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Profile: Technology and law: a rare mix

Peter Davidson, Information Age

17/06/2004 08:25:24

At first glance, practising law and ICT together seem almost to be mutually exclusive: one the application of almost arcane concepts and precedents, the other precise, empirical and bound by immutable physical laws.

Philip Argy, who does both with an internationally recognised acumen, wouldn’t agree - although in nearly three decades of professional practice in both disciplines there have been others among his colleagues in both camps who have wondered how it can be done.

It helps to have a mindset which values equally the precepts of physics and the law, and a pragmatic understanding of how one can influence and shape the other.

For him, an insistent need to know how things worked and why started early enough: greasing the wheels of his Matchbox cars at age four on the family lounge, building cat’s whisker crystal sets using the neutral phase of the house power as an aerial and other projects to test his theories, and his parents’ patience.

The successful pursuit of physics and electronics at high school led to a decision to take information systems as a major in a Law/Commerce degree at the University of NSW while those about him plunged into accounting, and began a career path founded on a rare convocation of technology and the law.

Delving into the intricacies of programming in the early 70s using PL/1, which while hailed as superior to COBOL and Fortran for its string and interrupt handling, debugging and I/O capabilities, didn’t avoid the frustration of being limited to a maximum of 20 cards to a session on an IBM 029 key punch before having to rejoin the queue. But it did develop his unique two finger typing style.

“There were many people wanting to punch cards and as Commerce students we were seen as interlopers. However I did learn to read the 80-character EBCDIC code (IBM’s ASCII equivalent) on the top of cards which was handy when the ribbon ran out or the deck got dropped on the floor.”

However coping with the syntactical constraints where a missing semi-colon would produce 60 pages of compiler error listing and the need to start again, taught valuable lessons.

“I lament that some of things we learned are no longer taught; it was a good incentive to bench test source code before going on, playing devil’s advocate with the logic, to do error trapping.

“After about a year of this, Digital Equipment put a PDP8 running BASIC into the Commerce Faculty basement. I was fascinated by its having an interpreter rather than a compiler, allowing ‘compiling’ on the run.

Quick and dirty things “It was brilliant for being able to do all sorts of quick and dirty things, and I would delight in creating calculators for things like stamp duty for my legal colleagues who, like most lawyers, were genetically innumerate and technology averse having studied humanities and the arts.

Having come from a family background with no connection to the law “or anything resembling it”, no one had told him that lawyers weren’t supposed to be physicists and interested in technology.

“I found that the parallels in the paradigms were uncanny; in terms of problem analysis and solution programming, the approaches and techniques were independently developed but much the same. What IT people called programming a solution and lawyers called drafting pleadings were very similar.

“On the computing side you have syntactical and instruction set constraints and on the legal side the law and the rules of court which don’t allow unlimited options to achieve a solution, so the mental processes to find a solution continually cross-pollinated between the two disciplines.

“I often found myself drawing flow charts to graphically show the logic, or lack of it, in a piece of legislation. That led me, oblivious to the uniqueness of what I was doing, to start developing expert legal systems, which were glorified decision trees.”

Six months before graduation, it was time to start thinking about getting a job as a lawyer. Unlike “90 per cent of lawyers who a relative in the law and knew the system” he had driven cabs and other jobs including publicity flack for Film Australia. And driving the ‘bad’ car in a kids’ road safety series called “Hector the Cat” rather than have a chance to get legal experience during vacation by dint of family connection.

A new concept called “clinical legal experience” to give grads a day a week in a law firm or elsewhere in the judicial system brought a lucky break when a ballot for available positions saw him assigned every Friday in mid-1976 to what is now Mallesons Stephen Jaques.

He’s been at the big Sydney-based firm ever since, going on 28 years.

“They didn’t know what to do with me” but, as well as working with a couple of partners, his technical bent was given new headroom by being put in charge of the photocopier.

“I spent my time putting out fires: in their wet process chemical copier, the paper was dried on a heat drum. If paper jammed it would burst into flames – this happened about twice a week. My ‘office’ was a table next to the copier and it was my first introduction to office technology.”

Sufficiently impressive to be offered a job by the firm’s managing partner at year’s end, he became one of the first graduates to attend the recently established College of Law which gave him six months full-time practical training in legal process, circumventing the traditional two-year indenture as an articled clerk inflicted on his predecessors.

“I went there because it was new and the firm wanted me to be a guinea pig, to see if it worked as a viable alternative to being articled. It meant that I was admitted 18 months earlier than otherwise.”

Three weeks into being a full-time practising lawyer, he got involved in a case concerning metallurgical flaws in a pipeline and astonished their client by being able to discuss ultrasonic weld testing with the expert witnesses, calling on his background in physics.

Another similar case followed, and within a couple of months he had started establishing a reputation as lawyer who actually knew about and even enjoyed technology.

Having been told that “he could never do law” because he’d never learned Latin, Argy was rapidly finding that although mainstream computing was still largely the province of academics and scientists, office automation technology was gaining increasing prominence and there was a career in combining science with the law.

