Every new edition of Computers and Law magazine contains reports of technology, systems and software which continue to revolutionise the legal profession. It seems incredible that only ten years ago the rattling sound of electric typewriters permeated through solicitors’ offices, there was a sense of novelty in borrowing the firm’s mobile phone and trainees would use scissors and staplers to physically cut and paste amendments to pleadings filed with the court. Much has changed during the last decade and the legal profession now finds itself at the beginning of another period of transformation.
In July last year, the Lord Chancellor announced a full-scale review of the regulation of legal services under the leadership of David Clementi. The terms of reference of the review are “to consider what regulatory framework would best promote competition, innovation and the public and consumer interest in an efficient, effective and independent legal sector”. The consultation paper was circulated in March and Mr Clementi will be making his recommendations by the end of 2004. This review could precipitate the emergence of a new legal market-place with banks, building societies and accountancy practices competing with law firms of all sizes in the provision of legal services.
The Clementi Review comes at a time when the legal profession itself is experiencing change from the dual impact of technology on working practices and the provision of legal services. Work is no longer a place where people go; it is an activity that can be conducted anytime and anywhere. Intellectual capital is arguably the most valuable asset of any law firm. Technology enables firms to retain, repackage and redistribute its work product more efficiently through practice and case management systems, enhanced communication and the advent of online interactive legal services.
In addition, civil and criminal practitioners are experiencing the evolution of litigating online as the Court Service undergoes modernisation. Money Claim Online, a procedure for claims up to £100,000, enables proceedings to be conducted through the Court Service’s Web site. New Practice Directions have been adopted which set out rules for e-mail and the submission of documents electronically to the court.
The legal profession faces an interesting, exciting and challenging future as the pace and effect of technology increases. The introduction of technology is usually associated with new forms of management, better communication and the computerisation of a number of key workflows and processes; the ultimate objectives being to improve efficiency and save costs. However, in order to assess whether these objectives are being met, consideration must be given to the impact that technology has on working practices and productivity. At a time of change and increased competition in the legal services market, firms must address issues of efficiency and productivity at organisational and individual levels.
E-mail and the Internet
The use of e-mail and the Internet have irreversibly and profoundly transformed all aspects of working life irrespective of profession or industry. By enabling faster communication and distribution of information, e-mail was designed to improve efficiency and reduce costs. The first e-mail was sent in 1971 by a military computer but it is really over the last decade that it has become an integral part of our professional and personal lives. Over 360,000 e-mails are sent every second in the
E-mail has evolved from a way of communicating in a business to a way of actually doing business. It changes the way that people relate and interact with each other. It has increased accessibility by providing employees with a direct and immediate channel of communication to the managing partner or chief executive. Employees are more empowered through the ability to communicate upwards, downwards and across the organisation.
There are two fundamental aspects of e-mail: speed of creation and speed of delivery. Research has shown that it takes 30 minutes to compose and write a business letter and 5 minutes to create and send an equivalent message by email. Email is incredibly cheap and allows multiple messages to be sent at no extra cost. It facilitates mass distribution of information irrespective of time zones and geography and can develop closer ties with colleagues, other offices and clients. The Law Society Survey in 2002 revealed that 92% of firms use email for external communication and 77% of firms had received requests from clients to communicate by email.
There is no doubt that e-mail and use of the internet have vastly enhanced communication and access to information. However, despite these obvious benefits, there are menacing aspects of email and internet use. Unless used properly, email alters the culture of an organisation for the worse, leads to inefficiency in the workplace and can expose businesses and employers to a variety of legal liabilities.
What began as a way to enhance communication now dominates working lives. Email is regarded as one of the top three stress factors in any job as users become overloaded with irrelevant information and are overwhelmed by in-boxes that are out of control. Stress causes anxiety and frustration which has a detrimental effect on efficiency and productivity. Structured working days and practices have been hijacked by workers obsessed with checking their in-boxes for incoming mail. 79% of users read messages as soon as they are received. This completely disrupts the task in hand, concentration and working routines as days and hours are fragmented by alerts and flashes of new mail – on average every user receives a new email every 5-10 minutes.
Misuse and overuse of email and the internet largely goes undetected. The average employee spends two hours per day on non-work-related email and internet use. The cost of this to any organisation is significant. A recent survey revealed that 76% of employees use company time to search and apply for new jobs on the internet.
