Whither (or Wither?) the Technology Lawyer?

Having hit the grand old age of 40, I have spent almost half a lifetime writing technology contracts. I am beginning to wonder whether what was “Computer Law”, and highly specialised when I first practised, has become simply another branch of standard commercial practice.  Has the specialism – and hence the profit – dropped out of being a non-contentious technology lawyer?

 

I will argue later that there has actually never been a better time to be a technology lawyer, but I do notice that it is harder to find newly qualified solicitors who want to practice in our area and that there are fewer mid-level assistants around in the market who would identify themselves with technology law.[1]  Why is IP, for example, still seen as being a “legit” practice area while “IT”, like the old lawyer in the joke, has “lost its appeal”?  Could it be that younger lawyers do not see that there is any long-term career in technology law?  Given how central to our lives technology is, would this not be a great irony?

 

It is of course a common observation amongst technology lawyers that our practice is curiously aligned to technology itself: that which was bleeding edge last year is today’s commonplace.  Once drafting software licences was the preserve of the dedicated specialist, now any commercial lawyer worth his salt can produce a software licence – and rely on a multitude of precedents.  (Once, of course, there were no precedents, and the technology lawyer lovingly crafted bespoke documents, starting with a blank (green) screen – or sheet of A4.)  With the publication of an outsourcing precedent,[2] has even that arcane world of practice been laid bare?  Are there no more mountains for technology practitioners to climb – and does this underpin my observation that newly-minted solicitors would rather go into, say, corporate finance than technology law?

 

Before I emphatically defend the value of a career in technology law, I want to suggest some of the obstacles we may be putting in the way of fresh-faced lawyers considering entering our field.  I look forward immensely to the howls of protest!

 

The silo Mentality

 

It was a truism, when I qualified in 1990, that first one became a good solicitor then one specialised.  Hence, I spent my first few years doing whatever came in the door – I was blooded by handling an MBO and I dabbled in M&A work as well as software licensing, system integration contracts and outsourcing deals.  Of course, the majority of these deals related in some way to technology, but their breadth was considerable and I learned (the hard way) how deals work, how clients tend to react and how to draft a contract from scratch which would underpin the deal.

 

Now, as firms become ever-larger, there seems to be an increasing pressure to label lawyers as soon as they emerge from their training contracts.  This is particularly true in the technology field, which has a bewildering range of sub-specialisms, from data protection to e-commerce (remember that?) to the cross-over between telecoms regulation and competition law.  While all of these are important, I merely question the true value of specialist knowledge applied by those without the broad experience of how clients behave and deals evolve in the real world.  Most technology lawyers develop some specialisms as their careers progress.  However, encouraging lawyers to become too narrow too early seems to me to risk doing them and their clients a disservice – and to jeopardise their ability to adapt and survive, of which more later.

 

A final observation on this point.  A sound knowledge of contract law and intellectual property law is (still) the pre-requisite for success as a technology lawyer.  In fact, for a long time I preferred to refer to myself as a transactional lawyer specialising in the technology sector, as opposed to being an “IT lawyer” – which brings us back to the need to be a good lawyer first and a good technology specialist second.  While there is now a considerable body of law which relates to IT and telecoms specifically, I still believe that the basic skill of the technology lawyer has to be an ability to apply general legal principles to the facts of a particular technology deal.[3]

 

The curse of due diligence – and an irrational fear of corporate lawyers

 

I have been fortunate in my career to work closely with two exceptionally talented technology practitioners.  They are very different in background: one was trained as a corporate lawyer but became interested in telecoms and outsourcing; the other started out as an IP litigator but is equally outstanding in the non-contentious field.  What they had in common was an encyclopaedic knowledge of a vast range of law and a flexibility of approach.

 

However, few of us are in their league and most of us are victims of our early training.  I qualified into a general corporate commercial department (albeit with a client-base of technology clients): I am lucky therefore to regard myself as being a jobbing transactional lawyer and am happy to be a “jack-of-all-trades”, or at least most technology deals.

 

By contrast, many colleagues have come from a background of contentious IP work, leading to the common fudge of applying the label “IP/IT” law to what we do.  I state above that a knowledge of IP law is fundamental for any technology lawyer.  However, many IP lawyers’ only experience of non-contentious technology work is to be drafted in to review the contracts in a data room on a major acquisition or to stay up all night for the privilege of an audience with an M&A lawyer in order to comment on some IP warranties.  And then to see their time being written off.  Because the terms “IP” and “IT” are often used interchangeably, younger lawyers can get the impression that all technology lawyers do is to service the corporate department: hardly an attractive career option.

