Knowledge Management for legal sources in a multinational environment

Computer based management of legal sources has become a must for law firms wanting to be cost effective and meet quality standards. T.A. Falkvoll, a lawyer, identifies the fundamental elements of lawyering and examines strategies and objectives as well as some basic standards for a software based knowledge management system.

‘Knowledge’ has been defined as ‘ideas acquired by study, investigation, observation or experience’. [1] It should be distinguished from ‘data’, which consists of ‘factual information’. Knowledge contributes to skill or wisdom, which has been described as ‘good sense; an ability to discern inner qualities and relationships’. According to my experience, however, the concept of knowledge management is not used with a common understanding. It may differ for practical reasons, e.g. whether a sole practitioner or a larger law firm is subject to the framework. In this article knowledge management is dealt with as the regime that manages legal sources from filtering out relevant source data, storing and updating of references, to the implementation of these sources in the operational phase of lawyering. In my understanding of knowledge, and by applying data protection provisions and relevant conduct rules, it is necessary to strictly separate operative lawyering for clients from the management of knowledge. In particular, the lawyer-client relationship requires a management of knowledge tool that is clearly isolated, penetrating neither client data nor data files. I shall first identify the fundamental elements on which lawyering is generally based, i.e. the environment for knowledge management. Secondly, I shall review strategies and objectives for knowledge management and, thirdly, briefly examine the tasks where a knowledge management system may be implemented, outline the main data sources one may expect to be able to manage through a knowledge management software based framework and certain software technical specifications.

Knowledge, skills and ethics

Lawyering can be identified under three headings: knowledge, skills and ethics [2]. Generally, lawyers must have a minimum of knowledge, which encompasses the fundamental principles of law; law and procedure required by all lawyers; the context of clients’ affairs and specialist knowledge of the area or areas within which the lawyer is practising. Skill is the implied knowledge as expressed by each lawyer, including the ability to legally analyse facts; communication; drafting; advocacy; negotiation, management and numeracy. This aspect of lawyering goes far beyond the legal issues of a problem; it includes reflection, a lawyer’s personality and the ability to establish the client’s confidence. Skills or wisdom surface when a lawyer works. It is important to pinpoint that skill and contemplation are a part of the personality of each lawyer and cannot be transferred to a hard disk managed by a knowledge management programme. Data identified as knowledge may be used as input in order to bring the well being of a lawyer to higher levels. The specific ethical element in lawyering, including the manifestation of integrity, the application of core professional duties and rules, requires a knowledge management system that takes into account these aspects.

A knowledge management system should - in addition to managing the legal sources, including the rules of ethics - include a framework to help the lawyers to meet the professional and ethical standards, as set out from time-to-time. The standard of knowledge set down for lawyers is a high standard. Not only knowledge about prevailing and relevant statutory basis, case law and statements in legal textbooks or periodicals, but also arguable case law and possible future developments in law are a must. Knowledge about the latest developments in law has always been a matter of prestige. However, today, in a European perspective, it has become a task requiring resources and attention. It is also evident that in addition to case law in each jurisdiction and developments in other jurisdictions, the European Union Courts, as well as the decisions from the European Court of Human Rights have to be monitored. A lawyer is not granted much time to obtain knowledge about new legislation and case law [3]. Thus, the implied corporate governance or product quality which a law firm should have in place must include a framework for identification and retrieval of sources on relevant legal issues, e.g. for minimum liability standards it is not sufficient to prepare pleadings based on a search through case law registers or use of search engines [4].

Knowledge management strategies and objectives

Against this background a number of general qualities on which a knowledge management system should be based can be identified. The framework should enable the user to collect and register sources easily and continuously. Further it must be possible to classify the sources in a variety of legal contexts, to update the knowledge base(s) and finally to implement and have access to the knowledge at any time during the decision making process, e.g. spotting of issues or drafting. Knowledge does not include only primary and secondary sources but also forms, checklists, standards and drafts that can be retrieved from internal or external databases. At one end of the spectrum knowledge management software has to be very flexible and at the other it should include a minimum standard of sources that are independently identified as relevant in the different areas of law. My experience is that a numeric index based management system including one or more externally updated source database(s) is a framework suited to organising and managing sources for use by lawyers. The comments made in the remaining part of this article are made with reference to an index based knowledge management software and database.

Lawyering in larger firms has entered into a phase where the knowledge of law cannot be left to the interest and motivation of each lawyer. Successful lawyering involves dealing with matters in an efficient and speedy way, meeting quality standards higher than the minimum standard and better than the competitors. It should remove stress and improve the life standard of the people involved in the daily lawyering. One of the objectives of a law firm is to create and maintain an environment in which the stock of knowledge is continually shared and expanded in the most cost-effective manner. A firm's most valuable resource in pursuing this objective is its lawyers and a firm’s strategy for sharing knowledge recognises the hierarchy of information systems, recognises and provides for adaptable framework for use with various types of media, recognises the need to protect intellectual property and knowledge, provides for differential access based on content and need and provides a flexible framework to which new data bases and expert systems could be added or deleted.

