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Cybersecurity Quick Tip: Avoiding Wire Fraud – What Law Firms Need to Know

Rachel Casper — Fri, 17 Dec 2021 19:25:08 GMT

With a rise in wire scams targeting law firms and their clients, LAWPRO has shared a must-view program for lawyers and legal staff to combat the threat.

Experts share an update on the ways defrauders are tricking lawyers and legal staff, along with easy-to-implement tips to avoid the nightmare scenario in an 83-minute recorded program (embedded below) from Ontario-based professional liability insurer LAWPRO. Program materials are available here, which include information on incident response plans, cybersecurity and wire fraud tips, cyberinsurance, and more. Tips to reduce risk include:

Implement Robust Computer & Phone Security Practices
Make & Update Your Incident Response Plan
Provide Staff Training on Identifying Bad Checks and Phishing Messages (RELATED: Top 10 Tips: Effective Cybersecurity Awareness Training for Law Firm Employees)
Check Sender Email Addresses
Check Documents for Manipulation
Implement Independent Verification on All Wire Payments
Set Firm Culture for Fraud Prevention
Stay on Alert
Ensure You Have Sufficient Cyberinsurance (RELATED: Demystifying Cyber Insurance for Lawyers — On Demand Webinar)

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ABA TECHSHOW 2022 is Back in Chicago (with a Virtual Track) March 2 – 5

Rachel Casper — Fri, 17 Dec 2021 16:00:39 GMT

ABA TECHSHOW is “bringing lawyers & technology together” back in person, while adding a track designed for virtual attendance — Our readers can use our discount code (below) to register.

ABA TECHSHOW is where lawyers, legal professionals, and technology come together each year. For three days, attendees learn about the most useful and practical technologies available. The variety of CLE programming offers comprehensive education in a short amount of time. The event is back in person this year after its first ever virtual conference last year, and this year, a brand new Virtually Everything track promises value for remote participants.

Technology is becoming fully integrated in the practice of law. Legal work is now more dependent on the use of technology, in and out of the office. It helps us to practice more efficiently, serve clients more effectively, and better manage our daily lives. As technology evolves, it can be difficult to stay informed of the latest advancements. With so many different options to choose from it can be difficult knowing what’s the most suitable to you and your practice. This is where ABA TECHSHOW can help.

ABA TECHSHOW teaches you how technology can work for you. ABA TECHSHOW has almost four decades of experience bringing lawyers and technology together. Legal work today is dependent on technology to manage day to day activities, to practice more competently, and to service clients more effectively. Through the expansive EXPO Hall, CLEs, presentations, and workshops, you will be able to get your questions answered and learn from the top legal professionals and tech innovators, all under one roof. Regardless of your expertise level, there’s something for you at ABA TECHSHOW.

The conference’s tracks cover a range of critical topics, including Core Concepts, Design, Launch, Grow, Sustain, and Transform, along with the Virtually Everything track. Learn more about the types of insights shared on each track here, and the full conference schedule here.

REGISTER using our discount code, EP2202. This discount only applies to registrants that qualify for the Standard registration and will save you $100. You can register online and include this unique discount code: EP2202 at checkout to receive the discount. Special rates for single day passes, virtual-only passes, government/legal aid/law school faculty, and law students are also available. Find pricing and register here — Rates go up on January 17th!

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Practical Time Management Tips for Lawyers [Webinar]

Rachel Casper — Mon, 13 Dec 2021 21:56:40 GMT

Improve your time management with easy to implement strategies from Christopher Early, Esq. with our next installment of Webinars for Busy Lawyers — in 30 minutes or less.

Wednesday, January 26th at 12pm (eastern)

PRACTICAL TIME MANAGEMENT TIPS FOR LAWYERS

Join us to discover ways we can better manage our time as lawyers in order to work more efficiently and productively, make more money, and most importantly, support our mental health in a demanding profession with demanding clients.

