THE CHANGING LEGAL ENVIRONMENT AND THE CONSEQUENCES TO THE LAW FIRMS

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CHAPTER TWO THE CHANGING LEGAL ENVIRONMENT AND THE CONSEQUENCES TO THE LAW FIRMS

 Introduction

Several factors are challenging the ingenuity and creativity of lawyers and the legal environment compelling law firms to rethink their structures, roles, mission and the manner in which they carry out their business. Progressive law firms are adopting a business-oriented focus in the practice of law and are investigating alternative ways of providing cost-efficient services that may sharpen their competitiveness and broaden their influence within the legal industry and the global economy. The discussions in this chapter is centred around two research questions that seek to address the issues raised in sub-problem 1 of this study:

• How is the legal environment changing?
• What are the consequences and challenges of the changing legal environment to the law firm?

To put these issues in their perspective, it is proper to start with a brief description of a law firm.

 What is a law firm?

A law firm can be described as a business entity formed by one or more lawyers to engage in the practice of law and the effective and efficient creation and delivery of legal services to clients. Lawyers are both advocates and advisors. As advocates, they represent their clients in criminal and civil matters by presenting evidence and arguing in court to support their client. As advisors, lawyers provide objective and learned counsel to clients concerning their legal rights and obligations. Lawyers are competent in general legal principles and procedures and in the substantive and procedural aspects of the law and have the ability to analyse and provide solutions to concrete legal problems.
Law is a knowledge-based profession and lawyers are classic knowledge workers (professionals with legal knowledge and skills superior to that of an ordinary person). Law firms apply a body of specialised knowledge to client’s unique problem to provide a solution.
The general requirement to practice law in most jurisdictions is that one must have at least a first degree in law after which he/she would be initially admitted to the profession as a student lawyer (pupil) depending on the regulations governing the lawyers’ jurisdiction of practice. In Botswana the training of lawyers is a joint responsibility of the Law Society and the Department of Law at the University of Botswana. Competition for admission to study law is more intense than other areas of study in the social sciences at the university. To practice law in the courts of Botswana, a person must have completed a five-year law degree programme, be admitted on the roll of practitioners and must have obtained a practicing certificate unless he/she is exempted from obtaining the same. Sections 18-28 of the Legal Practitioners Act envisages a twelve months professional training period after the law degree. Commonwealth citizens are also allowed to practice law in Botswana provided they fulfill the requirements stipulated in Section 5 of the Legal Practitioners Act.
The Law Society in Botswana created on 2 August 1996, under the Legal Practitioners Act, 1996 is the supervisory professional body that regulates and oversees the conduct of lawyers in their professional work. Membership of the Law Society is compulsory for practitioners who hold practicing certificates; those in the Attorney General Chambers; and those employed by the Government or a statutory corporation (Section 56 of the Legal Practitioners Act). A lawyer sells his/her expertise and knowledge in legal matters. The main source of income is the lawyers’ time that he/she spends in deploying knowledge in the service of clients (Lambe, 2003).
Lawyers acquire knowledge from internalising valuable information gathered during legal studies and legal research and through expertise and experience from learning on the job. Most often even after qualification from the law school, lawyers continue to develop their intellectual capacity and professional skills by acquiring specialised` knowledge in particular areas of law and legal procedure and by solving legal problems. Law firms are learning organisations and lawyers are always in need of accurate, up to date information and “snapshots” of law at particular points in time. If a lawyer ceases to learn, he/she would not be able to provide precise, unbiased and expert advice to the client or present the client’s case convincingly and confidently (Leckie, et al., 1996). This may explain why lawyers tend to address each other as “learned friend”, “learned colleague” or “learned lawyer.”
In order to be able to analyse and solve legal problems, lawyers are obliged to develop their intellectual capabilities, reasoning and textual analysis (Leckie, et al., 1996; Best, 2003). Professional skills such as legal research, judicial problem-solving, analysis, application of the law to relevant facts, negotiation, drafting, advocacy, interviewing and general skills such as, business management, communication, team work, client relation skills, are skills required to build up a competent lawyer (Collins, 1994, Tjaden, 2001).

