Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.
Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.
Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.
Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.
Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally,
to seek enlightenment. Email Ernest at esvenson@gmail.com.
About this blog
Between Lawyers provides just-in-time group commentary on the issues
raised when technology, culture and the law intersect. We take you
behind the firewalls and conference room doors to show you how
experienced lawyers deal with these issues and help you prepare for
the new challenges we all face. For more, see our introductory post.
So — what should Nixon Peabody have done when its embarrassing firm non-theme song made its inevitable way onto the Web? (And into the atmosphere of countless homes and offices, as its hapless victims hum and mutter it against their will and better judgment?)
If they'd have asked me (or perhaps 95% of the over 1,000 people who have voted in the Volokh Conspiracy poll), I'd have told them the last thing they should be doing is invoking the DMCA. Instead I'd have recommended:
applying an appropriately liberal Creative Commons license,
holding a mashup contest, and
showcasing the winner and the top 9 runners up on the firm's home page.
As more and better communication and collaboration functions move to the Web (under non-negotiated, vendor-centric terms of use), what are our obligations as both tech- and ethics-savvy lawyers? I for one am not about to give up Gmail. So, what's the best practice?
Shun Web services, you simply can't control the data? Use Web services only when you have specific, confidentiality and reliability guaranteeing service level agreements? Use Web services liberally, but acquaint yourself with the applicable terms of use and make sure clients are amenable?
David Lat, on the New York Post's Lawyers, Fun, & Money piece (about midlevel attorneys leaving large firms): "As the Book of Revelation teaches, when Fortune 500 document dumps are being reviewed by Cardozo rather than Columbia grads, the end is near."
Attorney and Chicago area blogger Mazyar M. Hedayat has drafted and released a blogging policy for the DuPage County Bar Association, "as well as any committee, firm, or bar association thinking of establishing blogs or wikis in order to foster communication with their members or the public." It is a concise nine points in length, and I like every one of them:
#1 know and follow bar association guidelines for conduct, as well as the rules of good legal writing. no need to use Blue Book citations, but be accurate in your posts: others will look to them as a source of information and news, if not actual research.
#2 be mindful of what you write. remember that you have an audience.
#3 identify yourself and write in first person. make it clear that you are not necessarily speaking for the bar association as a whole. be sure to disclose any information necessary to keep your statements from being misleading. use the following disclaimer on your blog or wiki with respect to all posts:
unless indicated to the contrary posts do not reflect the views of the bar association, its members, executives, staff, board, or committees, and are the opinion of the writer
#4 respect copyright and fair use. do not plagiarize. give credit where due by citing to the author of a statement or passage.
#5 do not reveal confidential information that could result in liability to yourself, your committee, other bar association members, or the bar association itself.
#6 do not comment on active cases or client matters by name except with the approval of those referred to in the post.
#7 do not use ethnic slurs, insults, or obscenity. Avoid writing about inflammatory topics solely to pique prurient interests.
#8 always try to add to a discussion constructively and ultimately to add value. do not let your ego get in the way. you are here for the good of the bar association after all.
#9 have fun. a blog or wiki can be loads of fun and a terrific way to share the best of your committee with the world.
Unless you're our colleague Ernie, that is: "I don't want to put any disclaimers on my blog," said Ernest Svenson, a blogger better know as Ernie the Attorney. "It's a buy-in to a mindset that I want to go away." Well said, as to what should by rights be able to remain unsaid.
There's an excellent article at APC Magazine, warning businesses who lock down their Internet access that they're in danger of losing employees. But that's not all they're in danger of losing. There's a reason "digital natives" are so reliant on the 'Net they will resort to elaborate and policy-violating workarounds: they get things done there. They knowledge-gather. They connect. They market. They produce. What's at stake for businesses who fail to grok this goes far beyond recruiting and employee retention. I give any such outfit five years of soulless survival, at the outside. (Via Techmeme)
On February 26, 2003, Robert Scoble penned (keyboarded?) his Corporate Weblog Manifesto, possibly the single most important thing business people can read (other than, of course, Robert's book) to understand what it takes to navigate and thrive in the blogosphere. Over time there have been a couple of addendums (I may be missing some), which also are key reading. Today, Robert has more in the same vein with Rule #1: Don’t pull down posts — a real world cautionary tale that warrants taking to heart.