This webinar will provide real, actionable time management tips you can easily implement right away in law practice. As attorneys, time is our stock in trade and needs to be carefully guarded because once it is gone, we can never get it back.

Q&A will follow the program, giving you the opportunity to ask any questions you have.

If you can’t make the live event, you can still register to get a link to the recording.

ABOUT THE EXPERT

Christopher Earley is a personal injury lawyer and author in Boston who since 2005 has concentrated his practice on the representation of the seriously injured and their families. When not working on growing and scaling his firm, he enjoys spending time with his wife and two children. He is also a really bad drummer. He encourages lawyers looking to grow their practices to contact him as he loves discussing all things related to growing a law firm. Find his website at http://www.chrisearley.com/.

MORE WEBINARS FOR BUSY LAWYERS ON DEMAND

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Shadow IT: A Serious Threat to Law Firms [Guest Post]

Rachel Casper — Fri, 10 Dec 2021 12:02:13 GMT

The legal tech experts are here to explain what Shadow IT is, why many firms fail to recognize it as a threat, and how to address it.

. . .

What is Shadow IT?

The first problem with cautioning lawyers about the dangers of shadow IT is that most of them have no earthly idea what it is. So let’s start there.

Gartner has defined Shadow IT as meaning IT devices, software, and services (including cloud services) outside the ownership or control of the IT department of a business.

Once lawyers understand the definition, they generally say that everything is within the control of their IT department. Most of the time, that answer would be wrong, though many don’t know it.

Just the Facts Please

Studies by Gartner have revealed that Shadow IT constitutes an amazing 30-40% of IT spending in big enterprises. Advisory firm CEB estimates that the right percentage is 40%. Everest Group research states that it makes up 50% or more of the spending. No need to split hairs – all three numbers are big.

Small law firms are not immune to this trend. How many law firm services are in the cloud, especially today? And are they all under the control and direction of the IT department? The likely answer is no.

Are They All Renegades?

Absolutely not. In fact, Shadow IT is sometimes implicitly permitted or even encouraged. Many would argue that Shadow IT makes businesses more competitive and allows for enhanced collaboration and innovation. In their view, users discover applications or services that allow them to do their jobs better or more easily, and IT can subsequently go in and secure the applications or services. In our experience, this is not a useful way to approach risky behavior by employees, the consequences of which can be dire.

Why do employees “go rogue”? Sometimes, the IT department moves slower than the average tortoise or routinely raises objections to what employees want to do. Undeterred, employees make an end-run around the rules – it is generally simple for those who have access to data to put it where they want and use it as they wish using tools or services that may not be authorized.

IT departments are often burdened by having a limited number of employees and constant demand for providing services. Sometimes, those who are outside of the IT department are pretty sharp technologically – and running Shadow IT operations doesn’t intimidate them.

Cloud services and other vendors make it darn easy to implement new solutions. Just think about artificial intelligence – once it was complicated to implement, now it is so easy that solo/small practitioners do it all the time.

Can’t You Control Shadow IT by Policies or Technology?

Absolutely not. Ignoring policies is routine in most places. Employees know what they want to do and policies frequently do not deter them. Often, they think the evasion of the policy is good for the law firm, that it allows for better solutions.

A good example is Dropbox, where we see many e-discovery productions made, usually without encrypting the data first before sharing it via Dropbox. There may be a policy against using Dropbox without encrypting sensitive data first, but many lawyers will ignore that policy. Using technology to block access to Dropbox is possible but very unpopular with lawyers, who do indeed have many uses for it that do not involve sensitive data. The consequence is that blocking is discarded as a solution, with IT relying on the policy instead. And we’ve seen how well that goes.

This puts the IT department in a difficult position. They mandate “don’t do this,” someone does do it – and there is no apparent harm. We say “apparent harm” because often the Shadow IT solutions are riskier. They are not vetted by the IT department which is responsible for ensuring the law firm’s security and compliance with any number of laws and regulations. Is it a conundrum? Absolutely. IT often attempts to block certain applications, but the ability of employees to find a way around the blocking is uncanny. Shucks, if Dropbox is blocked, not a problem. Google Drive, OneDrive, or any other cloud storage will work just fine.