The introduction and operation of software knowledge management systems in law firms, which in turn maximise integration and expansion of knowledge, need to be cost effective.

Firstly, these days standard ‘off-the-shelf’ developed software would generally help the users to achieve this objective. The software should be based on an existing recognised platform with a good track record. Development of new standards and software solutions does not tend to be necessary and carries an inherent risk of uncontrollable use of human resources and costs.

Secondly, the management system must be based on a systematic filtering of relevant data to be registered as sources. This service may, to a certain extent, be attained by licensing databases and extended via input by the firm’s lawyers. A combination of these spotting procedures will secure quality and act as an incentive for those lawyers engaged in research.

Thirdly, the knowledge management system should also be an integral part of the quality system of a firm, and, thus, the process - from the collection and registration of data, to the final stage of implementation of knowledge in the decision making by solving pending matters - has to be precise and traceable. As a consequence, the use of a proper knowledge management system will lead the employees to achieve professionalism and security; thus minimising the risk of making mistakes.

Fourthly, on the one hand the management system should enable co-operation and openness and on the other hand it should, according to my experience, enable protection of data and knowledge. This attitude is human and a system should be flexible enough to let a user protect his or her data. As we are dealing with knowledge as an asset for each lawyer or a firm, it is necessary to be realistic and to recognise the need for protection of intellectual property rights not only through password protection of areas of data bases/data stored under certain indices, but also through employment and partnership covenants and enforcement of such restrictive clauses.

Standards for knowledge management software, tasks, main sources and certain technical parameters

In addition to being able to identify legal sources in connection with a variety of legal actions on behalf of clients [see below], a knowledge management system should also enable a firm to swiftly identify legal sources and standard forms approved by the firm in the past and thus, if necessary, replace or train a lawyer on short notice, e.g. advise a new lawyer to familiarise him/herself with standard forms, text books and articles registered under a certain index number that may have been the area of responsibility of the lawyer replaced. The system should be a guidance for training, both lecturing and self-learning cutting out the necessity to go back to general basic legal sources without specific references.

Systematic structuring is a precondition for the management system’s optimal function, whereby traditional areas of law and topics are stored together in which various sources of law can be identified. Generally, we might refer to statutory instruments, which not only include printed material kept by the firms or by an external library, but also via database available on the internet. We might refer to case law that, in the past, has been available in case law collections and periodicals that many jurisdictions now also publish on the internet, as well as standard forms either in paper or electronic form. Through a management system database, the user will be able to identify where a textbook or an article is situated in the firm and in addition be able to list relevant sources not shelved in the firm’s library. Today, it is imperative for a knowledge management system to have the possibility to establish links to external databases and web sites. At the same time, all these sources should be organised and retrievable under index numbers, a catchword catalogue and findable via a search engine connected to the title section of the index. On the one hand, software with a theoretical approach in registration and storing of data sources may well be an incentive for junior lawyers to involve themselves in knowledge management-work. On the other hand, there is the practical approach up to the point of finding a source, e.g. a standard form, a feature that a senior lawyer would at least expect from a functioning knowledge management system.

Over time, a crucial aspect for success of any knowledge management system is the ability to identify relevant data and knowledge through the system and to sift out unimportant and historical data. Therefore, the software should have such a flexible parameter that at any given time the user only retrieves relevant data.

In principle, the knowledge management software database should be the gateway to all legal sources used by a firm. In order to fulfil this function, the software must meet a number of technical software standards, including:

Access control by letting users log on to the system with a username and password, including differentiated access control to certain references or documents,
Handling of different text formats such as word-processed documents, scanned documents, pdf files in addition to internet links. Text files in a knowledge management system should be easily accessible in the firm’s present document handling systems,
Ability to indicate temporary/draft documents and separate these from final documents thereby updating the database(s), which would normally be carried out at defined intervals, data registered by a specific user must automatically be preserved,
Network support with direct online access, remote access or replications systems in order to allow users at different locations to access the same knowledge management framework.

With a software based knowledge management system in place, a firm must be willing to assign resources to update the system, not only those traditional sources on a continuous basis but also standard forms, computer engineering aspects of running a software based framework as well as expanding, in depth and width, the knowledge index catalogues. In order to secure the quality of knowledge management, the software should be managed by a system manager and the users should be granted access by the implementation of a password key system.

Terje A. Falkvoll is an international lawyer with permission to practice in England and Wales, Germany and Norway. He can be contacted at falklaw@diag.no and by telephone on +47 22 924028.

[1] Webster's Online New Collegiate Dictionary (January 2002)

[2] Michael Mathews, Tightening up on training, Gazette 98/31 9 August 2001, 43.

[3] See e.g. BGH decision of 29.3.1983 in NJW 1983, 1665, and BAK-Mitt. 4/2001, 175.

[4] Antje Jungk, Pflichten und Haftung des Anwalts, BRAK-Mitt. 1/2001, 17.