Just out this week, Socialtext Open: "Socialtext Open is released under a standard open source license, and contains all of Socialtext's enterprise grade code aside from enterprise management and enterprise integration tools."
Wikis at work,
BEA, IBM, Oracle, SAP Ramp SOA Spec Efforts: "The group also has setup what they call a 'vendor-neutral Web site, designed as a wiki' they will use to collaborate, communicate and gain feedback from developers. There's a place for news, white papers, public specifications and access to information on early deployments."
Illustrating the approaches toward blogging policies should be context-specific and not cookie cutter:
Sun Microsystems CEO Jonathan Schwartz: "Our blogging policy is 'Be authentic. Period.'" (It's been awhile since I was showing up bright eyed and bushy tailed for Larry Sonsini's Securities Regs class in law school, but I'd be willing to bet Sun's securities lawyers might want a qualifier or two.)
Summer camps, with camper identities to protect and other considerations, might understandably go a different route. That article also highlights, and Dennis pointed out (by pointing here) on our mailing list, the camps' attempts to police bloggy uses of their trademarks. I'll have to defer to Marty on this but what they're concerned about sounds like nominative fair use.
A colleague recently asked me what concrete steps I thought an organization could take to help ensure the concepts underlying a blogging policy are actually understood and implemented. Bearing in mind I am so not an employment lawyer, I did have a few thoughts.
Blog. I suspect that companies pursuing their own blogging initiatives in addition to implementing policies intended to cover unsanctioned employee blogs will run into fewer problems with employee mistakes or misunderstandings. This is because the management and culture throughout the organization is bound to better grasp the process and related security and compliance issues. IMO, the best "training" occurs by example and widespread use.
Breathe. As I've pontificated here before, there's a pretty good case to be made that blogs and their ilk are
actually the least risky form of corporate communication. If a company adequately gets across the reasons it expects certain employee conduct with regard to external communications, confidential
information, and technology use, blogs, etc. are at least as "safe" as email and the phone; in fact, because people are more likely to understand up front these technologies are designed to accomplish wide and persistent information distribution, people are more likely to approach their use with caution and respect.
Mix. Organizations need to make sure their P.R./marketing and legal arms are communicating about how employees should be relaying work related information to third parties or the world at large, and they need to have an open-eyed appreciation of all the ways people might be or are using technology to do so. Brace yourself: P.R. and legal goals just might compete. Management needs to understand those conflicts and decide what resolution best fits what they're trying to accomplish (and what the law insists they accomplish).
Tom Collins, in his excellent More Partner Income blog, describes a phenomenon that I've seen for a long time, yet have found difficult to explain to people. In fact, I often feel that people do not believe me when I talk about this. It is somewhat counter-intuitive.
As Tom explains, lawyers in mid-sized firms (and also in more larger firms than people might expect) are consistently working annd billing more hours than associates. There is no "leverage" and in many mid-sized firms the partner/associate ratio is 1:1 (or less).
What has happened, especially since the notion of minimum billable hours got applied to partners, is that partners hoard work and do not delegate it to associates. The reasons are pretty clear - if your compensation and review is based on making your own quota of billable hours as a partner, then, even though you are defeating the basic economic purpose of having a firm and using leverage with associates, you will make sure that you have sufficient work to make your own billables quota first. In firms that use "billed" or "collected" hours as a measure, the tendency to hoard is even greater.
Tom's post does an excellent job of describing the phenomenon and explaining the many negative consequences that flow from it. Tom's suggestion of a more rational compensation scheme for mid-sized firms is mandatory reading, especially if you are a parther (or a partner-to-be) in a mid-sized firm.
My own take on this is that the work-hoarding partner phenomenon is one of the most insidiously destructive forces at work in law firms today. If you ask senior associates and young partners why they have left firms, it is rare not to hear some variation on this theme.