A New Enemy in Town: Shadow Policies

Security experts have worried about Shadow IT for a long time, but now they must add shadow policies to the mix. The larger the law firm, the more prevalent shadow policies are. They are rogue policies written by a particular group or department that are never reviewed, approved, and made part of the law firm’s policies.

And yet, they expose the law firm to legal liability by setting their own duty of care to employees. If something goes south and rogue policies are discovered, the doors of legal liability may be thrown open. Many shadow policies are written by people who are not experts at writing policies – without review, they often bear little relation to the law firm’s official policies – and yet an entire department may abide by them.

Shadow policies were spurred by the pandemic, with collaboration between distinct groups becoming more intense. Perhaps it was natural that they sought to write their own policies.

As surprising as it sounds, there needs to be a policy on writing policies. Why? Because it establishes the framework of policy management, sets forth how policies should be written and approved, etc.

All policies should be in one place where all employees know they can find them. Train employees: If they discover a shadow policy that is not in the centralized policy list, they need to report that policy.

Battening Down the Hatches

In a June 2021 study by security company Hysolate, the authors stressed what seems inevitable from the data cited above. Employees need both more freedoms – and more restrictions. Moreover, almost all of those surveyed by Hysolate reported that their 2021 budgets included addressing remote IT challenges, including Shadow IT.

One statistic caught our attention. Only 7% of users do not complain about security restrictions, but the remaining 93% look for ways to bypass them. With that mentality, we can certainly understand how hard it is to contain Shadow IT.

The goal is to batten down the hatches while allowing increased employee IT freedom. 87% of respondents want to increase employee IT freedoms while 79% want to increase employee IT restrictions. IT respondents want to afford employees more freedom (the major freedoms being to browse the internet freely, installing 3^rd party apps and plugins, printing at home, and performing personal activities on work devices), but to do them securely. And therein lies the heart of the problem. Can law firms give employees more IT freedom securely? Can they really batten down the hatches?

The upside, according to the survey, is that most people believe that enhanced IT freedoms will increase employee productivity, make IT policies more palatable and reduce employee frustration.

The authors question whether the price tag of IT freedom is an increased danger to the law firm’s confidential data, but then we admittedly look at everything from a security vantage point. We shudder at the installation of unapproved apps and using endpoints for personal activities. The counterargument is that it may be possible to use endpoint privilege management, application isolation, and browser isolation to secure IT operations by employees.

Final Words

As last year’s Hysolate 2020 report noted in The CISO’s Dilemma, IT and security leaders then viewed worker productivity and enterprise security as mutually exclusive objectives. The pandemic appears to have changed that view. At this point, there is a strong push to use isolation and privilege management technologies to afford security AND IT freedom.

In conclusion, we may start to see Shadow IT come out of the shadows in law firms with the blessing of IT. Everyone is looking for solutions to the risks presented by Shadow IT – it remains to be seen if they can successfully utilize technology and processes that afford secure employee IT freedom. And to add another thought to the mix, perhaps law firms should be investigating Zero Trust Network Access (ZTNA) instead of battling Shadow IT.

. . .

© 2021 Sensei Enterprises, Inc., Shadow IT: A Serious Threat to Law Firms, Sensei Enterprises, Inc., is a legal technology, cybersecurity and digital forensics firm based in Fairfax, VA. 703-359-0700 (phone) www.senseient.com

Sharon D. Nelson is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association, and the Fairfax Law Foundation. She is a co-author of 18 books published by the ABA. snelson@senseient.com

John W. Simek is vice president of Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional, Certified Ethical Hacker, and a nationally known expert in the area of digital forensics. He and Sharon provide legal technology, cybersecurity, and digital forensics services from their Fairfax, Virginia firm. jsimek@senseient.com.

