California Bar Journal
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E-mail: Does it simplify lawyers' lives or just increase the stress?
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a recently proposed "cybercourt" in Michigan.

Andrew GuilfordIncreasingly, 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.

Richard CarltonYet 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.

Mark RadcliffeSilicon 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 last-minute changes.

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.

Erica YewIn 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 difficult.

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 trial courts.

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 cross-complaints.

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 step."