in the Wall Street Journal concluded that "consumers demand banking services, but not necessarily banks."(17) What this means is that cyberspace separates information from the places in which it used to be found. This is a threat to bankers who see banks as buildings or physical places rather than as networks of data exchange.
Similarly, this is a threat to librarians who see themselves as managing places called libraries. It may not be a threat to those librarians who view their role as being experts in managing information resources.
The late sociologist Rose Goldsen once wrote that it is "possible to turn off the television set. It is not possible to turn off the television environment."(18) The same can now be said about the computer and the rapidly growing computer environment.
As cyberspace looms larger and larger in our future, the legal profession can prosper only if it becomes aware that cyberspace accelerates change in the information marketplace and that lawyers are participants in the information marketplace. This requires changing course, in the sense that it may require new attitudes about the lawyer's relationship with information, about how lawyers work with clients, and about what clients expect of lawyers.
Cyberspace is not something that is easily touched, but it is not a mirage and it is not something that can be navigated without encountering turbulence. The legal profession certainly is not alone in having to come to terms with this new informational environment. The profession is, in a sense, riding in the same boat with bankers, publishers, librarians, and educators. Most of these groups face challenges that are, in all likelihood, greater than those challenges faced by the legal profession.
Like these other entities, lawyers will thrive if they do more than simply deliver information. Lawyers can take comfort in the fact that, in the past, their roles and their skills went beyond information delivery. It is these roles and skills, used in meeting individual client needs, on which the future of the profession rests.
(1) WILLIAM GIBSON, NEUROMANCER 51 (1984). (2) CYBERSPACE FIRST STEPS 14 (Michael Benedickt ed. 1991) (3) See generally M. ETHAN KATSH, LAW IN A DIGITAL WORLD 65-91 (1995). (4) Steven Levy, The King of Softwure, MACWORLD, Sept. 1991, at 67. (5) Number of Internet hosts: 10/89--159000; 10/90--313,000; 10/91 617,000; 10/92-1,136,000; 10/93--2,056,000; 10/94-3,864,000; and 7/95--6,642,000. Data obtained from http://www.nw.com. (6) AMERICAN BAR ASSOCIATION LEGAL TECHNOLOGY RESOURCE CENTER, SURVEY OF AUTOMATION IN SMALLER LAW FIRMS 46 (1995). A separate survey of lawyers practicing alone or in small firms showed that 24 percent of the respondents used the Internet in early 1995 and that 53 percent intend to use it in the next 12 months. Id. at 85. (7) RONALD W. STAUDT & ROSEMARY SHIELS, CHICAGO-KENT 1994 LARGE FIRM SURVEY AND STATISTICAL ANALYSIS 171 (1995). See also Richard A. Matasar & Rosemary Shiels, Electronic Law Students: Repercussions on Legal Education, 29 VALPARAISO L. REV. 909 (1995). (8) See generally Philip E. Ross, Software As Career Threat, FORBES, May 22,1995, at 240. (9) ELIZABETH L. EISENSTEIN, THE PRINTING PRESS AS AN AGENT OF CHANGE (1979). See also M. ETHAN KATSH, THE ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW (1989). (10) LUCIEN LEBVRE & HENRI-JEAN MARTIN, THE COMING OF THE BOOK THE IMPACT OF PRINTlNG 1450-1800 at 24950 (1976). (11) Rudolph Hirsch, Pre-Reformation Censorship of Printed Book, in THE PRINTED WORD 102 (1978). (12) MARIANA TAX CHOLDIN, A FENCE AROUND THE EMPIRE, RUSSIAN CENSORSHIP OF WESTERN IDEAS UNDER THE TSARS 4 (1985). (13) BOOKS AND SOCIETY IN HISTORY 57 (Kenneth Carpenter ed. 1983). (14) ARTHUR G. DICKENS, REFORMATION AND SOCIETY IN SIXTEENTH CENTURY EUROPE 51 (1968). (15) David P. Vandagriff, Taking the Computer Cure, A.B.A. J., Dec. 1993, at 59. (16) See generally WlLLIAM J. MITCHELL, CITY OF BITS (1995). (17) James Barth & R Dan Brumbaugh Jr., Your Home Computer Will Soon Be Your Banker and Broker, WALL ST. J., Aug. 1, 1995, at A15. (18) ROSE K. GOLDSEN, THE SHOW AND TELL MACHINE: TELEVISION WORKS AND WORKS YOU OVER at xi (1977).
M. Ethan Katsh is professor of legal studies at the University of Massachusetts at Amherst and the author of Law in a Digital World (1995).
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|Author:||Katsh, M. Ethan|
|Date:||Dec 1, 1995|
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