Michael C. Maschke is the CEO/Director of Cybersecurity and Digital Forensics of Sensei Enterprises, Inc. He is an EnCase Certified Examiner, a Certified Computer Examiner (CCE #744) a Certified Ethical Hacker, and an AccessData Certified Examiner. He is also a Certified Information Systems Security Professional. mmaschke@senseient.com.

Texting: Your Next Big Vulnerability (ABA Law Practice Today, 2021)

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Google Reviews 101 for Lawyers [Webinar]

Rachel Casper — Wed, 01 Dec 2021 00:56:34 GMT

Get answers to all the questions you have as a lawyer about Google Reviews from Mike Melis of Kenect with this 25-minute installment of Webinars for Busy Lawyers.

NINETY-FIVE percent of consumers relied on online reviews to help them decide which lawyer to hire, and of that group 83% indicated checking reviews was the first thing they do when finding a lawyer (Avvo, 2016).

This webinar will answer all of your questions about Google reviews. We’ll dig into the fundamentals of review generation, how to get more positive reviews, details on negative reviews, and most importantly, how to handle negative reviews.

Watch this webinar to find out:

How to deal with negative Google reviews
Why Google reviews matter more than other review sites
How to get more reviews
What to do with a bunch of good reviews once you get them

Several minutes of Q&A from the live program are included in the recording.

DOWNLOAD PRESENTATION SLIDES HERE

About the Expert

Guidance for Managing Positive & Negative Online Reviews as a Lawyer

MORE WEBINARS FOR BUSY LAWYERS ON DEMAND

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Cybersecurity Quick Tip: Windows 10 & 11 ‘Zero Day’ Vulnerabilities

Rachel Casper — Tue, 30 Nov 2021 13:07:38 GMT

All versions of Windows are affected by a new zero-day vulnerability after a failed earlier security patch — users need to be on the lookout for Microsoft to release a new one.

Details about a Windows Installer bug that a security patch earlier this month failed to fix, now with new and more serious vulnerabilities are discussed here by PC Mag. According to the article, all users can currently do is to wait for Microsoft:

Right now, there is no patch to fix this vulnerability and malware samples have been discovered in the wild. So it’s a known vulnerability and if it’s not being used already it will be pretty soon. Abdelhamid believes the only action users can take is to wait for Microsoft to release another security patch because of the complexity of the vulnerability, and “any attempt to patch the binary directly will break windows installer.”

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Language Access in the Client-Lawyer Relationship: ABA Formal Opinion 500 Provides Guidance

Rachel Casper — Mon, 22 Nov 2021 12:11:13 GMT

Last month, the ABA issued Formal Opinion 500, “Language Access in the Client-Lawyer Relationship,” offering guidance for lawyers with clients with communication differences.

Sixty-seven million Americans speak a primary language other than English and disabilities affecting communication are more common than many realize (and increase with age).

For lawyers working with clients who speak a different language or have a non-cognitive physical condition such as a hearing, speech, or vision disability, the ABA Standing Committee on Ethics and Professional Responsibility released its latest formal ethics opinion in October 2021, discussing ethical duties related to communication (under Model Rule 1.4) and competence (under Model Rule 1.1). Lawyers need to identify when language access is affecting communication and ensure “the client understands the legal significance of the translated or interpreted communications,” with awareness of potential cultural differences and social assumptions that may impact meaning. Lawyers also need to ensure that non-lawyer services are free of potential conflicts of interest and satisfy professional obligations. As summarized by ABA News:

The opinion outlines steps lawyers should consider when faced with these types of communication challenges, including the use of an impartial, qualified interpreter or translator capable of explaining legal concepts. It also makes clear that “it is the lawyer’s affirmative responsibility” to ensure the client understands the lawyer’s communications, and that the lawyer understands the client’s communications.