The culture of “no rules” permeates email and the distinction between personal and professional use is blurred. There is an informality about email that is similar to conversation. Content is less structured and considered than formal correspondence, is less likely to conform to house style or document retention procedures and more likely to be sent without managerial or partner sign-off.
Unlike spoken conversation, however, email creates a permanent dialogue where none would have existed previously. Even those messages that have been deleted or expunged from files and servers can still be recovered and in some cases used in court: the cost of discovery can be substantial. Users also overestimate the confidentiality of email. Sending an email is like sending a postcard as the sender loses control over who is able to intercept and read the message. The episode of the City solicitor a few years ago demonstrated that in a matter of minutes an amorous email sent to him by his lover had been distributed round London, within hours it was being read by hundreds of thousands of strangers from Tokyo to New York and in a matter of days it was mentioned on the front pages of the tabloid press and in the commentary section of the broadsheets
Unlike personal discussions, email dialogue takes place in a vacuum without any personal contact. Whilst it is a valuable communication tool, email is no substitute for face-to-face discussions or telephone conversation. However, studies have revealed that 80% of employees use email when another form of communication would be more effective or appropriate.
Research undertaken by psychologists has revealed that 55% of effective communication is delivered through visual clues such as gestures, eye contact and body language; 38% through tone of voice; and only 7% through content. Effective communication by email is wholly reliant on content and the potential for misinterpreting emails is immense. 58% of users believe that email gives rise to misunderstandings which can be heightened by different use of language, punctuation, typing skills, humour and cultural issues. Whilst email has broken down traditional lines of communication, it can reinforce superiority in organisations – those further up the hierarchy send emails that are poorly spelt or punctuated, thus indicating that they are too busy to give their full attention or time to the issue at hand.
Many businesses are now straining under the overwhelming volume of emails, including spam and other irrelevant information, in circulation. Not only does this hugely impact on the productivity of employees dealing with unnecessary mail but it vastly increases the costs of maintaining adequate data storage and back-up facilities. Audit results show that, on average, almost 50% of in-box content is irrelevant or superfluous.
Surveys carried out by the Law Society have revealed that the rationale of most firms behind the introduction of IT strategies was the improvement of working practices and business management, improving the speed and quality of service, reducing costs and meeting the demands of clients. However, rather than improving working practices, without a properly monitored and enforced e-mail and internet use policy, productivity and effectiveness are undermined. Businesses that have set up complex knowledge management systems are finding that many are ignored by employees who manage and store information using other tools. In addition to investing in expensive knowledge management systems, companies are increasing expenditure on storage costs for oversized in-boxes.
New Risks and Exposures
Technology has created new legal exposures for organisations and employers. Allowing employees access to the internet and email can put businesses’ assets, security and reputation at risk. Whilst cyberspace has the reputation of being unregulated, without time and geographical boundaries, there are legal boundaries and there are plenty of potential liabilities for firms and employers.
Businesses now face legal exposures arising from misrepresentation, formation of contract, defamation, copyright, and breach of confidentiality. However, many businesses do not have adequate cyber-liability insurance cover. The biggest action in the UK arising out of defamation by email was settled when Norwich Union publicly apologised in the High Court to a rival private health insurer, Western Provident Association, and agreed to pay £450,000 in damages and costs. Legal proceedings began when it was discovered that Norwich Union was circulating damaging and untrue rumours on its internal email system to the effect that its rival was in financial difficulties and being investigated by the DTI.
In addition to exposure for businesses, employers are increasingly finding themselves liable for issues arising from internet and e-mail misuse by employees. Under the doctrine of vicarious liability, an employer will be liable for the acts of its employees if carried out in the course of his or her employment. Generally speaking, as employees have been provided with computer hardware and both e-mail and internet access by their employer, any use will be viewed as “engaged in authorised duties” even if the mode of carrying out these duties is improper.
Employers who do not have a clear email and internet use policy that is monitored and enforced could face exposure to liability in the event of claims from employees of harassment on gender or racial grounds. The Sex Discrimination Act 1975 and Race Relations Act 1976 make it clear that employers are liable for the acts of their employees if done within the course of their employment, irrespective of their employer’s knowledge or approval.
In the employment relationship there is an implied duty of trust and confidence and if any employees are bullied at work, an employer will find itself in breach of this duty. Given the level of bullying at work that research shows exists, employers should include and implement an anti-bullying statement in internet and email use policies.
