March 25, 2013

Geek vs. Geek-Attorneys vs. Information Management Consultants

by Cary J. Calderone, © 2013

What laws control this data?
This is the second Geek vs. Geek post.  Here we pit lawyers (L-Geeks) against information management consultants (I-geeks).  On the one hand, your attorney is legally obligated to protect your communications (attorney-client privilege) and provide you with advice and documentation applicable to your facts and the specific laws as they apply to your legal matter (attorney work product) in accordance with accepted professional standards.  On the other hand, I-Geeks, unless they are your employees, are typically not bound by professional conduct standards, conflict of interest rules, or even protecting your privileged information.  Outside consultant I-Geeks (it is very rare for an inside I-Geek to bypass internal legal review and protocols) may sign a confidentiality agreement for you, but I have never seen a consulting group operate with safeguards and procedures that were even remotely similar to those employed by L-Geeks.  Why is this?  Does it matter?

First, if the attorney makes a mistake, they can get in quite a bit of trouble and may even lose their license to practice.  Pretty severe consequences for an L-Geek who doesn't consider the details of data classification and specific legal safeguards for working with you and your information.  Conversely, when consultants mention, "what our clients are doing" or the "best practices," it sounds like they are giving you good advice, but are they?  They hope to give you adequate advice, thereby promoting the "sale," but do you know if they have reviewed any or all your specific legal requirements?  Do you know if others have tested and implemented this advice?  If your company relies on this advise you can only hope it was gleaned from a company that was working with a knowledgeable attorney under substantially the same scenario.  How can you tell?  Well-intentioned free advice can get you in a lot of trouble even when it is only slightly off the mark.  Consultant I-Geeks may lose the engagement, and may be exposed to a lawsuit, but the relief obtained from the I-Geeks, after-the-fact, is unlikely to produce adequate remedies for you.  Therefore, it is really in your best interest to be cautious and know who is giving you the advice and when it might be "legal" advice that needs your attorney's review and protection.

Second, L-Geeks will look at and understand subtle differences in your factual situation and the language you use.  This is what they are trained to do.  When it comes to legal specifics and the documents that control legal processes and protocols, be sure to consult with your L-Geeks.  I will never forget the answer a consulting company owner gave me when I asked "are you afraid that you are getting into the practice of law and your consultants will miss some really important legal issues?"   I was concerned because these were technology consultants, who were now tasked with advising clients on their data privacy and retention practices.  His quick and simple response, "that is why we have a large insurance policy protecting us."  That seems like such little comfort.  

Sometimes sales reps and consultants do provide good research overviews and generalized advice that can be a great starting point.  Also, they may be expert at implementation of the policies and procedures you  need and they can advise you how to get the project going.  The best of these I-Geeks know when it is time to have your lawyer review the law or the language, and they won't hesitate to tell you to do so.  But far too many want to make a sale by proposing a simple solution to your problem because that is what clients typically like.  In an effort to make you, the unsuspecting party happy, and in order to establish an ongoing relationship, they try their best but they frequently fail.  The simple information they provide will be, at best incomplete, and at worst, out-dated or, totally inapplicable.  Relying on the "free" legal guidelines and forms can be prove to be very costly in the end..

It is not all bad news for the I-Geeks in this Geek vs. Geek face-off.  Read some of the previous posts on this blog and you will know I believe that when it comes to managing your information, after you have the legal rules and policies in place, I-Geeks are vastly superior to most L-Geeks.  There are only a handful of law firms that have enough I-Geek experience and technology background to instruct you how your company should best manage its information.  And, remember, L-Geek is used to describe a legal geek, with quite a bit of emphasis on the geek.  If your regular attorney can't even operate a laptop, you should find another lawyer for this kind of project.

In conclusion, have you been working with both L-Geeks and I-Geeks to insure your retention, privacy, e-discovery, and other information management policies will work for you?   You should.

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