“Communication between a lawyer and a client is both the means by which a client is provided with the advice and explanations needed to make informed decisions, and the vehicle through which the lawyer obtains information required to address the client’s legal matter appropriately,” the opinion said.

When the lawyer seeks the services of an interpreter or translator due to either language proficiency or noncognitive disability, the lawyer must “make reasonable efforts” to ensure that client confidentiality is protected.

Additional steps specific to translation are outlined ABA Journal:

The bulk of the opinion explains that when confronted with clients with language barriers, lawyers must obtain a qualified, impartial interpreter or translator who can understood and explain the law and legal concepts in the language of the clients.

Lawyers may use “a multilingual lawyer or nonlawyer staff member within the firm to facilitate communication with a client.”

The opinion adds that sometimes a friend or family member of the clients may function as the interpreter. But in these instances, lawyers must take particular care to ensure that such a friend or family member is not biased by a personal interest.

If lawyers cannot obtain such an interpreter or translator without incurring “an unreasonable financial burden” on the attorneys or the clients, then the attorneys should either decline or withdraw from representation.

Key steps for lawyers with clients facing language-access barriers are highlighted in this Holland & Knight article. Further communication considerations for clients with disabilities are covered by ADA expert William D. Goren, JD, LLM here on his blog, Understanding the ADA.

The ABA’s opinions are persuasive authority but not binding on state authority. The Massachusetts BBO hasn’t published any related guidance — find their articles here. For additional clarity, you can always reach their Ethics Hotline on Monday, Wednesday, or Friday from 2pm – 4pm, at (617) 728-8750.

ABA Formal Opinion 500

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Some Ethical Implications of Leaving a Law Firm [Guest Post]

Rachel Casper — Fri, 19 Nov 2021 16:21:18 GMT

What ethical obligations do you need to consider when you’re leaving a law firm?

This article was originally published as “Exit Music (For A Firm)[1]: Some Ethical Implications of Leaving a Law Firm,” by the Massachusetts Board of Bar Overseers here in September 2020, and was written by Joseph M. Makalusky, Assistant Bar Counsel. Find more helpful articles offering ethical guidance published by the BBO here.

. . .

Just like the breakup of other types of relationships, separating from a law firm can be unsettling and excruciating, thrilling and invigorating or some messy combination thereof for all parties involved. In the midst of such powerful emotions lurks the danger that thoughts of attending ethical obligations are simply put out of mind. Attorneys who allow themselves to get swept away in such fashion do so at their own peril. Thus, the goal of this article is to provide some assistance by bringing to the fore the ethical duties owed to clients under the Massachusetts Rules of Professional Conduct when an attorney leaves a firm.[2]

First comes notice. Once an attorney decides to dissociate from a firm, the remaining members of the firm should be notified of that decision. Both the departing attorney and the remaining attorneys, it should be emphasized, have ethical duties concerning the affected clients. In furtherance of those duties, the departing lawyer should create a complete list of his or her client matters, and there should be an open and honest discussion between the departing attorney and the remaining members of the firm about the transition, as described in more detail below. The need for such disclosure and discussion is particularly acute for partners, as “[i]t is well settled that partners owe each other a fiduciary duty of ‘the utmost good faith and loyalty.’” Meehan v. Shaughnessy, 404 Mass. 419, 433 (1989), quoting Cardullo v. Landau, 329 Mass. 5, 8 (1952). Hence, “a partner must consider his or her partners’ welfare, and refrain from acting for purely private gain” (Meehan, 404 Mass. at 434), and he or she “has an obligation to ‘render on demand true and full information of all things affecting the partnership to any partner.’” Id. at 436, quoting G.L. c. 108A, § 20. But even associates owe a duty of loyalty to their employer if they occupy a “‘position of trust and confidence’” (Meehan, 404 Mass. at 438, quoting Chelsea Indus. v. Gaffney, 389 Mass. 1, 11 (1983)), such as when they have “access to clients and information concerning clients[.]”