 

Ironically, my experience is that the most interesting and challenging work for non-contentious technology lawyers is increasingly to be found at the intersection of “IT” and “corporate” law.  For example, an outsourcing deal I am currently working on is to be supported by some innovative corporate financing; another by a novel approach to securitisation.  Some of the most satisfying deals I have worked on have been for smaller companies seeking finance from private equity sources.  Internal, arbitrary department divisions in law firms can militate against technology lawyers working with their corporate, corporate finance and banking colleagues – another example of silos getting in the way of the growth of technology law.

 

Looking Forward

 

Of course, the high vantage point of the beginning of my fifth decade enables me to look forward as well as back.  I have no intention of packing in being a technology lawyer and hope to encourage many more junior lawyers to practice in our space.  I have looked at some of the reasons why I suspect that we have not sold ourselves as well as we could do within the profession, and some of the challenges we face.  I want now to turn to the positive and to some lessons I have learned and the reasons why I remain optimistic.

 

Adapt and survive

 

Most technology lawyers will have been through the same kind of metamorphoses that I have.  I started as a computer lawyer (doing some telecoms work, which of course was entirely different – no mention of “convergence” then).  I became an outsourcing lawyer (then called “facilities management”), and saw IT outsourcing move from “bureau” services to the “ASP” model (basically the same but with the Internet thrown in) to grid/utility computing.  It also widened to BPO and all the other sets of initials, became more international and “off-shoring” was coined.  At one point, I was a multi-media lawyer, but dropped that to be an e-commerce and Internet specialist – then, briefly but so gloriously, a dot.com lawyer.  In the early 2000s, when I had ceased to be a Y2K lawyer and the telcos had invested all they had in new infrastructure and new licences, I realised that the government was the only organisation with any money left.  I therefore reverted to being a public-sector procurement lawyer, which I had last been in the early days of “compulsory competitive tendering” and privatisation.

 

These days, I am working with banking and corporate finance lawyers on highly-regulated deals or those with plenty of other complications.   I have also discovered a new set of initials – MVNO[4] – to play with too.

 

This litany of labels is hardly unique.  In fact, it exemplifies why technology law, in my view, is one of the most challenging and satisfying areas of practice.  We constantly have to reinvent ourselves as technology, and the market, change around us – and as law and regulation struggle to keep up.

 

This is the first challenge I would offer to those thinking of practising technology law – and I still think there is a career to be made out of accepting that challenge.

 

It is all about relationships, not contracts

 

I started by referring to myself as someone whose job is “writing technology contracts”.  Perhaps the greatest lesson I have learned – and it is a humbling one for the legal wordsmith – is that a good contract cannot of itself make a successful deal.  Many lawyers take what I tend to dismiss as a “kitchen sink” approach to drafting, leading in one case to a monster outsourcing contract which filled 12 lever-arch files.  I was called in to re-negotiate that deal, on behalf of the customer.  The customer was dissatisfied with the way the service provider was acting and the quality of the services it was receiving.  Naively, I asked why the customer had seen fit to create a nearly 2,000-page contract.  The response was that it was “necessary to manage the service provider”.  I gently pointed out that my presence tended to suggest that it wasn’t fulfilling that aim.  I also suggested that, rather than enter into yet another change control note or sending another notice of breach, it might be wise to invest a little time in actually communicating with the service provider.

 

I also faced one occasion where I told my client that, although the contract I had negotiated was as sound as I could make it, my belief was that, as neither party trusted the other, the deal was likely to founder – and so it did.  Did I lapse from being the objective lawyer?  Probably.  Did I give the right advice?  I believe so!

 

I do not contend that, as legal draftsmen, we are redundant or that we should not strive to create the best, most precise yet flexible, contracts we can.  I am suggesting that where technology lawyers will continue to earn their fees is by bringing to clients a wider insight of how these deals work (and why they go wrong), rather than our purely legal skills.

 

Conclusion

 

In the days where “mission statements” became all the rage, my then firm adopted the private credo “Have Fun, Make Money”.   I think that, if technology lawyers are to live by that mantra, it is essential that we neither create artificial specialisms within our area of practice nor become so specialised as a group that we fail to engage with other lawyers and other practitioners.  Paradoxically, by avoiding over-specialisation, we may be ensuring that technology law will remain a viable and attractive area of practice into the future.

 

Rory Graham is European head of the Technology & Outsourcing Group of international law firm Brown Rudnick, and is based in London.  He is a past legal director of the National Outsourcing Association and co-author of books on