It started modestly enough by being frustrated with whole documents having to be retyped when a simple mistake was made, and while the arrival of liquid paper, golf ball and mag card typewriters alleviated this, it was a report that the Tax Office in Parramatta had installed screen-based word processors that really got his attention.

“I recommended that the firm look into it and they said ‘you know about technology so look after office automation’ and being a good lawyer I asked what they meant by that. The answer was ‘anything that plugs into a power point’.

“So for the next 22 years I had a key role in the firm’s procurement and deployment of technology, and as a full-time lawyer I knew better than any IT person what could make a serious contribution to productivity.”

A stream of enthusiastic but otherwise unprepared W/P sales reps quickly learned that he knew more about the technology than they did: “They just didn’t know what they were talking about and were just widget salesmen. Not much has changed; in 2004 there are still court cases where the court says the salesman lied.”

In 1980 the NSW Law Society asked his firm to take a case under legal aid concerning a software claim, as the only firm it knew of with expertise in computing. Many others were to follow, but in the meantime a stint in the firm’s New York office in 1982 consolidated his expertise by seeing how firms were using technology, and particularly by meeting a new breed of legal practitioner, the “computer lawyer”.

Back in Australia, he and some like-minded colleagues set up the NSW Society for Computers and the Law, under the aegis of the Australian Computer Society as a special interest group to help get it started.

Accepting a suggestion that he join the ACS on the basis of his Commerce degree having information systems as a major gave him exposure to more professionals in the industry and “I enjoyed the ability to keep up with the technical side of computing as well as the legal aspects.

Software copyright “For example, because I had written software and had studied copyright, I couldn’t understand why anyone would doubt that there was copyright in source code because as far as I was concerned it was no different to someone writing a recipe.

“In about 1984 an amazing court decision was handed down which said that you couldn’t have copyright in computer programs because they can’t be literary works as they don’t afford enjoyment or aesthetic appreciation.

“I was just flabbergasted; I wrote an article called ‘Copyright in Computer Software?’ making a fairly scathing attack on the judge’s reasoning and explaining why a piece of source code was a legitimate literary work. I was incredulous that anyone could have argued otherwise, let alone that a court could have accepted the argument.

“That really got me very interested in intellectual property law, and was a trigger to formally meld my technical skill sets, which until then for the most part had been a hobby, with my legal practice.”

Having developed a network of corporate inhouse lawyers among software vendors in the US and UK, he was able to secure the legal work for their burgeoning Australian operations, developing a unique practice representing Lotus whose 1-2-3 was supplanting VisiCalc and Ashton-Tate whose dBase was the leading database application. Microsoft came along a lttle later.

“Work just kept coming and in January 1984 I was made a partner, the first in any Australian law firm to be a professional grade member of the Australian Computer Society.

Bearded oddball “I was regarded as a bit of an oddball as I still didn’t speak Latin, didn’t have the cultural qualities that well-bred lawyers had – and I had a beard. There was some Orwellian irony in a computer lawyer becoming a partner in 1984.”

Legal work for the ACS in the 90s fostered an appreciation of its governance work and he was invited to join the BEC and ultimately became NSW Branch chair after John Ridge, and later served three terms as Vice President, an office he still holds.

“It has been an extraordinary learning curve to appreciate the dimensions of the ACS, and I’m not sure that even now I know all there is to know about it after seven years as an office bearer – there are just so many facets of it.”

Deepening involvement with the ACS saw him putting its case during parliamentary inquiries into online content regulation, he joined several government-sponsored technical advisory groups and has represented the Society during enquiries into cybercrime, Spam and host of other legislation.

His passion, however, is for promoting the Society’s profile and the values of professionalism in IT.

“Historically, people equated IT with cowboys and used car salesmen and most wouldn’t have thought of it as a professional career; many still don’t, but Australia was the first country in the world where the IT peak body was admitted to the National Council of Professions

“Trying to convey to people what professionalism does for the IT industry is enormously important. It still surprises me how many boards and companies profess to be focused on corporate governance and risk management, but when asked what they do to ensure that the people who are involved in mission-critical projects have the right credentials, they concede ‘nothing’.

“Isn’t that something boards should be interested in? Do they appreciate that by specifying professional ACS members’ involvement they get adherence to a code of ethics, people who value professionalism and that this significantly improves the risk profile?

“Most companies remain oblivious to the importance of those kinds of issues. “Companies don’t think twice about paying for the practising certificate of their corporate lawyers or the CPA fee for their accountants yet they resist paying the professional association membership fee for their IT staff. Why?”

“The ACS is also pushing very hard for IT security specialists to have some sort of accreditation regime, because since Y2K it’s been clear that people walk in off the street, proclaim themselves a security expert, be given access to the innermost sanctum – and no one has the slightest idea what they’re doing.

“They might have raw technical skills, but to allow someone like that who has not had the ethics/professionalism overlay is a risk management issue, and the government must accept our submission that there has to be a formal accreditation scheme almost as a matter of national security.

“Also, when you see the huge number of solution implementations that have failed, they are either solution evaluation or project management failures, and generally the ones that have crashed were through an objective lack of professionalism.