Organisation of law firm

Most law firms are organised around sole proprietorship and partnerships. In a sole proprietorship, a single lawyer is responsible for all the profit, loss and liability of the firm. A partnership is the relationship that subsists between two or more persons carrying on business in common with a view to profit (Mozley & Whiteley, 1998). Partnership is seen as a price in a tournament in which the winner forgo immediate returns to the value of their knowledge in order to reap the gains of property rights in the long term (Baden-Fuller & Bateson, 1991; Rebitzer & Taylor, 1999). In the traditional partnership model, the entire partners share equally in the profit of the firm after account has been taken of the cost of running the firm. Increasingly, modern law firms are adopting a two-tiered partnership model consisting of equity and non-equity partners (Susskind, 2003). Equity partners own stakes in the firm, share ownership and liability and are eligible to a share of the firms’ annual profits. Non-equity partners on the other hand, are generally paid a fixed salary higher than that of lawyers working in law firms without partnership status and are granted certain limited voting rights with respect to the firm’s operations. Lawyers working in law firms without partnership status are most often referred to as “associates,” “fee earners” or “junior lawyers.” In Botswana these lawyers are known as “professional assistants.” Law firms are most often organised in such a way that each partner works closely with a number of associates and trainees who normally refer to that partner (Kofoed, 2002). One of the criteria for election into a partnership is for a lawyer to have demonstrated “thought leadership.” That is, he/she will explicitly be assessed to have contributed significant knowledge and ideas to the firm.
Law firms may also employ paralegals (law librarians and legal assistance), clerical, and administrative staff to whom they delegate activities. Schoenberger (1995) outlines four organisational modes for legal practice: the mega-firm (large professional firms having more than 1000 lawyers) providing trans-national legal services; medium size firms (10 to 200 lawyers); the small firm with (2 to 10 lawyers) and the sole practitioner. Using the above distinctions as a rule of the thumb, all the law firms in Gaborone, Botswana could be classified as generally small because they have less than 10 lawyers. Statistics from the Botswana Law Society as at October 2007 shows that law firms in Botswana are either sole proprietors or limited liability partnership and that the size of the firms varies from one to ten lawyers (Law Society of Botswana, 2007).

Changes in the legal information environment

Rapid advances in information communication technologies and changes in the business environment have resulted in accelerated changes in the legal environment. In the following section, the forces and the changes that it has brought about to the legal environment are identified and discussed.

The shift from paper-based to electronic sources of information

Traditionally, the practice of law has been built around law books and print technology. For a long-time, legal research facilities were centred on the paper-based law library, the precedent bank and the collection of press cuttings. Berring (1997) observed that the law library was considered as the centre for law firms, and clients considered it as an indication of the lawyer’s prowess. Ten years ago in the United States, it was unusual to find a member of the legal profession with basic computer skills and the secretary was indispensable (Armitage, 1997; Brenells et al., 1997). In the same light, a report by the Bar Human Rights Committee of England and Wales (Library Resources for Lawyers Project Africa, 2001), explains, how the law firms used to operate before information communication technologies came into use. According to this Report, opinions, pleadings, and other legal documents were painstakingly drafted by hand and then typed by secretaries. First, drafts were amended and then carefully re-typed before signature. Legal research meant days in the library, searching for books and authorities in the hope that colleagues had not removed them. The quality of research, particularly in relation to new law, depended on the library collection being comprehensive and up to date. Hours over the photocopier followed in order to prepare bundles of authorities for the courts and colleagues. Sending copies to the court, solicitors, and interested parties required hours on the fax machine or an army of dispatch drivers and the journey to court involved a heavy bag of textbooks.
The situation is changing, albeit, gradually. The development of online computer- based research systems like LexisNexis and Westlaw (the first legal online databases) in the 1970s was an indication that legal practice had already entered an era not totally reliant on print (Katsh, 1995). Lawyers then began to find and download court decisions online and were able to carry out computerised searches through massive libraries for case reports, statutes and statutory instruments. Several other online databases such as Justastat, LexisNexis and Dialog have rapidly emerged to provide important additional electronic research facilities to lawyers while online advisory and drafting tools are also becoming commonplace. Lawtel and the new electronic version of Sweet & Maxwell are recent legal databases containing summaries of legal material. Besides access to external databases, in-house research database systems (sometimes referred to as a know-how database system) have become available in the form of CD-ROM and online computer systems and assist in the storage and retrieval of valuable know-how generated within the law firm itself.
The practice of law underwent a profound change when the first personal computers appeared in the law office. Computers are shouldering much of the burden of routine tasks that used to take an enormous amount of the law firms’ time. Lawyers are now able to carry electronic libraries around with light, easy-to-use portable computers and it is becoming increasingly easy to find specific information that used to take lawyers and paralegals hours to locate. Complex and expensive computer programmes enable lawyers to manage the documents and testimony needed in trials and some lawyers use large screen television presentations before juries presenting convincing and vivid arguments.
The literature reveals that lawyers have historically been fearful and resistant to adopt modern technology. In 1996, Katsh observed that many lawyers in the United States, especially sole practitioners and small firms did not even subscribe to, much less use the electronic research opportunities provided by LexisNexis and Westlaw. Some lawyers, particularly the older ones, have barely departed from the use of law books, and still consider print materials as probably the medium of choice. Similarly, in 1999 Lauritsen noted that even though most lawyers in America are using information communication technologies, techno phobia still reigns in many quarters, and many lawyers consider computers to be a strange hybrid of a manual typewriter beneath their dignity and above their understanding. Parsons (2002) reported that older lawyers tend to rely on the research skills of younger lawyers hoping that they are familiar with the latest information communication tools that facilitate legal research. Dubin (2005) noted that most lawyers are resistant to adopt information communication technology.
The resistance to adopt new technology may be partly because lawyers are reluctant to abandon their personal working habits and tools. In a 2001 study, one lawyer commented, “I like the books I’m a little old fashioned that way” (Haruna & Mabawonku, 2001:79). Lawyers’ resistance to adopt new technology could also be partly attributed to the legal mindset. With regards to the legal mindset, Koer (1989:28) refers to lawyers as professional non-believers who in the first instance rather mistrust than trust and who do not take things for granted. It may also be due to the fact that lawyers are generally obsessed with security of electronic information from protecting client’s documents to shielding privileged legal advice, and safeguarding accounting information and would apply high standards in terms of authenticity, quality and integrity of the information which they base their decisions to serve their clients. It is ironical to note that a lawyer’s career demonstrates the ability to learn and acquire completely new areas of knowledge as observed in section 2.3 above yet when it comes to adopting new technologies they are one of the most reluctant. Another reason why some lawyers are not up to speed on information technology may be because many law schools have not integrated it in their curricula.

