And as always, I’ll post the column here as well:

For the record, I don’t intend to buy one. At least, not for a few more years and not until the inevitable upgrades, improvements, fixes, and content distribution changes have run their course. But well before the iPad 3.0 arrives, the original version will have had a serious impact on the computer industry, on the production and distribution of content, and yes, on the legal profession.

I won’t recap everything that’s been said about the iPad in the mainstream and legal communities — Reid Trautz and The Wired GC have two solid takes — but it’s worth noting that the reaction has been mixed (and not just to the name, which I think will fade to non-issue status in relatively short order). The iPad has been criticized for its failure to shift paradigms, to be the next big thing that the iPhone was. It’s just a small Netbook, or a big iPod Touch, say the critics: not a game-changer, not everything it could have been. So let’s start with a quick word about what the iPad does appear to be.

The iPad is a mobile content consumption device. It isn’t optimized to play music, record videos, create documents, take photos, make phone calls, or do any of the other functions whose absence has been criticized. I suspect that’s for two reasons. One, Apple already has a fleet of devices that do these things very well and has no interest in rendering them redundant or obsolete. And two, the convenient consumption of content is actually an extraordinarily deep and rich field that no one has, up until now, really set out to harvest. The iPad is optimized to allow its owner to access as much content as possible as easily as possible: it’s light enough to carry around with ease, equipped with a screen big enough to read with ease, and set up to access the internet with ease. That’s an immensely powerful functionality — when people are able to get whatever they want easily and conveniently, it changes all their expectations and creates completely new standards of service and satisfaction.

That’s all well and good, you say. But does the arrival of the iPad mean anything for lawyers? I think that in three different ways, the answer is yes.

1. Mobility. In the beginning, there was the briefcase. If a lawyer had to venture outside the cozy confines of his law office, he stuffed the relevant papers and books into a briefcase and set off (if he was heading to a trial or discovery, a junior would trundle after him pushing a mini-trolley stacked with boxes). Then came the laptop, which allowed the lawyer to carry not just the relevant files for his case, but also all the files in his office. And now has come the iPad, which will allow the lawyer to access everything he has ever produced in any location (through MobileMe or DropBox) and on the entire internet. Through each evolutionary stage, the lawyer can transport more and more information on ever-smaller and lighter items, until he gets to the point where he is essentially a walking law firm.

So I think the one trend that the iPad will really accelerate is the movement away from the physical plant of a law firm. Manufacturing still requires workers to come together in a centralized factory, but the same can’t be said of knowledge industries like law. There are fewer and fewer reasons for lawyers to come to work every day in the same facility — physical law libraries are dwindling, files and documents reside on servers or in clouds, and smartphones have untethered lawyers from offices and landlines. As hourly measures of productivity begin their long decline, “face time” at the firm will become less important. Collaboration, the benefit most often touted for lawyers’ proximity to each other and a key to legal services in the future, is and will become more possible through multiple means, most of which involve distance. The iPad, along with its coming competitors and future iterations, has a good chance of being the breakthrough technological development that finally does away with “four walls and a door” as the default definition of a law office.

2. Publishing. As noted above, the iPad is designed for the consumption of content, not the creation of it. Lawyers create more content than the average professional and tend to consume somewhat less, but what they do consume is largely the work product of legal publishers. Case law reports, legislative updates, legal research databases, leading texts, legal periodicals, and so forth, all constitute the heart and soul of legal publishing houses. The iPad is a mobile reader with internet access, and the obvious way in which lawyers will use this device is for these sorts of materials. This will fundamentally change the way in which legal publishers go about distributing their content, just as the iPad will change (and is already considered the only viable option to stop the collapse of) consumer newspapers and magazines.

The thing about legal information is that you need it when you need it, not when you can get back to the office or find a wi-fi spot for your laptop. Hence the appeal of legal research tools for mobile devices: just before the iPad premiered, FastCase generated a lot of buzz in the blawgosphere by announcing a free legal research app for the iPhone. But the iPhone, as even its adherents will admit, is too small to be used for extensive text review (and the BlackBerry even more so). The iPad promises to make legal information instantly accessible and convenient to read, so it won’t be long before lawyers consider mobile electronic access the default format for legal information and reject printed materials that will seem bulky and cumbersome. How soon will this happen? If nothing else, give it three years for the current crop of law students, who will be among the profession’s earliest iPad adopters, to make their way into practice, then see what happens. That’s three years in which legal publishers need to shift their internal processes to accommodate new delivery, pricing and updating mechanisms for their content.

