a recently proposed "cybercourt" in Michigan.
Increasingly, attorneys are negotiating,
advising, exchanging information and responding to clients - via
e-mail. "E-mail, indeed, has revolutionized the way we practice
law," says Costa Mesa attorney Andrew Guilford, a partner at
Sheppard, Mullin, Richter & Hampton and a former State Bar
president. "It amazes me how quickly the change has come."
But with the dramatic upswing in e-mail,
attorneys are facing new challenges as well. They point to greater
client expectations, increased vulnerability, new corporate policies
and, some say, an onslaught of electronic messages 24 hours a day, on
top of their telephone voicemail, cell phones and pagers.
"It's definitely having an impact," said
Richard Carlton, director of the Lawyers Personal Assistance Program,
a State Bar-affiliated program to help attorneys deal with burnout.
Carlton, who's run stress management programs
for lawyers for nearly a decade, says participants now cite today's
constant stream of e-mail as a source of stress. He recalls one
attorney who returned home from vacation to find more than 500 e-mails
waiting for her; others regularly receive some 100 e-mails a day.
Yet our brains, Carlton suggests, have yet to
catch up with such technological advances. "Most of us don't have
the capacity to process 100 messages a day," he said.
And the messages, attorneys say, often cannot
wait. Gone are the days when a secretary would politely explain to a
client that the attorney was in a conference and unreachable. Gone,
too, are the days when an attorney could respond to a client by letter
the next day, some say. Clients now expect a much quicker response.
"Some clients expect e-mails to be responded to
immediately, which means you need to be watching your computer screen
all the time for those incoming e-mails," Guilford said.
San Francisco lawyer Steve Kaufhold, a securities
litigation attorney at Brobeck, Phleger & Harrison, suggests that
e-mail also seems to "embolden" some clients to make requests that
they wouldn't feel comfortable making directly.
Silicon Valley attorney Mark Radcliffe, a partner
at Gray Cary, agrees. But he also notes that e-mail has hastened deals
and made "cross-border deals much easier to do." In addition, he
says, the ease of exchanging electronic documents has made people more
willing to "negotiate harder on things" and accommodate
In one recent venture deal, Radcliffe's
negotiations with Japanese multinationals stretched into the night via
e-mail to multiple locations in Japan, New York and California. The
deal was set to close the next day, he said, but time zone differences
demanded that he get a wire transfer authorization and finalize the
deal that night.
Attorneys, too, note the enhanced ability to
communicate with each other in cases involving far-flung,
multidisciplinary teams of lawyers or with multiple plaintiffs.
In a case involving 40 plaintiffs, Erica Yew, a
partner with McManis, Faulkner & Morgan, used e-mail to keep in
touch with her clients after meeting with them and setting up
guidelines. For example, she said, she advised them not to forward her
e-mail for fear of breaching the attorney-client privilege.
To send e-mail when out of her San Jose office,
Yew uses a Palm VII, one of several tiny, wireless "personal digital
assistants" (often referred to as PDAs) on the market. And while she
receives more than 100 e-mails a day, Yew doesn't see it as a
burden. "I feel that it makes my life easier," she said.
Yew uses e-mail to contact her office during jury
trials and to respond to clients from noisy airports. She also uses it
to keep abreast of her bar activities. And last spring, she ran a
campaign for a seat on the State Bar's Board of Governors entirely
by e-mail - and won.
Says the new board member, "It became this
energized e-mail tree . . . It was the most interesting combination of
grass-roots outreach and technology."
There are, however, pitfalls to e-mail
communication. The tone of such written messages, absent
verbal cues and body language, easily can be misconstrued. And
while e-mail lends itself to informal, off-the-cuff communication,
attorneys say it also provides a written record and can easily be
forwarded to others.
"If you're not careful, it can lead to
unintended consequences," Radcliffe said. "The informality of
e-mail can suck you in."
In addition, some attorneys copy their e-mail to
clients during negotiations and, in turn, engage in posturing, which
can create awkward situations. "I always assume that any e-mail I
send to anybody is going to be blasted to everybody in the
transaction," Radcliffe said.
Some attorneys simply avoid communicating with
opposing counsel or clients via e-mail when possible. A few steer
clear of e-mail completely. But doing so may become increasingly
On an average day last year, North Americans sent
6.1 billion e-mail messages, according to a study published in
September by IDC, a global IT research and consulting firm. That
number will jump to 18 billion e-mails a day by the year 2005,
according to IDC projections. And researchers expect that more than
half of those e-mails will involve business, not personal, matters.
As e-mail becomes more standard, law firms, too,
are faced with the daunting task of managing - tracking, filing and
securing - e-mailed documents and deciding what should be printed
out. Consultants also advise attorneys to develop firm-wide policies
regarding the use of e-mail and the internet.
Don Jaycox, chief technology officer at Gray
Cary, says the increased use of e-mail has indeed thrown a "curve
ball" into document management systems and has increased
attorneys' vulnerability. The new risks include the threat of
intercepted e-mail, impersonation, e-mail-borne viruses and hoaxes,
electronic espionage (in which an e-mail attachment containing a
"Trojan Horse" uploads data from your hard drive to a repositor on
the internet), and employee document theft via e-mail.
While forms of protection are available, Jaycox
says, such vulnerabilities did not exist before e-mail became so
prevalent just a few years ago. "Now they are things you have to
worry about," he said.
But Jaycox, too, sees benefits in e-mail
communication. Last fall, he began distributing wireless
"BlackBerry" PDAs to attorneys throughout the firm. And the
attorneys, he said, are "standing in line" to get them. The
pocket-sized device connects the attorney to his or her office e-mail
account, chirps or vibrates with incoming e-mail, and allows the
attorney to discreetly check or send e-mail in real time from a board
meeting or courtroom or airport.
"It really helps the attorneys stay in touch
with the office," he said. "It helps them use time that was
previously dead time."
Various signs point to electronic communication
becoming even more prevalent in the future. For example, in just a few
years, attorneys may be "e-filing" complaints to California's
In late 1999, state legislation authorized trial
courts to adopt local rules of court for the electronic filing and
service of documents; the bill also directed the Judicial Council to
adopt uniform rules of court for electronic filing by 2003.
And earlier this year, Sacramento courts began
offering "e- filing" via the internet for small claims cases and
In addition, a new federal law recently gave the
digital signature the same legal validity as a signature penned in
ink. And in Michigan, legislators are considering a bill calling for
the creation of a special "cybercourt" to handle cases involving
technology-related companies. With a judge and clerk sitting in an
actual courtroom in Michigan, attorneys could argue their cases via
e-mail and teleconferencing from their homes or out-of-state offices.
The prospect of cybercourt is not news to
attorney Mark Radcliffe, a co-author of "Internet Law and Business
Handbook." He sees such efforts as the wave of the future for all
kinds of law.
Says Radcliffe: "I think that's the next