I applaud Tom for asking the questions and proposing a starting point for finding a solution.
The money quote:
The firm gets a bonus out of the new approach. The firm gains a farm team out of which the future partners and leaders of the firm will come.
It should concern us that Tom has to remind us of the basic truths he notes in his post. More firms, however, should be concerned that the farm team has already left the ranch.
Looking for another unique, technologically attuned way to market yourself, firm, and/or practice? You could always try gaming MySpace. Or Digg, for that matter. (Please know I'm just kidding, and think those who game social networking sites are a life form on the same sub-primate order as spammers.)
I grow weary of the stereotypical myth-riddled responses of the power people in many major law firms giving excuse after excuse as to why keeping women engaged is next to impossible. I do not believe it and neither should you. This challenge will be met by some firms who will gain enormous competitive advantage.
There's been a lot of discussion in recent days on the latest round of associate salary increases at large US law firms, Bruce MacEwen does a nice job of summarizing the issues here.
The Wired GC stirs the pot with a couple of must-read observations, but here's the money quote:
(We of course know it’s not about price-fixing.)
Hmmm, there's that one hyphenated word.
I remember an earlier round of associate salary increases back in the dot-com era when I was on my firm's hiring committee. As we considered, all the issues you read about in the discussion of the economics of these issues and the need to raise salaries to attract new lawyers, a good number of my friends in small law firms kept using that hyphenated word - "price-fixing." I never bought their arguments.
The category of this post is called "Provocations." Here comes the provocation and we'll see what discussion we get.
In recent months, I've noticed a ratcheting up of the "protections" of the legal profession from within - stories about lowering the rates of bar exam passage, decisions that law firms can't use certain types of advertising (pit bull ads anyone?), other efforts on preventing "unauthorized practice of law," and and now law firms all over the country raising starting salaries by same amounts in all but unison.
Is the legal profession begging for outside (governmental) investigation, intervention and antitrust regulation?
I'm just raising the question to see what people think, not necesarily as a reflection of my own opinion.
Thanks to the Wired GC for asking some tough question. I highly recommend his post.
Many, maybe most, weblogs involve some combination of personal and professional material. In recognition of this fact, and in an effort to understand how people are striking this balance in the real world, BlogHer recently conducted a survey and gave a presentation at SXSW, entitled "We Got Naked, Now What? Blogging Naked at Work." From the panel description: "Can you open your kimono in one blog post, and wear a button-down shirt in another?"
Lisa Stonelive-blogged the panel, moderator Elisa Camahort gives this rundown of the survey results, and The Washington Post has this postscript. Among other things, the survey found the majority of the respondents "draw distinct boundaries between public and private information," and (perhaps accordingly?) "83 percent of professional bloggers who responded to BlogHer’s survey indicated that they had never received negative feedback to the personal opinions, feelings and experiences included on their business blogs." The survey also showed the respondents, whether they self-identified as more "personal" or "professional" bloggers, shared a tendency to exercise judgment and discretion as to subject matter:
The top subjects that were considered not suitable for business blogging include romantic/sexual feelings (84 percent), salary/income (77 percent), religious/spiritual beliefs (63 percent), and sexual orientation (57 percent). Surprisingly, the personal bloggers were also likely to consider salary/income (68 percent) and romantic/sexual feelings (50 percent) off-limits. In addition, personal bloggers showed reluctance to discuss feelings about events at work (54 percent).
I think it was in the March 3 edition of The Gillmor Gang that Steve Gillmor had some characteristically blunt and insightful commentary about the reluctance of corporate IT departments to embrace new technologies that are compelling but disruptive of the existing infrastructure. This can be both frustrating for users and counterproductive from a business standpoint. Against this backdrop I was interested to read Paul Chin's article in Intranet Journal,The Value of User Generated Content, Part 1. [Via Genie Tyburski] Part 1 puts the issue of things like blogs, wikis, and discussion groups (discussion groups? less relevant at the moment than podcasts, I would think) in a corporate IT person's context, comparing these media forms to the "engineered content" (apt phrase) that heretofore has populated intranets. Part 2 (still to come) will examine how "[i]n order to find a happy middle ground when using UGC, and not to appear overly controlling, a formal set of content posting guidelines should be agreed upon by both the intranet owners and users." (Emphasis mine.)
