Technology-Lawyer

Dennis Kennedy

Technology Law and Legal Technology. Dennis Kennedy is one of the few technology lawyers who is also an expert on the underlying technologies. Dennis an award-winning leader in the application of technology and the Internet to the practice of law. DennisKennedy.com gives you access to a wide variety of Dennis Kennedy's resources on legal technology, his writings, his well-known blog, DennisKennedy.Blog, and information about how you can have Dennis speak to your organization or group.

Dennis Kennedy is one of the most knowledgeable legal technologists you will find. - Michael Arkfeld.

Dennis Kennedy, a lawyer and legal technology expert in St. Louis, Mo., has been a significant influence in the ever-evolving relationship between lawyers and the Web. - Robert Ambrogi

The Clearest Picture of the Future Practice of Law Comes From . . . Non-Lawyers

Ross Mayfield wrote a post called Standard Weblog Employee Policy in which he lamented the current state of affairs for policies that govern employee bloggers. Ross’s concern was not so much what should be in the policies (although he obviously has an opinion), but more the fact that there are no “standard” guidelines for these kinds of policies. What’s worse, he fears, and I agree, is what will happen when lawyers jump in with deluxe blogger policies.
Ross sums up the concern as follows:
“Enter the lawyers. The problem is most lawyers didn’t study under Lawrence Lessig or Jochai Benkler, read Cluetrain and Gonzo, and are card carrying members of the EFF. They come from the school of fear and greed. Just think of the billable hours possible for surveying every risk, asserting control and property and taking what they can from the market. They will come up with their own agreement, backed by their opinions. The human voice of the company will be muffled and the enterprise gains little benefit.”
I’ll add that the problem is further complicated when a company compartmentalizes the legal project as an “employment law matter.” In that case, it really becomes a hit or miss proposition whether the lawyer drafting the policy knows anything at all about blogging and the blogging policy is likely to be modeled on the hardware and software use plicy or email use policy, whichever is handy. Even though I practice in the area of computer law and like to believe I have some knowledge of blogging and the related issues, I would predict that, in most cases, a company would not seek to obtain recommendations from someone like me. As a result, Ross’s fears are more than warranted.
More specifically, he says:
“Right now, they can point to the Sun Policy on Public Discourse, Groove Weblog Policy and the evolving Corporate Weblogger Manifesto as examples. They can talk their executives into considering it by pointing to Jonathan Schwartz, me (heh) and Bill Gates any day now. But its still an emerging issue.
When an employee proposes external enterprise blogging, she needs to kill off policy debate by pointing to an open and accepted agreement. Either that or wait until a court decision on corporate exposure.”
Although Ross gives the two options, it is clear that no one other than lawyers prefers the second option. The practices of lawyers are increasingly becoming a significant “friction” in processes that people would like to streamline. It’s one thing when the friction we bring into the process is legitimate risk management that addresses real concerns and issues, but it’s quite another thing when the “friction” is just plain “friction” that doesn’t seem to help anyone out other than lawyers.
Ross suggests an approach where there may exist one or more approaches that are generally acceptable, given an employer’s approach to legal risk management and its willingness to accommodate its employers, its ability to see the benefits of blogging, etc. In a manner similar to, for example, the GPL or the BSD License, a company might choose a standard approach and use a standardand easily (and cheaply) available agreement that matches its desired approach. Rather than have lawyers customize all sorts of elaborate language, the company could use lawyers to help them understand the legal risks of the different approaches and any unique issues that might need to be addressed.
Ross has stated something very important and Robert Scoble and others have picked up on the points he makes. Among other things, he has given us a good practical example of the ways that law and software do have some tendency to merge and the general concern (see, e.g., CAN-SPAM) that laws and lawyers trail too far behind where most people, not just technologies, are today. The longer lawyers offer only the option of waiting three or more years for a court to decide issues that everyone knows have practical solutions that can be quickly implemented, lawyers practicing in traditional ways risk becoming increasingly less relevant.
Mayfield’s post should be studied carefully by lawyers. Increasingly, lawyers will see clients tire of waiting for lawyers to bring them solutions to new problems and seek to find solutions that have some industry-wide acceptance and ask their lawyers to work within the constraints of those solutions. For what it’s worth, my own interests take me increasingly toward models of delivery of legal services that look more like software applications than the traditional document preparation that lawyers have done for years.

Permalink: The Clearest Picture of the Future Practice of Law Comes From . . . Non-Lawyers

Comments are closed.

Dennis on the Web

Archives

Attorney Lawyer website design for Law Firms
Spry New Media Quality custom web site design, development and promotional services for Attorneys and Law Firms.