Wednesday, April 6, 2011

Legal Services Act comes to US

UPDATE 4/5/11:  The ABA released an issue paper through its Commission on Ethics 20/20 seeking comments on allowing Alternative Business Structures (ABS).  As the paper states it is looking at how "core principles of client and public protection [can] be satisfied while simultaneously permitting U.S. lawyers and law firms to participate on a level playing field in a global legal services marketplace that includes the increased use of one or more forms of alternative business structures.”  Basically this would allow for active participation of non-lawyers in law firm operations and business models.  The smart folks at Legal Futures have a good overview here.

North Carolina State Senator (and lawyer), Fletcher Hartsell, Jr., introduced a bill into the NC General Assembly that seeks to allow non-lawyer ownership of law firms – known as Bill S254.  UK’s John Flood asked the question briefly “[h]as the US finally adopted the legal services act?”  Those familiar with the LSA know that it is a transformational law within England and Wales that is changing the landscape of the legal profession – to what degree remains unclear.  The ABA Journal also reported on this NC bill simply providing the name of the State Senator and the basics of the bill.

While the NC bill is referred to the Judiciary Committee (and I admit I am not a NC parliamentarian so have no idea on the course this will take or time line) it nonetheless represents at least some effort here in the US to change the way in which law firm ownership is controlled – moving from an lawyer only private equity partnership model to non-lawyer owned share-based model.  

Who cares and what could this mean?  Well it is worth noting that the bill in its current form only allows up to 49% ownership of nonlicensee (non-lawyer) so control of any organization pursuing this model would still rest presumably in the hands of licensees – barred lawyers.  While not as significant (yet) as the LSA it nevertheless is a serious effort to alter the way in which firms are structured and operated.  While I am not sure what Senator Hartsell’s motives were for this I do hope that they were similar to that of the UK’s Ministry of Justice – as stated on its home page:
 The Legal Services Act reforms the way legal services in England and Wales are regulated and puts the consumer interest at the heart of the regulatory framework.
 It is worth noting that Senator Hartsell himself is a lawyer and is a named partner for his firm Hartsell & Williams, P.A. – what can be considered a small regional firm.  I note this as this is not a Big Law initiative  - something that I at least thought any movement on this topic would originate from. 

More to come . . .

UPDATE:

Most recent articles:

 1. Forbes - expanded coverage

 2. The Lawyer - quoting Georgetown Law's Mitt Regan
 3. Legal Futures - who contact the NC Bar for more info



Monday, April 4, 2011

Proportionality in Ediscovery: Getting Beyond the Academic and Practitioner Perspective


The concept of proportionality in discovery is not new.  In fact it has been around for awhile and I will not add to the technical or academic dialogue here.  I have spoken on this recently at the ACEDS conference and will be talking more about this at the upcoming InsideCounsel SuperConference.  

Today I am at the Enterprise Data World conference and perhaps that is why I am thinking 'data' in terms of of bits and bytes.  The vast array of information contained in data is staggering and the proliferation of data across society and in our organizations continues to accelerate.  The folks at this conference are struggling to get hold of this data and organize it for better quality and accessibility.  Ediscovery, to this crowd, would be a small fraction of the overall challenge they are tackling.  

So in this post I am seeking to simply frame proportionality as an inevitable development resulting from the profound expansion of the data-verse (data universe) not to mention social media.

Point 1: The expanding digital universe will exceed 35 zettabytes by 2020, IDC predicts.
In 2009, global diital data topped 800,000 petabytes and was projected to reach 1.2 mil­lion petabytes in 2010. Storing 1 million peta­bytes on DVD would generate a stack of discs that reaches the moon and back. However, that rate of growth—62% in one year—pales compared with IDC’s prediction that the figure will top 35 zetta­bytes (36.7 million petabytes) by 2020, or 44 times as much as 2009. That stack of DVDs would reach halfway to Mars.
(following graphic originally posted by Tech News Ninja here)


Point 2: Usage of Social Media is increasing: (from comScore's US Digital Year in Review 2010)

Point 3: Social media represents significant ediscovery challenges:


The SCA is a formidable obstacle for parties looking to collect data from a social network.  Often the only option is to seek voluntary waiver by the person of interest.  Needless to say, more often that not any request to collect and analyze this type of data will need to be targeted and precise so as to avoid privacy concerns and other rights.  If the information is available on a public-facing portal of a social network then the collection may be easier to accomplish though the ability to do a targeted collection is somewhat limited by the user interface and/or local API.  Further it is difficult to think of this dynamic and changing data as a "document" under traditional ediscovery practices and so reviewing and analyzing presents unique challenges.

Point 4: Data Governance is becoming a stronger practice and discipline - it is also on the rise: (graphic created by DAMA.org)



Conclusion: Data - how we use it, how we access it, where we create it - is changing.  All of this leads to more and more data from more and more sources.  The MDM/Data Governance movement is seeking to organize data inside organizations and seeks to make information (which is what data contains and transports) more accessible.  So while the universe of data grows so does the ability to seek and capture only the relevant or useful information (See graph below for a non-scientific illustration.)  So proportionality could eventually be "built into" our ediscovery methods and practices - it simply will not be feasible any other way.