3. Design: Last fall, The Economist ran an article (subscription required) about the coming battle among Microsoft, Google and Apple for supremacy in cloud computing. Each of the contenders has an advantage: for Microsoft, it’s money (although neither Google nor Apple is exactly cash-poor), and for Google, it’s technology (although again, smart people abound in all three companies, as well as in dark-horse contenders like Amazon and Facebook). But if I had to bet on a winner — if not in the cloud, then in the industry generally — I’d say it’s Apple, for only one reason: design. Apple beats Microsoft, Google and every other competitor when it comes to the user interface — or, more colloquially, the customer experience. People enjoy using Apple products, and “enjoy” isn’t a word you normally associate with technology. At the end of the day, money, intelligence, functionality and so forth become ubiquitous and undifferentiated — your killer app can be topped almost before your new product is on the shelves. But a great user experience is a difference-maker: not only is it hard to replicate, it almost inevitably leads competitors to imitate rather than fight.

You can probably see the application to law firms. With few exceptions, lawyers are very smart and law firms are very good at delivering legal services. “Excellence” isn’t a competitive advantage in the law and hasn’t been for decades. So firms look for other ways to stand out from the crowd. Unfortunately, extremely few succeed. Most law firms operate in almost identical fashion: they pitch clients the same way, complete their tasks the same way, bill their work the same way, and treat their clients the same way. Any client who has had the opportunity to sample the offerings of multiple law firms can attest that, for practical purposes, they really are all the same. No wonder clients, especially these days, are so focused on price and especially on predictable fees: they’re hunting for something, anything, they can use to tell one law firm from another.

There’s only one silver bullet here — only one thing that a firm can do that its rivals can’t match and its clients will love: the customer experience. From marketing to client intake to processes to results to invoices to follow-up, how a firm relates to its clients throughout the life of a retainer is the most important element of all. The design of your firm — the experience your clients have before, during and after retaining your services — is critically important, because it’s unique to your firm, it’s 100% focused on the customer, and it can’t be copied. My Edge International colleague Gerry Riskin wrote about this more than three years ago in an article called “Intelligent Design for Law Fims“:

You’ve heard of practice management — but do we discuss “Practice Design”? Not yet. If law firms truly want to capture the attention of the marketplace, to stand out for all the right reasons, they need to start thinking more about how they present themselves to the market and how they deliver their services. By committing time and resources to law practice design, innovative firms would open up whole new frontiers of competitive advantage over their rivals.

Apple doesn’t get everything right, but it does ensure that everything it makes and everything it does puts the customer experience front and center. How many law firms can honestly say that? How many lawyers can say, and back it up with evidence, that the ways in which they work, communicate and bill their services are designed and delivered with the client’s complete personal satisfaction in mind? If your firm wants to have a fighting chance at making it through this coming decade in one piece, then it needs to take a lesson from Apple: design matters. If the customer is delighted, you win.

The iPad doesn’t do everything, but it doesn’t need to. It does what it does really well, and it makes its customer feel good doing it. There are a lot worse mottos your law firm could adopt.

Right now, everything I’ve written at Law21 is also stored on Sympatico’s email servers somewhere. I’ve also saved all those messages into a Word file, which is stored on my hard drive and therefore on Carbonite’s backup system too. Later this month, I’ll probably copy that Word file onto a thumbdrive as well. (Printing out all 180,000 words on the blog would require more than 400 pages, so I think I’ll stop short of taking backup to that extreme.)

The reason why I take all these steps was amply illustrated yesterday when URL-shortening service Tr.im shut down with no advance warning. All of the stats it was tracking have disappeared, and all the links it created could be gone by Jan. 1, 2010. If you’ve been following me on Twitter, this could be problematic, since I’ve been using tr.im links for a few months now. (I switched from tinyurl.com and eventually from bit.ly simply because tr.im bought me one extra character to play with,vital in Twitter’s 140-character universe.) It’s a bigger problem for me, though, because I’ve been using Twitter as a micro-publishing tool, so I’ll now need to go back, click on all those tr.im links I posted, and resave them using some other method. That’s assuming, of course,  Twitter keeps my old posts — Robert Scoble, for one, isn’t sure they even exist anymore.

Tr.im’s sudden demise is a wakeup call to every lawyer who blogs, twitters, or otherwise employs social media as marketing, communications, publishing or client relationship tools. (Not to mention those who use URL shorteners for legal citations, as this engaging conversation at Slaw demonstrates.) We all learned this lesson the hard way back in the late 1990s and we may be about to learn it again: the online ecosphere is incredibly fragile.

Massive platforms that appear ironclad-strong from the outside can be hollowed out or ripped up on a moment’s notice. Look at Bloglines, the first and only feed reader I’ve ever used — Michael Arrington notes today that it could be on its last legs. Or look at Friendfeed, which has its devotees among lawyers — it was bought by Facebook yesterday and could quite easily disappear within Facebook’s gigantic digestive system. Twitter itself was taken down with alarming ease last week by a hacker attack aimed at just one blogger (and Facebook didn’t fare much better). WordPress is and has been a fabulous platform for this blog — but if it disappeared tomorrow, what would happen to Law21?

