Recently, TLIE was asked to participate in a series of Y2K seminars sponsored in Houston, Dallas and Austin by the State Bar of Texas, entitled "The Year 2000 Problem: Computing the Legal Risks for Attorneys and their Clients." I served as a panelist on two of those occasions, where lively discussion occurred regarding ethics and malpractice issues as a component of the larger Y2K picture.
In addition to discussion of some of the office practice management matters, the hot topic emerged as the evolving and amorphous standard of care to which lawyers might be held. Perhaps one of the most fitting (and laugh-provoking) suggestions came from someone in the audience. Figuring the cost is about the same, just buy new systems and forget about paying for compliance analysis and remedial work on existing systems.
In previous issues of the Advisory, TLIE has offered suggestions on office management and evaluation, and precautions in providing legal services for clients dealing with Y2K matters. In this issue, we turn our focus to the standard of care, given the difficulties lawyers face in anticipating what a reasonably prudent lawyer could or would do under the same or similar circumstances. At this point, the standard of care cannot be derived from case law because it is limited and evolving, and the full array of legal problems that might arise out of Y2K is not known.
In short, we are in a phase where "Y2K Law" is largely a self-taught effort and the available sources of information are widely scattered. Suffice it to say that attorneys can hardly be held responsible for failing to become experts in computer applications and industrial "fixes" for non-legal Y2K problems. In working with their clients facing Y2K issues, most attorneys ultimately might serve them best by recommending the engagement of experts who are familiar with the technology, and by consulting with lawyers who specialize in intellectual property law concerning computer technology.
Here are some of the resources that we can suggest for your investigation, realizing that the list is not comprehensive and is continually subject to change.
PUBLICATIONS:
The Year 2000 Problem and the Legal Profession: Managing the Risks, Anthony E. Davis & Robert H. Spencer, Ph.D., American Bar Association (1998).
This handy and relatively brief publication contains a self-audit process and compliance questionnaire, and an answer and analysis sheet. In regard to legal malpractice, the authors make a couple of worthy suggestions. The first recommendation is that lawyers who are not active in computer law should attend at least one program covering nontechnical explanations of the Y2K issues and the implications for the lawyer’s practice area and clientele.
The second recommendation is the judicious use of engagement letters, in particular the use of a detailed description and discussion of the scope of legal services to be rendered. For example, it might be appropriate for a firm expressly to exclude Y2K liability for due diligence advice as a part of merger and acquisition work, as being outside the scope of the engagement. This publication includes some checklists and a sample letter to a vendor providing services to a law firm, and may be ordered through the State Bar of Texas Law Office Management Program (www.texasbar.com/lomp or 1/800-204-2222), or through ABA Publication Orders, 1/800-285-2221 (fax 312/988-5568), http://www.abanet.org/lpm/catalog.
LISTSERVE:
You can join a Y2K listserve and be inundated with email concerning inquiries and responses shared by attorneys watching the Y2K industrial, legislative, and legal developments.
The Practising Law Institute sponsors a listserve, the PLI Year 2000 Law List, email PLI-Y2KLAW@PLI.EDU, http://www.pli.edu. To subscribe, send a message to: listserv@pli.edu and type in the body of the message: subscribe pli-y2klaw [YOUR NAME], and leave the subject header blank. Email arrives daily for your review or reply concerning pending Y2K lawsuits (no legal malpractice cases have been observed at this point), SEC and legislative developments, inquiries about forms and proposed language to use, insurance coverage issues, and such. For someone who has the time to peruse this information, it provides a good connection with attorneys who are attempting to stay up-to-date with current developments.
WEBSITES:
www.abanet.org/tech/ltrc/2000/y2ktech.html
The American Bar Association page for technical Year 2000 information.
The home page for the American Institute of Certified Public Accountants: provides a Y2K link as related to accounting issues.
The website for the Securities & Exchange Commission.
www.microsoft.com/year2000/ or www.microsoft.com/y2k/
For technical partners or computer support staff, this resource provides information on making in-house Microsoft products (including operating systems) year 2000 compliant; also provides access to product readiness information and a referral to other Microsoft links, none of which specifically addresses Y2K issues concerning legal services.
Compliance information for law firms using Novell NetWare as its network operating system.
Extensive information on compliant software and procedures to test applications (including access to a free year 2000 test program).
Comprehensive site by Peter de Jager which includes access to the Law Center for the Year 2000.
This magazine resource provides another list of additional Y2K resources available on the web, concerning various industries (banking, health management, real estate etc.), but none specifically concerning law offices or legal services.
EVENTS:
In addition to the resources mentioned above, this magazine endeavors to provide up-to-date weekly events listings. Research Editor, Candace Feit, has requested email (cfeit@defense.com) notices of events scheduled on the Web or in particular communities, to include in the publication and online.
Gives access to the schedule of Y2K CLE events sponsored by the Practising Law Institute.
VIDEO:
"The Year 2000 Problem: Computing the Legal Risks for Attorneys and their Clients," January 8, 1999, produced and distributed by the State Bar of Texas PDP Department, 1/800-204-2222.
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