Lawyers for a high tech age

Nation's Business, Feb, 1986 by Karen Berney

You should take 100 milligrams of gentamicin once a day for a week to clear up your infection." A prescription from a specialist in gastrointestinal disease? Not quite. This advice is from a computer-based expert system that has diagnosed your symptoms.

But due to a programing error, the system has failed to flag an incident in your medical history indicating you would get an allergic reaction to the drug.

You take the medicine and are rushed to the hospital for emergency treatment. You want to sue for damages, but who is responsible? The doctor who wrote the prescription? The creator of the software system? The vendor that distributed it?

The case is hypothetical, but the liability issues it raises are just around the corner. The prospect is drawing increasing numbers of attorneys into the fastest-growing legal specialty: high technology law.

"Twenty years ago you would call yourself a high tech lawyer, and people would treat you like you had a social disease," says Susan Nycum, one of the first in the field. Nycum, a partner in Gaston Snow & Ely Bartlett, Palo Alto, Calif., says nearly every major law firm is setting up a high tech practice, and "every lawyer is dying to proclaim himself a practitioner."

Membership in the Computer Law Association provides evidence that computer law is the rage. From 1980 to 1985, it soared from 100 to 1,100 attorneys. Though computer law will continue to attract followers, the next few years will also see the rise of lawyers specializing in such esoteric technologies as artificial intelligence.

Space law, too, will be popular, and it is "going to make a lot of lawyers very rich," predicts Arthur Dula, a Houston aerospace attorney.

When numerous legal obstacles to industrializing the heavens are cleared, markets worth hundreds of billions will open, he adds.

Many law students are pinning their career hopes on high tech law. They are demanding access to the kind of training needed to succeed in a market where the language of science is as important as that of the case book.

Indicative of the trend is the School of Law at the University of California, Berkeley, which just three years ago did not offer even one course in the high tech arena. Four such courses are now in the curriculum, and the university has launched the student-edited High Technology Law Journal. On the drawing boards are plans for a center to serve as an information clearinghouse on technology and law.

According to one student, senior Christopher Wright, about 10 percent of Berkeley's law students have expressed interest in becoming high tech lawyers. Their reasoning is purely economic, he says. "There is a glut of lawyers out there. High tech is the one growth spot." Wright, who plans to focus his own legal career on high tech, says he realizes that all his potential clients "will be touched by it in one way or another."

A good starting position for someone like Wright might be with Pittsburgh's Reed Smith Shaw & McClay. Sensing an opportunity early on, the firm established the TECHLEX Group in 1982 to cater to needs of the high tech community.

The group was formed in response to clients' requests for one-stop legal shopping, says its chairman, Arthur J. Schwab. Before then, each client used as many as four law firms in different specialties and paid heavy legal fees. "It just wasn't cost-effective," notes Schwab, who reports a fourfold increase in clients, from traditional manufacturing companies to small start-ups, since TECHLEX opened for business.

High tech entrepreneurs are often scientists or engineers "who are not prepared to recognize and confront legal issues at a time when the need to do so is greatest," Schwab says. Their problems range from the fundamentals of how to obtain a corporate name to the abstract issue of how to manage a new technology in an environment fraught with legal uncertainty.

It is the knack of knowing how to make the best of the uncertain that sets the high tech lawyer apart. "Not only do you have to be conversant in every facet of the law, but you also have to anticipate new law and evolutions in the old," says Nycum.

How important is having a technical background? To be effective, most high tech lawyers need only to stay abreast of technology. But in some fields technical expertise is essential for success.

Nowhere is this more true than in the emerging biotechnology industry. Biotechnology, the application of genetic engineering to commercial uses in such industries as pharmaceuticals, chemicals and agriculture, was born in the early 1980s and thus is in its legal infancy. "Basically, there are no biotechnology laws," says Bruce F. Mackler, general counsel to the Association of Biotechnology Companies. "Rather, there is the process of interacting with various government agencies to get regulations that will enable the industry to grow."

Mackler, who holds a Ph.D. in microbiology, says his best strategy for expediting federal approval of his clients' innovations is to approach regulators as a scientist, not a lawyer. "If I walk into an agency wearing my legal hat, I am regarded with suspicion," he says. "I have automatically established an adversarial relationship."