Lawyers are constantly advised to use these new online social tools, as well they should. But it’s easy to forget that Facebook, LinkedIn and Twitter are not permanent features of the landscape — especially since none of them has yet come out with a sustainable business model. You do take a risk when you invest time and money in them. In no way is that risk big enough to justify giving up on these tools and platforms — but neither should you regard them as failsafe. As Scoble says, “whenever you put your data in other people’s, or other company’s, hands, you are taking a pretty significant risk.”

Scott Vine at Information Overlord chimes in to predict that the e-book reader (Kindle, Iliad, Sony, etc.) represents the light at the end of the tunnel for legal publishers: “[I]f I were a lawyer, who could have all the legal journals I wanted and all the legal texts I wanted – displayed as they would be in a ‘traditional’ print run – all on one device that I could keep in my desk or take with me to client meetings etc., then I would be a very happy bunny.”

Like Scott, I think e-book readers are the future of legal publishing, especially if their creators take to heart some of Seth Godin’s many recommendations for the Kindle. The second-most important application for e-readers in the legal context, I think, will be the hyperlink: the ability to leap from the book on your lap to a relevant page on the Net with 0ne click. You could click from a judicial interpretation or expert analysis of a statute or regulation directly to the most current version of the statute or regulation itself; imagine how that would reshape publications like annotated statues or criminal codes. Or think about footnotes on steroids: instead of just a reference to another work of significance, you get a link to the work itself.

But I think the killer app for legal e-books will be RSS. As every law librarian and legal researcher knows, the drawback to law books lies in post-publication developments. Looseleaf updaters have been around for ages, and have never become less laborious to insert one page at a time. Legal publishers tried issuing new CD-ROMs every month, but I don’t think that really caught on. Online research services remain the most reliable source of updated legal information — but not only do they remain expensive, they also require you to seek out the information you want. But what if the information you needed sought you out?

An RSS-enabled legal e-book would update itself. An authoritative Court of Appeal case at the time of publication might later be overruled by a Supreme Court; within days or even hours, the e-book would automatically change to reflect that. The proclamation of statutory amendments or the coming-into-force of regulations would download themselves while you sleep. Bulletins from tax authorities or rulings from securities commissions would appear with that little yellow “New” tag. A legal book — be it a casebook, a reporter series, an annotation — would become a constantly self-refreshing authority, truly the latest word in the law.

Legal publishers wouldn’t be able to sell annual or subsequent editions of popular texts; but they would be able to open up a whole new market of real-time knowledge refreshment. The speed and accuracy of updates could become  points of competition between publishers (a category that could include the established giants as well as upstart individuals or bloggers).  In addition to downloading the new Supreme Court ruling, a publisher could also offer access to an analysis of the decision by its in-house expert, perhaps as a value-added part of the user’s monthly subscription that enables the downloads. Online CLEs regarding a recently revised subject area could be advertised as part of the update.  Or how about access to relevant wikis to which other e-book users contribute?

In ways like these, the legal e-book could become a dynamic, full-scale legal knowledge portal — 24/7 Net-connected, automatically updated, linked to a community of writers and readers, plugged in to a collaborative legal knowledge world well beyond the written word. That would do more than revolutionize the legal publishing industry — it would help change how lawyers view and use legal knowledge.

First, if you haven’t checked out JD Supra lately, you might have missed this handy new feature: a Facebook application for streaming your legal documents. JD Supra Docs allows legal professionals who publish their work on JD Supra to make their documents and professional qualifications automatically available to their friends and contacts on Facebook. Every time you post a new document on JD Supra, it will automatically stream to your Facebook profile. Steve Matthews nicely sums up what JD Supra is doing here with the term “social legal documents.” That’s a concept worth leaning back and thinking about for a while — it represents an important part of the law’s future in a wired world.

And speaking of wired lawyers, Richard Granat of the eLawyering blog dropped me a line to let me know about the ABA Law Practice Management Section’s James I. Keane Memorial Award for Excellence in eLawyering. James Keane founded the ABA’s eLawyering Task Force, which looks at ways lawyers can use the Internet and other electronic resources to deliver legal services to the “latent market” of people of moderate means. One of my core beliefs is that latent legal services represents the future of the profession — lawyers will lose much of their traditional work to technology, commoditization and new competitors, but they’ll gain much more through the innovative provision of proactive or constructive services to currently unidentified and untapped client markets. So I’d like to help encourage the kind of service recognized by this award, about which you can learn more right here.

Finally, Susan Cartier Liebel of Build a Solo Practice LLC, a very deserving ABA Journal Blawg 100 finalist, decided to provide her own “Best of the Blawgosphere” list, on which Law21 is humbled to appear. Then she challenged all of us to do the same: create a list of recommendations of those blogs you believe others should learn about and publicize on your own blog.  Let’s take the idea behind the ABA 100 and expand it.  Let’s make December of every year the month we introduce our readers to new blogs of note. Let’s give everyone who blogs for education or love of writing and who does so with consistency and quality a pat on the back for a job well done.

