Back to the Future

I recently received a reminder from the Oregon State Bar that under a newly-adopted rule, all members of the Bar must maintain and keep on file with the Bar Association a valid, working email address. My initial reaction was “Welcome to the 90’s”. No one ever accused the legal profession of being the first out the chute to embrace new technology. On reflection, I realize it’s deja vu all over again.

When I graduated from Law School back in the mid-1970s, virtually all attorneys had offices, physical addresses and phones. Most had secretaries, receptionists, and/or those new-fangled (and aggravating) answering machines. However, “virtually all” isn’t the same as “all”. A few of my classmates (we were all poor and in debt; but that’s another story) decided to live in and practice out of their flower-covered, old VW vans. They visited their clients (most of whom resided in the county jail) or met them in coffee houses and drove the van to the courthouse. If they needed to call someone, pay phones were easily accessible. Pleadings and correspondence? Maintain a PO box or pick it up at court. It was, after all, the sunset of the Age of Aquarius.

There were no laws or rules requiring the use of what, by then, were standard and assumed business practices. Eventually, new rules were promulgated to require availability through normal communication channels.

My guess is that the new Bar rule regarding email is a similar story. Almost all of us have been using email for years, if not decades. Somewhere we hit a “tipping point” where enough people use email that it became a de facto standard for communication – and that was years ago (imagine ECM and E-Filing without email!). Now we are just getting around to implementing rules to require what has become standard practice.

What was cutting-edge yesterday is today mainstream; and tomorrow it will be mandatory. In the eighties, kids started taking computers to college. By the nineties, colleges were requiring incoming students to have computers (and then issuing to them, along with dorm keys and initiation handbooks). By the 2000s, internet access was first used, then required, then issued as part of the cost of tuition. We recently attended a going-off-to-college party for a young lady. At her small college, students are each required to have a computer, a smart phone, and a tablet (furnished by the school). Students cannot enroll in classes, view schedules, read texts, attend classes, and so on without this technology.

Courts are on the same path, just not quite as far along. Just as with college texts and papers, court documents are increasingly no longer on paper. Courts are moving from providing optional access to electronic (instead of paper) files and records to the reverse – access is to electronic documents, with only optional (and perhaps more expensive) access to paper documents (e.g., Paper on Demand). In a recent posting on his iPhone J.D. , Jeff Richardson reports that the 50-lawyer, Minneapolis-based Bassford Remele law firm has issued iPads to every attorney in the firm.
Without predicting a time frame for reaching the “tipping point” – if we have not already – what is almost certain is that the day will come when courts will ASSUME every lawyer and judge (and the vast majority of the public) access court records electronically. Those who revise their rules to allow for the possibility of ECM may very well have to repeat the revision process down the road to accommodate universal, ubiquitous ECM.

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