Advances in information communication technologies

It is becoming obvious in today’s law firms that advances in information communication technologies is dramatically changing the method used by lawyers for processing knowledge and delivering legal services to clients. Information communication technology in law firms can be used administratively or operationally. A common categorisation of the use of technology in the law firm has been in the “back-office,” for administrative functions, and “front-office” for operational functions (Widdison, 1993). This description has become colloquial, because advances in information communication technologies have resulted in a seamless operation of both front and back office functions. Nevertheless, categorising information communication technologies in law firms in this manner is still important for a clearer understanding of the ways in which information communication technology is used in the law firm.
Generally, the administrative uses of information communication technology involves the application of information communication technology by lawyers or support staff to tasks essentially concerned with the internal management of the firm and towards improving staff efficiency in matters such as word processing, calendaring, time recording, client billing, accounting, marketing and public relations. Reach (2006) noted that this is done with the use of specialised legal technology software for word processing, accounting systems, calendaring, case management, conflict checking, customer relationship management, document assembly, document management, practice management and time tracking in back-office operations.
Operational uses on the other hand, involve the application of information communication technology by lawyers to tasks directly related to their professional efforts such as legal research, casework management, or as a tool to facilitate the legal process (Widdison, 1995). Typical applications used to facilitate front office operations are legal information systems, artificial intelligence, case analysis support systems, electronic learning management systems, and litigation support systems.
Nowadays, the adoption and use of information communication technology is moving beyond the automation of existing practices to innovative concepts and applications such as the intranet, internet deal rooms, extranet, document and content management, online depositions, real time chat, portals, groupware, expert systems and knowledge management systems (Hopkins & Reynolds, 2003; Reach, 2006).

The Internet

The internet is a major step forward in information technology and it is challenging most of the paper and print paradigm that supported the practice of law. It consists of almost every resource necessary for legal research. Legal databases such as Westlaw, LexisNexis, Jutastat and Shepard previously based on propriety software legislation now have sites on the internet where a lawyer can log on from any computer and do research. Besides these commercial databases that lawyers have to subscribe to, the internet also offers plenty of free legal information resources and electronic libraries comprising of full text documents. Examples of electronic sources freely available over the internet are the cases and legislation of the following institutions: The South African Legal Information Institute (SAFLII), Australasian Legal Information Institute (AUSTLII), British and Irish Legal Information Institute (BAILII), Canadian Legal Information Institute (CANLII), and the World Legal Information Institute (WORLDLII) (du Plessis, 2004). An online directory for South African legal professionals known as Hortors is also available over the internet.
Due to the proliferation of legal resources on the internet, software programmes have been designed to assist the user in navigating through the World Wide Web. An example is the popular search engine, the Find Law « Law Crawler » designed to locate legal resources located at http://www.lawcrawler.com/index.html. Electronic libraries comprising full text documents are accessible across the internet and it is also possible to access a substantial number of law library catalogues across the Internet. The internet Law Library, compiled by INTRALAW Legal Navigator and created by internet Legal Services integrates with a web browser to provide the user with organised index of links to legal resources on the internet (McCauley, 2005).