Victoria Pynchon of the Settle it Now Negotiation Blog was first out of the blocks with this great list, so I thought I’d give it a shot as well. To paraphrase Susan, this is by no means an exhaustive list, just a sampling of blogs that are doing great work and that deserve and will repay your time and attention. All these blogs, to my mind, merited the ABA’s notice, but not all made the final list; I’ve provided a link where you can cast your “people’s choice” vote for those that did. In no particular order, here they are:

the [non] billable hour — Matt Homann has a gift of seeing the legal profession from exactly the right perspective to make us think differently about how and why we practise law.

3 Geeks and a Law Blog — For my money, the best new law blog out there. Greg Lambert, Toby Brown and Lisa Salazar are thinking years ahead about lawyers and technology.

Adam Smith, Esq. — Extraordinary insights about global law firm management by Bruce MacEwen, who might be the best pure writer in the blawgosphere. Vote here.

What About Clients? — You don’t throw around a word like “fearless,” but that’s exactly how to describe Dan Hull and Holden Oliver’s blog, which demands unapologetically that lawyers put clients first. Vote here.

Build a Solo Practice LLC – Already mentioned above, but Susan’s blog has joined Carolyn Elefant’s touchstone blog My Shingle as absolute must-reads for solo and small-firm lawyers. Vote here for both.

Empirical Legal Studies — The legal profession has an aversion to metrics. Prof. William Henderson is rectifying that by showing that we can, in fact, measure what we do. Vote here.

Strategic Legal Technology – Legal process outsourcing isn’t about lowering costs so much as it’s about rethinking how legal services are produced. Ron Friedmann is quite simply the LPO thought leader.

KM Space — What I just said about LPO applies equally to knowledge management, the key to the profession’s future. Read Doug Cornelius and you’ll get why KM matters.

Law Is Cool – To my mind, a glaring omission from the Blawg 100’s Student list. I’m politically distant from this student-run blog, but its voice and perspective, especially on social justice issues, is irreplaceable.

In Search of Perfect Client Service — Patrick J. Lamb’s Valorem Law Firm walks the talk on client-oriented legal services, and his blog is an invaluable resource for lawyers who want to follow.

Finally, I’ve been remiss in not yet drawing your attention to three Canadian blogs that made the Blawg 100 cut. You should go vote for them, and you should definitely read them. (Update: please also consider this to be their 2008 Clawbies nominations.)

FP Legal Post — Jim Middlemiss’s team at the Financial Post’s blog tracks corporate law developments in Canada and worldwide, often irreverently. Maybe the only example anywhere of mainstream media getting the blawgosphere. Vote here.

Precedent: The New Rules of Law and Style — Welcome to the future of legal publishing. Precedent is also a young lawyers’ magazine, the rare one that authentically possesses that demographic’s voice and perspective. The online columns are terrific. Vote here.

Slaw — The talent on this roster, led by Simon Fodden, is unbelievable. The contributors’ list is a who’s who of Canadian (and increasingly, global) law bloggers. It’s not just the best law blog in Canada — it’s one of the best law blogs, period. Vote here.

What’s interesting is that most conversations about “reducing costs” are one-dimensional. They focus on the client getting the same kinds of services from the same kinds of law firms at a lower price; or, more concisely, the same-old same-old for less. They don’t envision rethinking the source of the services, or more importantly, the ways in which those services are produced. Ron Friedmann points out that when looking at ways to control costs, in-house counsel tend to focus on pricing elements — rate freezes, flat fees, discounts, alternative fees, and so forth — while ignoring the potential savings of reforming the process by which legal services are provided:

Where, for example, are efforts to require matter budgets, application of best practices, automation, risk analysis with decision trees, document assembly, and proper use of KM systems?… Real costs savings mean changing the process, focusing on how lawyers practice. The profession needs to overcome its “I am an artiste” attitude and develop better ways of working.

Both lawyers and clients have succumbed to the long-standing lawyer assumption that the price of legal services is directly connected to its cost. Lawyers produce work today pretty much the same way they produced it 60 years ago: through the individual-focused, time-insensitive application of principles and formulas to fact situations. Some time back, they figured out how much it costs them to do that, built in a percentage for profit, and arrived at a selling price for clients. And every year or so, to reflect both inflation and inflated earning expectations, they raised those prices. It’s an insulated, self-sustaining system in which price = cost + profit margin.