In any event, sneaking away in the middle of the night with case files under your coat is hardly appropriate. And it is no better to abandon your firm and clients at high noon without reasonable notice. See Admonition No. 03-63, 19 Mass. Att’y Disc. R. 640 (2003)(associate attorney sanctioned for leaving her firm at lunchtime and never returning without notifying her employer and clients of her intent to withdraw from her assigned cases). Equally unacceptable are efforts by the firm’s remaining members to protect the firm or punish the departing attorney by withholding assistance and resources necessary for the smooth transition of the clients who elect to go with the departing attorney.

If an attorney is moving to another firm, conflicts may arise between the attorney’s current and former clients and the new firm’s existing clients. The new firm will have to conduct appropriate conflict checks to ensure compliance with the ethical duties owed to clients and former clients. See Mass. R. Prof. C. 1.7, 1.9 & 1.10. In particular, the rules of imputed disqualification should be studied with care. See Mass. R. Prof. C. 1.10(d) & (e). Boiled to their essence, these rules prohibit the new firm, “without the consent of the former client of the disqualified lawyer or of the disqualified lawyer’s former firm, to handle a matter with respect to which the personally disqualified lawyer was involved to a degree sufficient to provide a substantial benefit to the new firm’s client or had confidential information relating to the matter sufficient to provide a substantial benefit to the new firm’s client”. Mass. R. Prof. C. 1.10, Comment 8.[3] See, e.g., Admonition No. 19-26, 35 Mass. Att’y Disc. R. – – (2019)(attorneys violated Rules 1.9 & 1.10, where attorney representing husband in divorce left her law practice and joined attorney who was representing wife in divorce and both attorneys thereafter continued to represent wife without obtaining informed consent from husband). Consequently, the departing attorney must disclose the identity of his or her clients to the new firm, even before actually joining the firm. While such information may be confidential, Mass. R. Prof. C. 1.6(b)(7) helpfully provides that disclosure is permissible “to detect and resolve conflicts of interest arising from the lawyer’s potential change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.” Comment 13 to this Rule further advises that “[a]ny such disclosure should ordinarily include no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, the general extent of the lawyer’s involvement in the matter, and information about whether the matter has terminated.”

While the foregoing is undeniably important, the ethical duty imposed by Mass. R. Prof. C. 1.4 to promptly communicate with clients remains paramount. This ethical duty necessarily includes communicating to the client that her attorney is leaving the firm. See, e.g., In re Benjamin, 33 Mass. Att’y Disc. R. 38, 43-47 (2017)(respondent admitted committing a number of ethical violations, including failing to notify his clients that he was leaving his firm and would no longer be handling their cases in violation of Rule 1.4). As the American Bar Association Standing Committee on Ethics and Professional Responsibility recently saw fit to emphasize, “[c]lients are not property.” ABA Comm. On Ethics & Prof’l Responsibility, Formal Op. 489 (2019)(Obligations Related to Notice When Lawyers Change Firms)(hereinafter “ABA Formal Op. 489”) at 3. Thus, “[l]aw firms and lawyers may not divide up clients when a law firm dissolves or a lawyer transitions to another firm.” Id. Instead, the clients must be given prompt notice of the disruption so that they may make an informed decision about who their representative will be going forward.

The departing attorney and the firm should have a full and frank discussion about their respective desire and competency to retain the affected clients. See Meehan, 404 Mass. at 442 (where court adopts a rule that “encourages partners in the future to disclose seasonably and fully any plans to remove cases.”) For one reason, the outcome may bear on the content of the notice to the clients. “If a departing lawyer is the only lawyer at the firm with the expertise to represent a client on a specific matter,” for example, “the firm should not offer to continue to represent the client unless the firm has the ability to retain other lawyers with similar expertise.”[4] ABA Formal Op. 489, at 4. Or, perhaps the departing lawyer is moving to a firm that has a conflict that would ethically prohibit the continued representation of a particular client. In such cases, the respective client must still be advised of the attorney’s departure, but the notice would offer the client the choice to either remain with the departing attorney (or firm, as the case may be) or seek new counsel altogether.

