On the Law: The legal world is arcane, but evolving

Lettis

After I passed the bar exam and was admitted to practice law, I quickly established myself and “hung my shingle” in Otsego County.

As I became familiar with the workings of different courts and styles of different attorneys, I was often surprised by the “old world feel” of the practice of law. Some of that is because of the terminology we use; the use of Latin terms certainly enhances the feeling that this profession is ancient. But I think some of the “old-fashioned” feeling I experienced was from the reliance on old technology: facsimile, mail and landline telephones. One day, a local attorney offered to sell me his old legal books — reference books for case law and statutes. He thought he was doing me a favor. I declined, as research materials have moved online and it is not necessary to store hundreds of pounds of reference books on shelves. While the legal profession may be among the slowest professions to adapt to modern technology, the pandemic has pushed many attorneys, many judges and the court system to rapidly move forward.

Some aspects of the profession adjust through new laws. We see legislative measures try to adapt current laws or enact new laws to address issues that arise as technology evolves. For example, in 2019 the New York Legislature targeted something that commonly became known as “revenge porn.” This is an unfortunate incident that occurs when a relationship goes sour, and a former intimate partner wants to harass his or her ex. A law was passed to keep pace with new technology, recognizing as unlawful the non-consensual sharing or publication of an intimate image. The legislature passed a new law which identified a new Class A misdemeanor: Penal Law section 245.15, unlawful dissemination or publication of an intimate image. Interestingly, the law also created a civil penalty, enabling the victim to sue for monetary damages.

More recently, the Legislature amended the law to create a mechanism for a judge to limit contact with a protected party in an order of protection. The legislature passed, and the judiciary implemented, new language for courts to consider: refrain from remotely controlling, monitoring or otherwise interfering with any electronic device or other object affecting the home, vehicle or property of the protected persons(s) by connection through any means, including, but not limited to, the internet, Bluetooth, a wired or wireless network, or other wireless technology. If you or someone you know should come across a newly issued order of protection, this language will likely be included, and one should check to see if the judge ordered compliance (you will see a box checked or not checked). It is not uncommon for a vehicle to have a GPS device, for a home to have a camera at the front door or for various home appliances to be controlled by an app on a smart phone. This legal adaptation seems to be a welcomed response to the growing use of electronic monitoring devices, GPS, internet-equipped home systems, appliances, etc. This is a good example of a longstanding legal remedy (in this instance, an order of protection) adapting to modern technology to suit the needs of litigants.

While some changes in the law result from the widespread use of new technology like those mentioned above, other changes result from a response to situations like the pandemic. The court system in New York has fluctuated somewhat over that last year, in terms of holding court in person as opposed to virtual appearances on a number of platforms. While the judiciary continues to navigate how to hold court hearings, conferences, and trials, an effort has been underway to implement an electronic filing system for petitioners. Rather than filing a new petition in person with a court clerk, and rather than sending a new petition to a clerk through the mail, many counties have implemented an electronic filing system. The effort is an attempt to examine the use of technology in the court system and better equip the system to keep pace with society’s rapidly evolving changes and challenges. A state judiciary commission recently found “In-person filing wastes attorney time, client money, and court resources, and is especially dangerous during the global health crisis we are currently experiencing.” If e-filing becomes mandatory, existing exceptions for pro-se litigants (those who represent themselves rather than hiring an attorney) and technologically challenged attorneys would remain in place.

Other aspects of the legal profession are also evolving. You may find this hard to believe, but some legal organizations continue to use DOS database systems, or “command line interfaces,” and Word Perfect. For those of you reading this who are unfamiliar with those programs, Word Perfect is a software program that fell out of favor with the rest of the world in the 1990s. The average consumer also shifted away from DOS operating systems during that same time. It is exciting to report that the legal community, in 2021, is also making strides to adapt to technology that is not obsolete to the average user.

Finally, the professional rules of conduct for attorneys are also evolving to keep in step with new technology. The profession is studying and adopting new standards when it comes to electronic storage of information and using encrypted email when appropriate. Overall, the legal profession is making strides to ensure quality services through the use of technology and will continue to evolve to keep up with the ever-changing world. In the meantime, if you are trying to get in touch with your attorney, you might want to send her a fax…

Susan Lettis is a lawyer in Oneonta.

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