Here’s the really important thing that’s happening right now: the price of legal services is finally becoming uncoupled from the costs lawyers incur to produce it. Partly through efforts to identify the underlying value of a service to the client (something unrelated to lawyers’ cost), and partly through the relentless advances of technology and globalization, legal services price has been liberated from lawyers’ costs and is starting to establish its own gravity and orbit. Consider these examples just from the past week or so:

- In-house counsel getting legal work done differently: “[W]hat caught my eye, however, was the part about less work going to outside firms. … If inside resources are relatively flat (a high likelihood today), then in-house counsel are doing something. Among many possibilities, here are four that come to mind: (a) pulling back on more generic work (redefine as low-risk and perhaps non-legal); (b) trying to re-use or re-cycle some work, and have it done by non-legal personnel (including clients); (c) using technology to automate or streamline work; or (d) have it done by “non-law firm” firms, whether here or offshore (flat rate or fixed price).” (Wired GC)

- In the downturn, more legal work outsourced to India: “The nature of the work already has changed. When Ankita Mullick joined Pangea3 three years ago from a Mumbai law firm, she spent time researching U.S. laws on drug labeling. This year, she has done work for banks on auction-rate securities, which have been a factor in the crisis on Wall Street. ‘The sophistication is increasing,’ says Ms. Mullick.” (WSJ)

- Outsourced patent work to hit $200M in 2012: “The Indian patent services industry has grown significantly in the past three to four years to include about 50 vendors with 1,500 professionals, according to a release about the new report. … The area lends itself to such overseas outsourcing because it typically entails ‘manpower intensive and process-driven services.’” (law.com)

- Practice support lawyers to become online service: “This week, I saw an online demo from Practical Law which has taken the PSL concept, married it to technology and is offering it as an online service. … Under an annual subscription fee, you can run searches, browse subjects, compare international laws and even generate quality first-draft documents. And when you hit the wall and need assistance, they have a team of PSL-like lawyers available to help you. They’ve termed this approach ‘know-how” services….’” (3 Geeks & A Law Blog)

- Social media offering opportunities for new firm models: “Although social media will not cure cancer or the common cold, it will provide the opportunities for the new law firms to emerge. It will be the arena where the new leaders will identify, develop and build their tribes. We are already experiencing how social media and social networking are allowing lawyers and clients to easily meet and connect. And the rules are changing every day. The era of the institutional client, who was handed down, without thought or concern, from senior partner to junior partner, year after year, is dead. Clients are no longer constrained by the ‘top’ firm in their marketplace. Clients can easily go out and explore their options.” (Legal Watercooler)

- Corporate KM systems pulling way ahead of law firms’: “Law firms will struggle with this concept, as ’savings’ means less time to complete legal work, which means lower billables and revenue. A key piece of [Conoco]’s system is compensation rewards for those who save the company money. Law firms will actually benefit from more efficient work processes, but since the efficiencies benefit clients and are not rewarded via compensation, law firms will struggle to drive this type of knowledge sharing and change.” (3 Geeks & A Law Blog)

Law firms have, from time immemorial, justified internal expenses with the line, “We’ll pass the cost on to the client.” We’re now entering an era in which whatever it costs a lawyer or law firm to render a service has at best a tangential relationship with the price that service commands. In order to turn a profit, firms will be forced to streamline their costs of production, whatever they might be. “Price” is what the ever-more sophisticated market will bear; “cost” will be whatever the lawyer incurs to deliver its services; and rarely shall the twain meet.

It’ll be the need to turn a profit in the face of all these liberating forces that will finally force firms to take Ron’s advice and rethink how they work. All the price discounts in the world won’t keep it at bay.

The obligations set out in the opinion, while not unreasonable in any broad sense, set a markedly higher standard of conduct than many firms are currently maintaining. I think they’re noteworthy for two reasons: one, because firms with offices in New York (which include many global giants) are now bound by these standards (which could well become the de facto standard in other jurisdictions); and two, because we’re going to see a lot more of this: regulation of lawyers’ conduct regarding their work and their clients.

The NYC Bar asked itself the following questions:

What ethical obligations does a lawyer have to retain e-mails and other electronic documents relating to a representation? Does a lawyer need client permission before deleting e-mails or other electronic documents relating to the representation? When a client requests that a lawyer provide documents relating to the representation, may the lawyer charge the client for the costs associated with retrieving e-mails and other electronic documents from accessible and inaccessible storage media?

Read the whole opinion for the complete answer — it’s not long — but the gist is that standards that currently apply to storage and access of paper documents apply equally to e-documents. That might sound like common sense, but think about the impact. The electronic documentation that any given client matter produces is massive: emails to clients and colleagues, draft versions of memos, timekeeping records, Blackberry messages, and so on. If you printed out every e-document and added it to the case file (and please don’t), that file would be about ten times higher.

Here are some highlights of the opinion’s specifics (emphasis added throughout):

Some e-mail systems automatically delete e-mails after a period of time, so the lawyer must take affirmative steps to preserve those e-mails that the lawyer decides to save. In addition, e-mails generally are not coded, or otherwise organized, to facilitate their later retrieval.  Thus, a practice with much to commend it is to organize saved e-mails to facilitate their later retrieval, for example, by coding them or saving them to dedicated electronic files.

Otherwise, it may be exceedingly difficult and expensive for the lawyer to retrieve those e-mails, and, as discussed in this Opinion, the lawyer must not charge the client for retrieval costs that could reasonably have been avoided.