The distribution of obscene material is of course a crime. Irrespective of the legal position it is clearly inappropriate in the workplace and can also give rise to claims of harassment. Again, it is clearly in the employer’s interest to make sure there is a clear policy banning accessing, viewing and downloading pornographic images from the internet and that any employee in breach of this rule will be viewed as having committed gross misconduct.
Due to the speed and ease of sending information by email, there is great potential for breach of confidentiality by employees, accidentally or deliberately. Whilst employees are under a duty to render faithful service and not to disclose confidential information during their employment, unless there is express provision in their contract, this duty of confidentiality terminates on their employment coming to an end.
Policies, and Solutions
So what is to be done? Whilst many organisations do have guidelines that relate to the mechanics and formal aspects of using email, few have a policy that sets out best practice. Whilst the intention behind “email free Friday” is evidently a good one, without proper training and implementing best practice, this can lead to a comparative increase of emails on Thursdays and Mondays. Guidelines should cover email protocol, general housekeeping and acceptable personal use of email. In addition, a clear policy can protect businesses from claims arising from misuse and reduce exposure to cyber-liability and employment law claims. It will also ensure that emails are being stored in accordance with the firm’s document retention policy.
The Law Society has very recently published its “E-mail Guidelines for Solicitors” which are intended to assist solicitors achieve good practice in relation to e-mail and ensure compliance with Data Protection legislation. However, there is a school of thought that suggests that the guidelines do not go far enough: the guidelines recommend that firms consider introducing an e-mail policy rather than advising that it is vital to have a policy fully implemented.
Regular reviewing, monitoring and enforcement of email and internet policy are also important. This will re-educate the workforce over time and reinstate email as the business tool for which it was originally designed. It may also be necessary to retrain users on how to use email properly, for example in order to comply with storage and retention policies. It may be necessary to boost individual IT and computer skills as part of the introduction of best practice.
Core Competencies
For all solicitors, irrespective of their legal specialism, there is an increasing dependency on the use of IT and computers in the legal services market. Core IT skills and competencies are imperative for team and project work where offices and individuals are spread across the world, or the country, to enhance communication and allow for effective distribution of information.
The benefits are obvious. Users become self-sufficient, can work on the move, make better use of resources, are able to meet the increasing demands of clients and make better informed decisions on IT strategy. Individual productivity and efficiency can be improved and there can be a decrease in the cost of reliance upon support services. Effective use of IT and computer equipment by partners also reduces the amount of stress and frustration experienced at management level. It presents an organised and professional image of the firm and its partners to clients and sends a powerful message across the organisation that technology is being embraced by those at the top.
However, research has shown that many solicitors are reluctant to embrace technology and invest time in IT training. Dismal IT knowledge grinds productivity to a halt and exposes organisations to further costs in providing additional support services. Every unnecessary call to the help desk puts pressure on IT resources, needlessly increases expenditure and impacts on productivity.
Whilst almost all practitioners have experienced some form of IT training, this is usually ad hoc and inconsistent across the firm. With so much emphasis on fee-earning, many solicitors resist spending any time away from their desk to learn or update IT skills. Despite the huge investment in IT, few firms conduct audits, research into or reviews of IT skills and competencies.
Research has shown that where senior members of organisations invest the time to learn how to harness new technology, there is a dual benefit. They quickly recover the time invested in training and the organisation deploys its IT and support resources more proficiently. Better informed decision-making on issues of IT results in improved use of corporate resources and a decrease in running costs. Whilst for many lawyers the importance of fee-earning takes precedence over the majority of other tasks, individual bespoke coaching – “desk-help” – can provide the answer and minimise disruption to fee-earning activity.
As the market becomes increasingly competitive, and clients become more sophisticated and demanding, productivity and efficiency are integral factors for any firm seeking to exert its competitive edge in the legal market-place. As Lord Justice Brooke, Vice-President of the Court of Appeal and the judge in charge of modernisation, remarked during his address to the Law Society conference in September last year:
“Firms are often all too happy to move at the speed of the slowest ship. This fleet is now moving so fast that the slowest ships will get completely left behind unless their captains wake up and do something about things now. History tells us that the ships that got left behind tended to get torpedoed before they every reached harbour.”
At this time of change and transformation in the legal profession, those firms who do not embrace IT and address issues of efficiency and productivity at an individual and organisational level may find themselves “torpedoed before they ever reach harbour”.
Victoria Moore provides consultancy services for individual partners, senior management groups and employees through individual coaching, advisory sessions and seminars: victoria@mooreacademy.co.uk
