|
Note:
Some time ago, I wrote a brief essay on the conflict of interest inherent
in cyberspace lawyers who also sell technology products.
Although the combination of cyberspace lawyer and technology merchant may
seem attractive, I am convinced that it's a fertile ground for conflict of
interest. The temptation to
appraise legal risk too highly, to sell a product, seems to me impossible to
ignore. Nevertheless, I have on
occasion re-considered my position, after meeting now and again a lawyer who
seems to be combining the roles responsibly and ethically.
Nonetheless, I feel that my original view, disapproving of a combination
of the roles of cyber-lawyer and cyber-merchant, remains correct.
Here's my original, short essay, that I believe still holds true:
|
|
THE LAWYER AS
TECHNOLOGY CONSULTANT: |
|
Even small cities have nearby a lawyer, no longer practicing, who now provides consultations to law firms and businesses about the legal implications of software and hardware products. This is supposed to be a great advantage, since clients get two skills at once: someone who professes to know both the law and computer technology. It's two, two, two mints in one. The putative advantage is persuasive to many people, and so lawyers are thriving as technology consultants. It is, I suppose, entirely possible for a concert cellist to become a cobbler, but I am not sure if the transformation would produce comfortable, or even wearable, shoes. The implication of the impracticality of the transition from musician to artisan is one of two principal objections to the growing business practice of lawyers as technology consultants. If I told you that I spent half my time as medical doctor and the other half as a car mechanic, you would have every reason to be suspicious when I said that I could easily cure the swelling in your throat, or fix the squealing of your brakes. Both conditions might be life threatening, and both require someone who has spent all his professional time working in the applicable field. A lumpectomy and an oil change just aren't the same. Cyberspace law is a substantive legal field, derived from existing law, and includes the study of copyright, trademark, First Amendment doctrine, electronic commerce, jurisdiction, privacy, cryptography, international law, and public access to cyberspace. Time to devote to these topics is only a preliminary concern -- the more important matter is recognizing that these matters should be the primary focus of the cyberspace law attorney. If you want to know the importance of these fields, then consult with someone who is committed to them as his or her primary concern. An excellent medical malpractice attorney need not be a doctor (he can find medical experts). Conversely, few lawyers understand computer hardware and software as well as they imagine. Many lawyers are technophiles, but that hardly qualifies them as computer technology experts. I love baseball, but I could never successfully manage a professional team, personal fantasies and idle flights of fancy notwithstanding. Do you really want to know what's possible technically? Hire an MIS. I once worked at an organization that tried to use one of its attorneys as the erstwhile MIS associate, to save money. The attorney was proud to play the role, because he felt that it was an acknowledgement of his computer skills. Following a Friday afternoon network failure, he spent the entire weekend at the office trying to diagnose the problem. Late Sunday night, after two days of searching for an answer, he finally looked behind a server, and belatedly realized that that one of the network cables had come loose. Two days wasted on a two minute problem. There is an even greater problem with the lawyer as technology consultant. (If the only problem with the role of lawyer as technology consultant were a matter of time, the combination would represent a middling problem. A truly industrious person -- however rare -- might find sufficient time to grasp both fields.) The more serious problem is that the lawyer as technology consultant has a vested interest in overstating technical problems, and scaring clients about the technical and legal risks of software and hardware. A year ago, I read an article about a lawyer of this ilk, who delighted in telling people how a client's face would become pale whenever the lawyer-consultant described a software glitch that might have implications for client confidentiality. The glitch he described was so unlikely to occur that no reasonable attorney need be especially concerned about it. A single memorandum to the firm's staff would give all the information that they needed to avoid the risk. Nevertheless, the lawyer-consultant battened on the ignorance of his clients (including other lawyers), and succeeded in persuading them that his knowledge of both law and computer technology justified an immediate and frantic response to the allegedly dire confidentiality risk the firm faced. Fear-mongering pays. At least in the case of the concert cellist who becomes a cobbler, we cannot easily say that her musical knowledge can be distorted to advance shoe sales. A lawyer hawking technology fixes, however, has an incentive to inflate risks to sell software and hardware products, or to recommend the purchase of such products from his list of approved and recommended dealers. There is a simple solution to the problem of lawyers as technology consultants. If you're worried about the confidentiality of your documents, find an MIS who understands network security, not a lawyer who reads PC Week while riding the train home from the office. If you're worried about the importance of confidentiality, find a lawyer who can explain risk and liability for breach of confidentiality, not a self-proclaimed computer wizard with a law degree. 'Two for the price of one' often turns out to be not merely half the price, but half the value, for each. FRANK GILBERT ORIGINALLY WRITTEN SEPTEMBER 10, 2000
|
