Technology and Law

Shifting ground in technology and culture are changing the legal profession



Illustration by Brittany Inglese

In 1972, when Bruce Felmly, then a fresh-out-of-law-school attorney, walked into the state’s largest law firm, electric typewriters, Dictaphones, carbon copy paper and white-out were the norm — maybe even cutting-edge in some backwoods New Hampshire law firms. Much has changed in the last 44 years.

Law firms have become larger, more regionalized and competitive; technology has stretched the work day and put mountains of information (and considerable misinformation) at everyone’s fingertips; and the demographics of the profession have turned the old-boy network nearly upside down.

Still, the fundamentals are the same. “We are doing the same stuff,” says Felmly. “We’re dealing with people’s worst nightmares and problems and trying to solve them.”

But they’re doing it a whole lot faster, and possibly while sitting at the beach with a laptop. In 1962, 10 years before Felmly joined the McLane Middleton law firm in Manchester, a computer pioneer came up with a scaling formula to predict the rate at which computing power doubles. Moore’s law, as it’s known, states that technological might doubles every two years.

Attorneys who practiced in the 1970s and earlier describe a laborious and slow physical routine. Documents were often dictated into machines and then transcribed by secretaries. Each change, except the smallest ones (which could be hidden by white-out and typed over), required the entire text to be re-typed. Research — whether it be on state statutes or case law history — was done through books or at one of the few legal libraries. All communication was done through the US Postal System over days, if not weeks.

Felmly and his son, Peter Felmly, who practices in a different firm today, use technology that frees them from the production-line aspect of the old days. New Hampshire statutes and case law are now available online, and each day seems to bring new gadgets that keep law firms connected, better organized and responsive to the needs and impulses of clients and co-workers.

The increasing use of technology can create complex ethical issues when it comes to the representation of clients. One example is how to appropriately deal with so-called “metadata,” which can inadvertently show prior edits to documents that may be confidential, but end up in the hands of opposing counsel. It is an evolving (and murky) area of law governing lawyer conduct, showing that while technology may streamline and add efficiency, it also adds an arena of complexity to the practice, especially for older attorneys who aren’t used to the new developments.

The other challenges are more basic — such as access to near-unlimited information and an expectation of constant communication. As Bruce Felmly says, the “pressure and pace” can be an “anchor that ties you to the job.”

The increasing use of technology can create complex issues when it comes to the representation of clients. 

You might be attached at all times to the job, but not necessarily at your office desk. Since email and other technical advances allow work to be done almost anywhere — in bed at 11:30 p.m. or while on vacation — knowing when to say “enough” can be tricky.

The key is how you manage it, the younger Felmly says. He credits his father with setting an example for successfully balancing work and life. Though his dad was constantly busy, he was nevertheless always at his games and home for dinner. “Even though I’m sure he went back to the office after we went to bed,” he adds. 

Demographics

This new focus on balancing work with family may well be rooted in the changing gender demographic profile of today’s legal profession.

In the 1970s, New Hampshire’s legal profession had was not very inclusive. It was almost an entirely male club of sorts with tightly defined social circles, and it was shielded from outside competition. It stayed that way until 1985, when the US Supreme Court shot down New Hampshire’s law requiring state residency for bar admission.

Veteran Laconia attorney Patrick Wood, who practices with his son Ethan Wood, remembers those days well. Courtroom etiquette included referring to fellow attorneys as “Brother so and so,” which was in reference to the shared brotherhood of the Bar Association. As women entered the profession, the term slowly faded away, but culture turns slow. Clients and jurors, says the elder Wood, “expected the attorneys and judges to be men.” These days, he adds, the bar and the courtroom “look more like the community.”

Today, women can be found at the top of the profession. Currently, the state’s highest-ranking judge is Supreme Court Chief Justice Linda Stewart Dalianis. But, overall, there are still more men than women. According to the American Bar Association, nearly two-thirds of all practicing attorneys are male. Law schools admissions offices are seeing that gap narrowing, reporting that classes are nearly equally divided between men and women. Still, while the demographics are changing, and more women are practicing, the legacy of the “old boys’ club” mentality leads to persistent income and opportunity gaps that continue to affect women, according to the recent gender equity survey of the New Hampshire Women’s Bar Association.

The legal profession not only looks different and uses vastly different tools; the business model has fundamentally changed. Regionalization and specialization are popular trends, and this has led to many lawyers leaving the field. In New Hampshire, studies indicate that the number of lawyers has decreased in recent years, and that those who remain are making less money.

“Consumers expect an instantaneous response to everything,” Pat Wood says, “and you’re expected to know a lot more than 35 years ago.”

They also are far more cost-conscious and have access to ample free information and discount do-it-yourself services. A crowded court system has encouraged easier and earlier negotiations process like mediation and binding arbitration.

 “The old legal services model simply required you to know the law,” said Ari B. Pollack, a Concord attorney, in a 2014 article in the New Hampshire Business Review. “Now you have to know how to apply it to specific circumstances to avoid or manage risk.”

Peter Felmly’s practice is a perfect example. He works with school districts providing them with employment law counseling and training services primarily, as he says, on “how to stay out of trouble.”

Despite the razzle-dazzle of innovation, these lawyers all agree that the practice of law is personal and rooted in earned trust.

As Bruce Felmly advises young attorneys, “Remember, your professional status and reputation takes years to build [but] can be completely destroyed by one decision. Safeguard and protect it. “

All of this takes time even in a world that doesn’t tolerate idle or wasted minutes.

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