The Role of the IT Lawyer

September 7, 2010

My blogs so far have promoted SCL with occasional forays into weather and economic forecasting, and of course transport issues (bikes in London).

I  also want if I may  to encourage discussion in this blog on broader areas related to the practice of IT law more generally. Prompted by a stimulating discussion over lunch today, the first question I should like to pose along these lines relates not so much to our undoubted technical expertise as IT lawyers, but rather the extent of the advice we provide, whether in private practice or an in house context.

To take a rather extreme example, is our role limited to advising on the drafting of entire agreement clauses (incidentally an intricate task of notable importance following the BSkyB case), or should we also be engaged in providing advice about the business context in which a contract is being entered into?

Suppose, for example, we know from our experience that a particular method of structuring the contract or of developing the solution  being proposed by the client (customer or supplier)  may not work in practice. Is it then our role to draw this to the client’s attention and perhaps suggest alternatives? We could propose that the client considers Agile development methods as opposed to the more traditional waterfall process. Or we could suggest  ways of ensuring continued value for money over the lifetime of the contract.

Our fellow professionals in the accountancy world seem to have moved into the consultancy space with some success. I venture to suggest that, whilst we often do provide this sort of “business advice” on IT deals, we do not make much of this or sell it as a benefit to our clients.

I acknowledge we have professional standards to maintain, and that there may be charging and risk issues to address. Also the cynic in me recognises that many clients do not provide their lawyers with the opportunity to provide this more general business advice, presenting us with a contract structure possibly doomed to failure and asking us just to do the “wordsmithing” (horrible expression) or to be “legal eagles” spotting lacunas in the limit of liability clauses. And some lawyers are more comfortable never venturing out of these areas.

However I do believe on a personal basis that I have added most value to clients as an IT lawyer when I have succeeded in being seen as a trusted business adviser, who is also a lawyer and has particular experience in IT contracting.

I welcome views for and against this proposition.