So, it seems that IT departments may be beginning to come to terms with "UGC" and its inevitability as part of the corporate environment. As to the important related policy decisions, though, I certainly hope the norm will be for these to be the ultimate province of other parts of the organization.
Actually, I have lots, some admittedly more lofty than others. One is that law firms and their clients will find ways to spend less on IT without sacrificing performance or convenience. Robin "Roblimo" Miller's book Point & Click OpenOffice.org seems like one of many excellent possible starting points.
I had a similar experience recently to the one Ernie talked about in his post today about Martindale-Hubbell. I received the same type of rating letter as Ernie did. In my case, I found that I recognized only a few names in the three-page list and I simply did not know enough about them or their practices to rank them. So, like Ernie, I threw the letter away.
However, even though I kind of like helping with the rankings, I think that not evaluating lawyers I don't know enough about is much better than guessing about ratings or giving people low grades because I nothing about them. As Ernie mentioned, the ranking system is a little obscure and I'm not sure that what it would mean if someone got that "X" rating on ethics.
The ratings always have had a bit of mystery about them and, for many years, you weren't allowed to use your ranking in your marketing materials, not that putting a little "av" in your materials would mean that much to most people.
I've actually used the Internet version of Martindale Hubbell for many years. In most cases, I'm simply looking for the address, phone number or email address of a lawyer whose name I already know.
I've found two negatives in my use of Martindale.com.
First, it really is not a complete list of all lawyers and firms. Often, it seems, solo and small firm lawyers simply are not in the database and lawyers in corporate legal departments are especially hard to find (perhaps this is done intentionally to keep them from being bombarded with resumes). If lawyers are in the database, the amount of information that is available will vary, depending on the type of (paid) listing they have.
For example, I just checked, because I didn't know for sure, whether I am included in the online directory. It turns out that I am. Compare Ernie's listing to mine and you will see that Ernie's firm probably pays for a higher level of listing, because there is much more information about him than there is about me.
Just now, for example, I checked Marty's listing (Marty, you've never mentioned that you went to Harvard), Denise's listing (Berkeley law school - I assumed one of the Southern California schools), and Tom's listing (OK, I knew the Texas undergrad degree, but wasn't sure about UT as well for law school). I would not have guessed Ernie's law school correctly. Memo to the Between Lawyers group: maybe we need to learn a few more details about each other. I also noted that Lawyer X is not listed in the directory.
Which brings me to my second observation: I've found that, invariably, once you get into the Martindale-Hubbell directory, you get distracted and spend time looking up friends, old classmates and the like.
So, over the years, I found that I preferred the West Lawyer Digest (now part of FindLaw) to the Martindale Hubbell database. However, in many instances, I ended up using both.
These days, I tend to do the quick Google search, but even there the results can be unsatisfying, especially if you are looking for a lawyer with a common name or, more likely, the lawyer's firm has done a poor job in managing its Google rankings. And then there's the all-to-common problem of law firms making it way too difficult to find mailing addresses, phone numbers and email addresses of their lawyers. (Memo to law firms: the danger of losing potential business is much higher when you hide lawyers' email addresses than any potential danger of increasing the the amount of spam you might get by making the email addresses readily available).
All of which leads to the reason for this post, which is that you will definitely want to read the Wired GC's post called "Law 2.0 Through the Martindale-Hubbell Telescope" in connection with Ernie's post, my post and any comments on them. The Wired GC has a fascinating take on this issue and I highly recommend his post.
It's also intriguing to think about these issues in terms of Web 2.0 applications. Imagine using the Martindale database in connection with the Google Maps API to map lawyers with "av" ratings (or matching other criteria) in your geographic area. Or, how about using the Rollyo search engine tool to create mini-search engine that searches only from a limited set of legal directories?