In New York, a client has a presumptive right to the lawyer’s entire file in connection with a representation, subject to narrow exceptions.

It is prudent for lawyer and client to discuss the retention, storage, and retrieval of electronic documents at the outset of the engagement and to consider memorializing their agreement in a retention letter.

These five bolded directives and recommendations represent practices and principles that most firms honour in the breach rather than the recognizance. Here’s what John had to say on the subject:

[M]ost law firms acknowledge that they are doing a poor job of ensuring that they capture all relevant electronic records. (Mainly, they refer to e-mails, but many firms capture voice mails in Outlook as electronic files.)

In the old days, when all correspondence was in paper form, one’s secretary ensured that all relevant documents were filed in the paper file. These days, however, the filing responsibility tends to fall on the lawyers themselves. Some of them work out some sort of division of labour with their assistants, some try to do it all themselves (and then agonize as to how they docket the time!), and some give up and don’t even bother.

In principle, this opinion simply records what “should” be taking place already. The problem is that, in fact, not all of the relevant matter-specific electronic documents are getting filed.

Most large firms have instituted a document management system (DMS), so in principle (again), all firm-authored documents are saved to the specific matter folder in the DMS. But because of the cost involved, not all firms have a DMS. Accordingly, if there’s no DMS, each lawyer and assistant stores documents “somewhere” on the hard drive. (And then good luck trying to retrieve them later!)

As well, even if there is a DMS, some lawyers, for various reasons, are reluctant to have their work product available for their colleagues to find via the DMS search function. Those people will therefore tend to save their work in private workspaces that are not accessible to others.

In practice, it is safe to say that most firms fall short of the requirements set out in this opinion. The interesting thing will be seeing what firms do to (a) bring all relevant electronic documents into their filing systems, and (b) get the recalcitrant partners to save their client work product onto the DMS.

Three points here. First, lawyers have never taken data organization — or knowledge management, if you will — quite as seriously as they should. That era might now be ending: information has swelled to the point where it simply has to be organized to be of any use, and the profession’s standard-setters are finally starting to integrate technological advances with ethical expectations (cf. the CBA’s new Guidelines for Practising Ethically with New Information Technologies).

That’s going to force change on firms, and not just on the IT or KM people. As John says, lawyers will need to radically overhaul their view of documentation, and come to accept that the default setting for client-related documents of every kind is a filing system, not the recycling bin. That’s going to be a tough transition to make and a nigh-impossible one to enforce — but that’s where things are headed.

And that’s the second point. What we have here is the collision of two forces: a regulatory edict that law firms must organize e-information for clients’ benefit, running square into lawyers’ longstanding unwillingness to organize their data for anyone’s benefit, let alone their clients. The question is: who’ll come out on top?

For the longest time, the smart money has been on lawyer intransigence. By sheer weight of momentum and the absence of countervailing forces, any number of poor practices and attitudes in law firm culture continue to roll right along. Countless challenges to hourly billing, for example, have wound up flattened underneath the behemoth, and after so many inaccurate pronouncements that “It’s different this time,” it’s tempting to believe that nothing will change here either.

But you know, maybe it is different this time. “Deregulation” is 2008’s dirtiest word, and correspondingly, the powerful regulator that keeps the rich elitists in line while looking out for the little guy is on the rise. I think law firms are going to start feeling the regulatory pinch rather more than they have in the past.

Regulators are going to be given stronger mandates and more resources to pursue them — along with the clear message that if they don’t do a good job of it, the government will. Ask the Law Society of England & Wales about how well that can turn out. Watch to see whether and to what degree law firms with New York connections are held to account to this ethical opinion — that’ll be the canary in the coal mine.

And that brings us to the third interesting thing: if regulated standards of conduct do increase (and are enforced), then a law firm’s ability to brand itself in this regard will be reduced. Right now, a law firm can sell ready access to a client’s files and information, served up easily and with a smile, as an exceptional and differentiating client service. Firms that provide clients with extranets, from which they can access and download data 24/7, are still on the cutting edge today. Well, it’s now conceivable that such extranets will become mandatory in the near-to-mid future.

This one ethics opinion alone has the potential to reshape and redefine the standards for a law firm’s entire legal work product process. If this trend expands to include strict regulatory attention to the lawyer-client relationship itself, then all bets are off.

Published yesterday, the article posited a relative absence of women blawggers (rather ironically, considering the term “blawg” was coined by Denise Howell) and suggested various hypotheses to explain the shortage. Within 24 hours, the article had touched off responses across the blawgosphere, from Nicole Black, Ann Althouse, Mary Dudziak, Christine Hurt, Diane Levin, and Laurie Mapp, along with Scott Greenfield and Robert Ambrogi.

