Do lawyers kill good uses of technology?

I frequently debate the utility of new technologies with third parties and my clients.  Those of you who’ve seen Isabel Wang and my Punch and Judy presentations know that we both have pretty strong views of the place that cutting edge technology plays in business.  While some of my thoughts on the incorporation of new technology into business are based on liability and contract concerns associated for “not ready for prime time” technology, they’re also based on a healthy dose of skepticism about the utility of all this stuff.  As a lawyer, I tend to need less connectivity rather than more – it’s tough to read an 80 page contract with IM chirping away and friends telling me all day long what they’re doing.  However a number of things have occurred this past year that have made me think about the relationship between lawyers and new technology.

The first was a post on Isabel’s blog in which she evangelizes the business utility of facebook and twitter.  My thought about twitter has been “you’ve got to be kidding me?  What are you doing?  I’ve had more insightful conversations with a carrot!  Besides, I can just see someone in tech support posting:  ‘patching X customer’s server.’”  The second is a debate on FlyerTalk in which members of the Continental board mused about the potential legal issues associated with flight crews buying pizza for stranded passengers.  Many people took the position that if a passenger got sick from eating the pizza, Continental would be sued.  Finally, I’ve spent some time this week figuring out how to IM with my clients during contract negotiations since so many of them have walled off IM devices.  The most frequent reason I hear for doing this is that someone read somewhere that there were liability issues associated with giving employees unfettered access to IM.

It’s that issue, fear, that I think drives most lawyers to recommend to their clients to kill or significantly rein in technology.  Let’s look at my last anecdote – that IM may lead to accidental disclosure of confidential information.  I’ve heard many attorneys spout this rationale for advising their clients to wall off IM.  But how true is it?  I’ve used IM for over 7 years to communicate with my clients, often with several different conversations going at once, and maybe one or two with friends chirping away as well.  Not once have I told client X what client Y was doing, or one of my friends that the other hated his guts.

Fear that causes lawyers to avoid, or kill, new uses of technology.  First, we’re trained (and like it or not, paid) to spot all the possible problems that issues may present our clients.  In the case of new technology, that may result in one of two outcomes:  the number of problem issues spotted by the attorney becomes so overwhelming, that the client simply abandons the technology fearing that any potential upside will be overtaken by liability issues; second, the lawyer fails to identify ways that the client may mitigate any liability, or work around it.  This second reason seems to stall or kill many projects.

So how does a host, who would like to use many different and potentially untested products deal with this?  The first is to recognize that there is no such thing as a litigation proof strategy or product.  People sue for many reasons, and occasionally for no reason.  You need to be comfortable with the fact that, particularly with new technology, your lawyer isn’t going to be able to assure you that there is no, or even little, risk with a new product.  Second, it’s going to be impossible for your lawyer to quantify every element of risk.  This is particularly true with uses of new technology:  there’s simply nothing to benchmark your risk against.  Also, pressed to the wall, your lawyer is likely to become very conservative.

Finally, you may need to press your lawyer to identify solutions.  Don’t simply engage your lawyer to issue spot for you, engage him as a full member of your team.  If your lawyer sees the full picture, it’s more likely that he’ll be able to identify solutions to the issues he’s raised.  You may also need to encourage him to find new solutions.  Many lawyers are used to being simply asked to issue spot, not help with solving the issues.  However, most lawyers will leap at the opportunity to help make things work – it’s simply more fun.