In the situation where both the departing attorney and the firm are willing and able to competently represent the clients, the best practice is to work collaboratively to craft a joint notice that presents to the clients the choice between the firm, the departing attorney and new counsel. This joint notice procedure was prescribed by the Supreme Judicial Court in Pettingell v. Morrison, Mahoney & Miller, 426 Mass. 253, 257 (1997), citing Meehan, 404 Mass. at 442 n.16, and is the preferred method under the Model Rules of Professional Conduct. See ABA Formal Op. 489, at 2 & 3. Although it may be exceedingly tempting for a departing lawyer to answer the siren call to preemptively send a one-sided notice to clients, that course is likely to lead to discord with the firm and confusion for the client. See Meehan, 404 Mass. at 436-38. While the friction caused by a departure may threaten to set ablaze notions of cooperation, everyone is better served if the cool heads of true professionals prevail.

If, despite good faith efforts, agreement on a joint notice cannot be reached, both the departing attorney and the firm may send their own communication to the affected clients. Significantly, “[l]aw firms may not restrict a lawyer’s prompt notification of clients, once the law firm has been notified or otherwise learns of the lawyer’s intended departure.” ABA Formal Op. 489, at 2. Beyond that, an attorney’s cry that he failed to promptly notify his clients because his firm or superiors forbade him to do so would fall on deaf ears, since “[a] lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.” Mass. R. Prof. C. 5.2(a). But that wail might prompt a bar counsel investigation of any firm lawyer who ordered, ratified or failed to take remedial action of that unethical conduct. See Mass. R. Prof. C. 5.1(c). In short, the duty to notify clients may not be stymied or avoided.

Turning then to the substance of the required notice, no explicit ethical rule sets forth mandated language. Nevertheless, the notice should (i) be in writing, (ii) clearly convey the client’s right to choose counsel (iii) contain no misrepresentations or false or misleading statements[5] , and (iv) be civil and simple. Where separate notices are being sent by the departing attorney and firm, the notices shall not recommend that the client employ the sender of the respective notice, nor urge the client to sever the relationship with the non-sender of the respective notice. Each such notice, however, may express the sender’s willingness to represent the client.

Then comes client decision. “The law should provide the fullest possible freedom of choice to clients.” Pettingell, 426 Mass. at 257. And so it does; the client retains the right to decide who will handle her legal affairs (absent a disqualifying conflict, see Mass. R. Prof. C. 1.7(a), 1.16(a) & 3.7(a), or the need for judicial approval, see Mass. R. Prof. C. 1.16(c)).

Relatedly, it is unethical for a lawyer to “participate in offering or making . . . [an] agreement that restricts the right of a lawyer to practice after termination of the relationship.” Mass. R. Prof. C. 5.6(a). “An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer.” Id. at Comment 1. As the Supreme Judicial Court has opined, “Rule 5.6 exists to protect the strong interests clients have in being able to choose freely the counsel they determine will best represent their interests.” Eisenstein v. David G. Conlin, P.C., 444 Mass. 258, 262 (2005). Thus, it has been held that firms cannot directly or indirectly infringe on a client’s freedom of choice by economically punishing or dissuading departing attorneys from competing for clients. Compare Eisenstein, P.C., 444 Mass. at 262-65 (where court held that provisions imposing economic disincentives on withdrawing partners who competed with law firm were unenforceable), and Pettingell, 426 Mass. at 255-58 (where court declined to enforce a “forfeiture-for-competition clause” against withdrawing partners), with Pierce v. Morrison Mahoney LLP, 452 Mass. 718, 719 & 724-29 (2008)(where court enforced provision that imposed financial consequences on all withdrawing partners irrespective of future competition).

