The Clearest Picture of the Future Practice of Law Comes From . . . Non-Lawyers

The Clearest Picture of the Future Practice of Law Comes From . . . Non-Lawyers.

Ross Mayfield wrote a post called Standard Weblog Employee Policy
in which he lamented the current state of affairs for policies that
govern employee bloggers. Ross's concern was not so much what should be
in the policies (although he obviously has an opinion), but more the
fact that there are no “standard” guidelines for these kinds of
policies. What's worse, he fears, and I agree, is what will happen when
lawyers jump in with deluxe blogger policies.

Ross sums up the concern as follows:

“Enter the lawyers. The problem is most lawyers didn't study under
Lawrence Lessig or Jochai Benkler, read Cluetrain and Gonzo, and are
card carrying members of the EFF. They come from the school of fear and
greed. Just think of the billable hours possible for surveying every
risk, asserting control and property and taking what they can from the
market. They will come up with their own agreement, backed by their
opinions. The human voice of the company will be muffled and the
enterprise gains little benefit.”

I'll add that the problem is further complicated when a company
compartmentalizes the legal project as an “employment law matter.” In
that case, it really becomes a hit or miss proposition whether the
lawyer drafting the policy knows anything at all about blogging and the
blogging policy is likely to be modeled on the hardware and software
use plicy or email use policy, whichever is handy. Even though I
practice in the area of computer law and like to believe I have some
knowledge of blogging and the related issues, I would predict that, in
most cases, a company would not seek to obtain recommendations from
someone like me. As a result, Ross's fears are more than warranted.

More specifically, he says:

“Right now, they can point to the Sun Policy on Public Discourse,
Groove Weblog Policy and the evolving Corporate Weblogger Manifesto as
examples. They can talk their executives into considering it by
pointing to Jonathan Schwartz, me (heh) and Bill Gates any day now. But
its still an emerging issue.

When an employee proposes external enterprise blogging, she needs to
kill off policy debate by pointing to an open and accepted agreement.
Either that or wait until a court decision on corporate exposure.”

Although Ross gives the two options, it is clear that no one other
than lawyers prefers the second option. The practices of lawyers are
increasingly becoming a significant “friction” in processes that people
would like to streamline. It's one thing when the friction we bring
into the process is legitimate risk management that addresses real
concerns and issues, but it's quite another thing when the “friction”
is just plain “friction” that doesn't seem to help anyone out other
than lawyers.

Ross suggests an approach where there may exist one or more
approaches that are generally acceptable, given an employer's approach
to legal risk management and its willingness to accommodate its
employers, its ability to see the benefits of blogging, etc. In a
manner similar to, for example, the GPL or the BSD License, a company
might choose a standard approach and use a standardand easily (and
cheaply) available agreement that matches its desired approach. Rather
than have lawyers customize all sorts of elaborate language, the
company could use lawyers to help them understand the legal risks of
the different approaches and any unique issues that might need to be

Ross has stated something very important and Robert Scoble
and others have picked up on the points he makes. Among other things,
he has given us a good practical example of the ways that law and
software do have some tendency to merge and the general concern (see,
e.g., CAN-SPAM) that laws and lawyers trail too far behind where most
people, not just technologies, are today. The longer lawyers offer only
the option of waiting three or more years for a court to decide issues
that everyone knows have practical solutions that can be quickly
implemented, lawyers practicing in traditional ways risk becoming
increasingly less relevant.

Mayfield's post should be studied carefully by lawyers.
Increasingly, lawyers will see clients tire of waiting for lawyers to
bring them solutions to new problems and seek to find solutions that
have some industry-wide acceptance and ask their lawyers to work within
the constraints of those solutions. For what it's worth, my own
interests take me increasingly toward models of delivery of legal
services that look more like software applications than the traditional
document preparation that lawyers have done for years. 


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