The upshot of most of these posts is that the writer failed to look deeply enough into the legal blogosphere, restricting her research to the most highly trafficked sites and those of large law firms. While that’s true, I also think there’s something to be said for male law bloggers’ tendency to link to other men disproportionately more than to women. I think it’s also worth noting that if there is a serious paucity of women bloggers, it’s mostly inside of law firms, especially the larger ones. I may be verging on cynicism here, but I think that’s largely because two things law firms don’t tend to take very seriously are the careers of their women lawyers and the utility of blogs.

Several bloggers also pointed out that until this article asked the question, it had never occurred to them to think about the gender of the other bloggers they read or linked to — it was of the sheerest irrelevance. My own blogroll includes bloggers like Carolyn Elefant, Susan Cartier Liebel, Connie Crosby, Merrilyn Astin Tarlton, and Penelope Trunk, but until I made that list, I had never thought about the male-female breakdown. Ditto for the people I follow on Twitter, including most of the above as well as Victoria Pynchon, Mina Sirkin, Donna Seale, Kelly Phillips Erb, and too many others to list. But just because I haven’t thought about blawggers’ gender before isn’t an excuse to not think about it now, and I’m glad for the opportunity to learn about more women law bloggers worth reading.

But what really struck me among all the posts on this topic, and what I’m really interested in writing about today, came from Ann Althouse. Responding to the suggestion in the original article that women avoid blogging because they’re more prone to professional or personal attack, she wrote: “The internet is not going to coddle and comfort you. In fact, the internet wants you out of here.” [Emphasis in original] While the delivery is a little harsh, I think this is a powerful and profound statement, and every lawyer who intends to build her or her profile and brand online needs to be aware of it and accept it.

The blogosphere is intensely, almost fanatically competitive. There are millions upon millions of blogs out there, and each of them needs readers’ attention to survive the way you and I need air. There’s only so much of that attention to go around, producing what Davenport and Beck called the attention economy — the decision to view or listen to something has become a significant economic choice. You could also analogize the blogosphere to the Cambrian explosion, an unprecedented and unexplained flourishing of life on Earth on a massive scale about 500 million years ago. Either way, there are only so many resources to go around, and if you really want to make a go of it in this environment, you’re in for a tremendous fight.

Some of the sadder (to me) comments in all the posts about women law bloggers came from lawyers who started blogs and gamely maintained them for as long as they could, but eventually gave up after generating very little traffic and attention. I’m a writer at heart, and that heart goes out to anyone with a manuscript unfinished or a blog abandoned because they grew discouraged by the lack of audience interest. But while some of these projects could have been saved with better marketing or friendlier circumstance, many failed on the merits — either their subject or their style, or both, just wasn’t compelling enough to earn attention credits from an increasingly busy, demanding and fickle readership.

I’m not suggesting it should be any other way, mind you — if all the 900,000 blog posts in the last 24 hours actually got read, the global economy (such as it is these days) would lurch to a sudden halt. And every environment throws up obstacles to ensure that only the truly talented and committed reach anything like a rarefied atmosphere: Seth Godin’s The Dip talks about how medical schools create the buzzsaw barrier of Organic Chemistry in undergrad to weed as many people as possible out of the pre-med stream. These are realities of every competitive environment, and they apply to the blawgosphere too.

Law blogging proponents can be a little cavalier in their standard recommendation that you “start a blog” — I’ve certainly been guilty of that sometimes. But lawyers who want to use blogs to build their brands and promote their profiles need to understand just how challenging a path they’re choosing. Even assuming you’re a really good writer and you know your subject area really well, you need to be realistic about these cold facts:

* Other lawyers are blogging about this too. Unless you’ve chosen an extreme niche, your chosen field is very likely already occupied or soon will be. Check out all the blogs tracked at the ABA Blawg Directory or LexMonitor for a sober assessment of your playing field.

* The noise level on the Internet is staggering. Everyone on the Net is yammering at everyone else to pay attention to them, and users are always on the edge of being overwhelmed. Legitimate SEO strategies are indisputably important, but appreciate that your ideal readership is always a little deafened.

* Your readers read more than just blogs. This is the single biggest mistake in every publishing medium: magazines assume that their readers only read other magazines, newspapers think they only compete with newspapers, bloggers compare themselves only to other bloggers. Everything that is printed, broadcast, sung, illustrated or otherwise meant for a sensory target is part of the attention economy. You’re up against YouTube and Extreme Home Makeover whether you like it or not.

* The Internet demands commitment. Millions of blogs are abandoned every day, and the Net brushes them aside like litter. What the Net wants from you is a sign that you’re willing to stick it out through the bad times (and there’ll be bad times, believe me). Blog readers don’t just check out the post Google has led them to — they check out how long you’ve been posting and how frequently you post. If you’re in for the long and steady haul, readers are likelier to trust you and return to you.

