Proctor : August 2019
51 PROCTOR | August 2019 It’s not just the courts that are increasingly using technologies and minimising the use of paper. It’s also clients, other professions – especially accountants, new law graduates and government – that are moving away from paper. As trusted legal advisors, there is an imperative for lawyers to match the environment in which their clients, staff and the institutions of law and justice operate. The biggest concern for lawyers – ‘how can I keep my practice cybersafe?’ Cybersecurity is the biggest concern for lawyers, significantly higher than concerns about ethical issues. Information technology security is not perfectly safe, but threats tend to originate not from the use of technology but because of the weakness and failures of the human side. Law firms become vulnerable to cyberattack because of the following human involvement: • failing to update or change passwords • lack of training and education on how to be vigilant and what to look for when assessing threats • lack of judgment on recognising threats and being tricked into releasing information • insufficient risk management practices and systems. The paperlite office, if managed properly, can be more secure than the paper office. Cybersecurity is a risk that requires appropriate management and access to expertise to provide staff with training, education and system configuration. This is an area that is well-supported by Queensland Law Society. The second biggest concern for lawyers: ‘What about the ethics implications around records management?’ Lawyers have a duty to maintain records. Documents coming into existence during the retainer and for the purpose of the business transacted during that retainer should be dealt with as follows: • Documents prepared by the lawyer for the benefit of the client belong to the client. • Documents prepared by the lawyer for the lawyer’s benefit and for which no charge is made, belong to the lawyer. • Documents sent by the client to the lawyer, the property in which is intended to pass from the client to the lawyer, belong to the lawyer. However, the copyright may remain with the client unless expressly released. Record-keeping is a key concern for lawyers. Digital storage of the range of documents, including diary notes and diary entries, emails, attachments, safe custody, letters, court documents, consultant’s reports and expert workings, briefs to counsel, documents obtained on disclosure and discovery, non-party documents, client documents, linked files or parts of files, non-trust and account records and trust records (local and interstate) and digital data transfers can all be stored electronically. A small-to-medium law firm can store documents using its own storage, rather than accessing external storage systems such as the cloud, where ongoing costs, access and retrieval may present as hurdles. Not all records should be made digital- only; for example, if legal documents have been initiated through paper, then keep the documents as paper, but also scan and create a PDF copy. What if I don’t go paperlite? It’s worthwhile thinking about ‘What if I just want to stay paper-based? What does it mean?’ • The physical environment is more expensive to operate and maintain than the digital environment. Think of the costs of printers, photocopiers, physical storage, paper, toner and servicing of equipment. And what about the time spent physically searching documents manually? It’s also likely that external interactions will increasingly rely on paperlite, which will push back on to you printing costs. • There are now new graduates who have only; experienced the digital environment. Law practices that are proactively adapting to that environment are attractive to valuable legal staff. Such staff are also valuable to the practice; they offer potential for reverse-mentoring opportunities and offer some expertise in contributing to the evolution of the practice into the digital environment. What this means is potentially lost succession-planning opportunities. • Potential clients who themselves are operating within the digital environment want their trusted legal advisor to match their use and experiences of this environment. The paperlite office offers clients a more interactive experience of their matter and creates opportunities for communication channels other than phone calls and letters. • Operating a paper-based practice that also has to respond and interact with a digital world means that your office will bear the costs associated with both environments. On the flip side, there are unexpected and hidden consequences experienced by paperlite law firms including: • increased collaboration among staff as a function of increased access to document management systems • increased and more productive mobility – being ‘out of the office’ no longer means being unproductive • a more attractive workplace with increased productivity and resilience. Staff respond positively to the opportunities of flexibility. They also respond to the systems that are more accessible as a result of the technology. • increased loyalty – staff express responsiveness to the flexibility offered by a firm that effectively extends its reach through the digital environment • improved client relations as a result of opportunities to create and increase client engagement with their own case management through controlled access to digital documents. Paperlite is about using technology strategically to add both immediate and long-term value to the law practice. That value is gained through: • savings on not having to maintain an expensive physical environment • attracting and retaining valuable legal staff and administration staff • attracting and building valuable client relationships • creating and investing in systems to assist with ‘future proofing’ the practice. Resources Queensland Law Society offers a range of resources that include information on ethics implications, records management and cybersecurity. Visit the QLS Ethics and Practice Centre at qls.com.au/ethics for more information. PRACTICE MANAGEMENT This article is based on a presentation given at QLS Symposium 2019 titled ‘I want to have a paperless office – can I? How do I?’, by Townsville Magistrate Terrence Browne, a lecturer at the James Cook University School of Law; Clayton Utz Special Counsel Tony Deane, a member of the QLS Practice and Rules Committee; NextLegal Managing Director Steven Tyndall, and Associate Professor Caroline Hart of the University of Southern Queensland School of Law and Justice and a member of the QLS Practice Management Committee. The authors would like to acknowledge the participants at the Symposium who very generously contributed their comments and questions that have assisted with this article.