CERTIFICATION OF AUTHORSHIP.
DEDICATION
ACKNOWLEDGEMENTS
ABSTRACT
TABLE OF CONTENTS
LIST OF TABLES…
LIST OF FIGURES.
LIST OF CHARTS
CHAPTER ONE INTRODUCTION
1.1 Background .
1.2 Main research question
1.3 Sub questions
1.4 Research questions
1.4.1 Research questions for sub problem 1 (the changing legal environment and its consequences to law firms)
1.4.2 Research questions for sub problem 2 (the role of knowledge management towards addressing the challenges in the changing legal environment)
1.4.3 Research questions for sub problem 3 (the general status and scope of knowledge
management in law firms).
1.4.4 Research question for sub problem 4 (the current status and scope of knowledge
management in law firms in Botswana)
1.4.5 Research question for sub problem 5 (the guideline for implementation of knowledge
management in law firms in Botswana)
1.5 Objectives of the study
1.6 Rationale of the thesis
1.7 Delimitation of the study
1.8 Definition of terms
1.9 Overview of chapters
CHAPTER TWO THE CHANGING LEGAL ENVIRONMENT AND THE CONSEQUENCES TO THE LAW FIRMS
2.1 Introduction
2.2 What is a law firm?
2.3 Organisation of law firm.
2.4 Changes in the legal information environment
2.5 The consequences and challenges of the changing legal information environment to the law firms
2.6 Conclusion
CHAPTER THREE THE BASIC CONCEPTS AND THEORIES OF KNOWLEDGE MANAGEMENT
3.1 Introduction
3.2 Defining knowledge
3.3 The different approaches to knowledge
3.4 The nature of knowledge
3.5 Defining knowledge management
3.6 Perspectives in knowledge management
3.7 Frameworks in knowledge management.
3.8 Models of knowledge management.
3.9 Enabling tools and technologies for knowledge management
3.10 The role of information communication technology in knowledge Management
3.11 Techniques of knowledge management
3.12 Benefits of knowledge management
3.13 Drivers of knowledge management
3.14 Barriers to knowledge management
3.15 Enablers to knowledge management
3.16 Strategic planning for knowledge management
3.17 Conclusion
CHAPTER FOUR KNOWLEDGE MANAGEMENT IN LAW FIRMS
4. 1 Introduction
4.2 Types and categories of knowledge in the law firms
4.3 Law firm’s approach to knowledge management
4.4 Techniques of knowledge management in law firms
4.5 Potential benefits of knowledge management in law firms.
4.6 Frameworks and models of knowledge management
4.7 Barriers to knowledge management in law firms
4.8 Factors critical to the success of knowledge management in law firms
4.9 Knowledge management strategy in law firms
4.10 Conclusion
CHAPTER FIVE RESEARCH METHODOLOGY
5.1 Introduction
5.2 Research philosophies
5.3 Research methods
5.4 Research design.
5.5 Research questions
5.6 Population
5.7 Sampling plan or design
5.8 Data collection instruments.
5.9 Construction of instrument
5.10 Validity and reliability issues.
5.11 Ethical considerations.
5.13 Data collection procedure.
5.14 Data analysis
5.15 Problems encountered during data collection.
5.16 Conclusion
CHAPTER SIX DATA ANALYSIS AND RESULTS OF THE STUDY.
6.1 Introduction.
6.2 Personal profile
6.3 Organisational characteristics of the firm
6.4 The different categories of knowledge existing in the law firms in Botswana
6.6 Tools and technologies for knowledge management in law firms in Botswana.
6.7 Techniques for knowledge management in law firms in Botswana
6.8 The manifestation knowledge management in law firms in Botswana
6.9 The perceived benefits of knowledge management for the law firms
6.10 Factors that inhibit knowledge management in the law firms
6.11 The role of knowledge institutions and agents in the creation, sharing and capturing of knowledge in law firms
6.12 Conclusion..
CHAPTER SEVEN FINDINGS AND DISCUSSION
7.1 Introduction
7.2 Personal profile of the respondents.
7.3 Organisational characteristics of the firm
7.4 The different categories of knowledge in law firms in Botswana
7.5 Factors that would motivate the adoption of knowledge management in law firms in Botswana
7.6 The tools and technologies for knowledge management in law firms in Botswana
7.7 Techniques for knowledge management in law firms in Botswana
7.8 How knowledge management is manifested in law firms in Botswana
7.9 Perceived benefits of knowledge management for law firms in Botswana
7.10 Factors inhibiting knowledge management in the law firms
7.11 Institutions and agents for knowledge management.
7.12 Conclusion
CHAPTER EIGHT GUIDELINES FOR KNOWLEDGE MANAGEMENT IMPLEMENTATION IN LAW FIRMS IN BOTSWANA
8.1 Introduction
8.2 Presentation of guidelines for knowledge management in law firms in Botswana
8.3 Conclusion
CHAPTER NINE. CONCLUSION AND RECOMMENDATIONS
9.1 Introduction
9.2 Conclusions.
9.3 Have the research questions of this thesis been answered?
9.4 Recommendations.
9.5 Limitations of the study
9.6 Suggestions for further research.
REFERENCES
LIST OF APPENDICES
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