Look, I’m a strong believer in the Chuck Jones school of creative motivation. Jones was once asked whether his Warner Brothers cartoons were meant for children or adults. “I don’t draw them for children and I don’t draw them for adults,” he replied. “I draw them for me.” At the end of the day, the number of people in your Delighted Audience has to be at least one: you. And nobody has ever said a blog is only as worthwhile as the number of readers it has: Rees Morrison, for one, has said he blogs as much for his own records and to facilitate his own thinking, and doesn’t blog to attract clients or generate work.

But if you want to blog as a way to promote yourself — and I really think every lawyer should at least seriously consider doing so — also seriously consider that it’s not as easy as falling off a log. You’ll find yourself, as we all tend to do, checking your daily visits log and counting the number of RSS subscribers, and wondering how to raise them. You’ll find yourself (or a partner, colleague or spouse) inevitably asking about the ROI on this project. You’ll wonder why, even with good content and steady visitors, you (or even your whole gender) can seem invisible to people writing about the legal blogosphere.

If you’re not prepared for this beforehand, then blogging can be a deeply dispiriting experience. But if you are prepared, and you’re both realistic about the challenge and committed to the goal, then the rewards can be extraordinary. The Internet doesn’t want you here –but you can want to be here more.

If you feel like following my own twitter stream, please do. I’m not the busiest Twitterer out there — as I suspected back in May would be the case — but I do use Twitter to post links to law-related articles or developments that wouldn’t merit a full-scale blog post, as well as to ask questions and post neat or unusual stuff that comes my way.

And if you want to get into Twittering in a larger way, I can’t do any better than refer you to a great post today by Adrian Lurssen of JD Scoop, who lists 145 lawyers and legal professionals on Twitter worth following. Many of the names there are already on my Follow list, and many more soon will be. Check it out, and find out where your own Twitter value lies.

CBCSports.ca is averaging two million page views a day. A year ago at this time, the site was getting about one million views a week. The CBC’s live streaming and video-on-demand services are receiving close to 250,000 hits daily. …

At NBC.com, it took only four days to surpass the entire Athens Olympics in page views. Beijing has 291.1 million views so far, compared with 229.8 million for all of Athens. On the first day of the Athens Olympics, NBC had 65,346 video streams. For Day 1 at Beijing, the number was 1.65 million.

The Olympics are the perfect webcast event — numerous events taking place simultaneously, each with its own devoted audience. In the past, networks had to choose the one event likely to garner the highest ratings and televise it, to the chagrin of the long tail of other events’ diehard fans. But with the web, the broadcasters can “televise” as many events at one time as they like on separate streamed web pages, with the added viewer bonus of reruns and replays on demand.

For the last few years, all the major networks have been poking around with the Internet like a new toy that they haven’t quite figured out how to use yet. The Olympics should prove to be the tipping point at which the networks (and their advertisers) realize an important truth: television is only one medium through which content can be delivered, and compared to the web, it’s a limited, inflexible, single-channel medium. The CBC’s Scott Moore reported a conversation with the IOC’s Jacques Rogge: “We both agreed that it is not the wave of the future. It’s the wave of the present.”

Is this still a blog about the legal profession? Yes, it is. And I think there’s an important lesson here for lawyers: we’ve all been thinking about the Internet too narrowly. To the extent lawyers use the web, it’s mostly for marketing purposes (websites, e-newsletters, the occasional podcast or videocast), with a scattered few setting up extranets and the rare foray into web-delivered services. Like the networks, lawyers have looked on the Web as at best a useful promotional tool and R&D project, and at worst a source of scurrilous, low-cost competition.

We need to change our thinking about the role the web plays in lawyers’ professional services. We need to consider that the traditional channels through which we’ve interacted with our clients (expensive in-person meetings, conference calls, unencrypted reply-all e-mail chatter) and served them (research memos commissioned by partners, teams of associates beavering away on drafts, juniors locked away on document review, all billed out by the hour) don’t necessarily deliver the maximum value to our “viewers” — the clients who want maximum flexibility and efficiency from us.

The web holds the power to remake lawyers in its image — to refashion the profession into one where commodity products are available 24/7, specialized services have their own dedicated streams and support, experienced knowledge is expressible in subroutines and algorithms, and multi-party collaboration is a matter of course. Traditional TV will disappear because the web will make it seem intolerably primitive; something very similar is going to happen to the current model of lawyer-client interaction.

Here’s an exercise to prepare you for what’s coming: imagine you’re an upstart, ragtag collection of non-traditional lawyers — unestablished, innovative, opportunistic and bent on taking down the legacy competition. You don’t have offices, secretaries, a law library, any of the tools and trappings that today’s lawyers take for granted. How will you defeat them? What service and delivery models can you summon up that will expose the vulnerabilities, flaws and chinks in your rivals’ businesses? How can you use the web as a stone-and-sling to drop Goliath in his tracks and take his clients?

Once you’ve thought through this sort of plan, start implementing it in your own practice, bit by bit. Because the competition you need to defeat isn’t other firms or other lawyers — it’s the widely accepted conventional wisdom about how lawyers conduct business.