The other day I got a 'personal and confidential' letter from Martindale Hubbell. My name and address appeared at the top, but the letter was addressed "Dear Legal Professional." It asked me to anonymously assign rankings to 55 attorneys who practice law in New Orleans. I've filled out many of these surveys in the past fifteen years, carefully pondering what rank to assign to each attorney. This time I quickly scanned over the 3 pages of names, concluded I didn't know enough to make judgments about most of them, then tossed the survey into the garbage.
In the kind of story that fuels the general level of suspicion many people have about advice from huge consulting firms, I saw that CNET has an article called "Gartner's advice: Halt BlackBerry deployments" that makes the usual advice you get from lawyers seem clear and concise.
I can't resist quoting:
The research note advises enterprises to "stop or delay all mission-critical BlackBerry deployments and investments in the platform until RIM's legal position is clarified," because "U.S. BlackBerry users would lose messaging services...and international users would lose message service while traveling in the U.S."
However, Gartner expects the two companies to reach a settlement within three weeks because an agreement would be "in both companies' interests."
There is a possibility that RIM could bypass the patent dispute by deploying a workaround, but Gartner said this path could be "highly problematic."
"RIM claims its workaround is legally sound, but its history in the courts does not inspire confidence. Moreover, end-user validation and implementation would take time, resulting in a temporary loss of service," the research note said.
Gartner advises enterprises "not to sign any agreements that could involve them in the RIM-NTP dispute" and "demand that RIM discloses its workaround plans."
If RIM deployments are not mission-critical, Gartner said, enterprises could take no action for the moment but rather "assess the potential impact of operation outages of unknown duration."
I believe that advice covers every possible side of this issue and hedges every bet.
In fairness, I read only the article and not the full research report.
Perhaps this is the best summary of the report:
"If you read it closely, we're telling people to sort of take a break here and wait until this case settles within two to three weeks," Gartner analyst Ken Dulaney told Reuters.
Of course, if you expect the case to settle, as everyone seems to believe these days, why report that the sky is falling?
Between Lawyers's own Tom Mighell has published an excellent, succinct explanation of basic Web 2.0 concepts, along with a great set of examples that might be used by legal researchers and lawyers. Get the details here.
Tom and I (Dennis) also participated in a roundtable article in the new issue of the ABA's Law Practice Today that a group of us created using the Web 2.0 tools at Writely.com. The article, "Looking Back and Looking Forward" looks at some of the technology tools we used and liked in 2005. The issue had a "Best of 2005" theme and Tom and I also polished up Tom's "Strongest Links: Ethics" column from earlier in the year, and added in some new, interesting ethics sites. The new column can be found here.
I'll note that there's been a lot of discussion about wikis and some new legal wiki projects announced in recent days. It's an area to keep your eyes on.
It's highly likely that we will be putting together a roundtable article about the potential uses of Web 2.0 tools in the legal profession for next month's issue of Law Practice Today. If you are interested in being a contributor to that article, please let me know.
As many of my friends know, I've been bitten by the Web 2.0 bug lately and done a lot of thinking (but not very much public writing yet) about how Web 2.0 might be applied in and to the delivery of legal services and practice of law. Steve Nipper has also recently raised the question about how to bring Web 2.0 into what is fundamentally a Web 1.0 world.
I think that this is a very important, yet quite esoteric, topic. However, The Wired GC has made an enormous contribution to the discussion with his post called "Web 2.0, Law Style," which definitely makes my "must read" category. It's both a good introduction and a map of the territory and its implications.
I expect to see not only more discussion of the topic (and I invite you to use the comments to this post as one method to do that), but some actual announcements of things that fall into the Web 2.0 category, including at least one of the ideas mentioned in the Wired GC's post in the very near future. In fact, I'm quite sure of it.
The answer, not contained in the article except if you read between the lines, is: only if clients want them to be numbered.
The article does a good job of sketching the history and background of hourly billing for legal services and gives an update on efforts by the ABA and others to explore and support alternative billing methods.
The money quote:
But if the billable hour is such an inefficient system, then how did it come about in the first place? The blame can be traced, as you might suspect, to Harvard University.
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