In short, the affected clients of a departing attorney must be advised of their right to choose their counsel and be afforded the freedom to do so, without any repercussions.

Then comes withdrawal and the proper transition. Finally, after the client receives the appropriate notice and has made known his decision concerning the continued representation, it comes time for the departing attorney and firm to follow that direction and ensure a smooth transition.

The client’s decision triggers the activation of a series of ethical rules. Under Mass. R. Prof. C. 1.16(a)(3), the discharged attorney is obliged to withdraw from the representation of the client. If the client’s case is in litigation, all discharged attorneys must comply with the rules of the relevant tribunal in securing their withdrawal. See Mass. R. Prof. C. 1.16(c). Keep in mind too that, pursuant to Mass. R. Civ. P. 11(b), “[t]he filing of any pleading, motion, or other paper shall constitute an appearance by the attorney who signs it, unless the paper states otherwise.” To avoid the risk of ongoing liability, a discharged attorney should take care to file a notice of withdrawal even if other members of the firm continue to represent the client.

Perhaps of even greater import, all discharged attorneys have an ethical duty to “take steps to the extent reasonably practicable to protect a client’s interests.” Mass. R. Prof. C. 1.16(d). This mandate expressly includes “surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or 5 incurred.”[6] Id. This is echoed in both Mass. R. Prof. C. 1.15(c)(“a lawyer shall promptly deliver to the client . . . any funds or other property that the client . . . is entitled to receive.”), and Mass. R. Prof. C. 1.15A(b)(“A lawyer must make the client’s file available to the client or former client within a reasonable time following the client’s or former client’s request for his or her file.”) With respect to client files, “[t]he firm and departing lawyer must coordinate to assure that all electronic and paper records for client matters are organized and up to date so that the files may be transferred to the new firm or to new counsel at the existing firm, depending upon the clients’ choices.” ABA Formal Op. 489, at 4. Additionally, ABA Formal Op. 489, at 7, offers the following guidelines:

Once the lawyer has left the firm, the firm should set automatic email responses and voicemail messages for the departed lawyer’s email and telephones, to provide notice of the lawyer’s departure, and offer an alternative contact at the firm for inquiries. A supervising lawyer at the firm should review the departed lawyer’s firm emails, voicemails, and paper mail in accordance with client directions and promptly forward communications to the departed lawyer for all clients continuing to be represented by that lawyer.

As shown, even after being discharged, an attorney must still be guided by the best interests of the former client. Be warned that a discharged attorney who reacts to the taste of sour grapes by intentionally complicating or impeding the transition process will only add to his own misery. See, e.g., Mass. R. Prof. C. 1.16, Comment 9 (“Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client.”); Mass. R. Prof. C. 1.15A(b)(“a lawyer may not refuse, on grounds of nonpayment, to make available materials in the client’s file when retention would unfairly prejudice the client.”) Finally, attention is also called to the Massachusetts Bar Association’s ethics opinion concluding that, “[w]hen lawyers change firms and clients move with them, new engagement letters should be executed with the new firms as to hourly matters, and must be executed as to contingent matters, even when no material terms change.” Opinion 2017-1 (2017).

Conclusion

Bar counsel hopes that a review of the rules discussed above and an appreciation of the wisdom behind them will bring some measure of peace to attorneys who exit their law firm and to the attorneys who stay behind. On the other hand, the failure to take heed may result in disciplinary consequences. Therefore, whether the separation feels like a skyless day or is an amicable parting of colleagues, all attorneys should retain the sense of their ethical obligations to affected clients. 6 See also Mass. R. Prof. C. 1.15(d)(1)(“Upon final distribution of any trust property . . . the lawyer shall promptly render a full written accounting regarding such property.”)

Notes

[1] With credit to Radiohead, Exit Music (For A Film), on OK Computer (Parlophone & Capitol Records 1997).

[2] While the ethical duties owed to clients generally remain the same in cases of voluntary and involuntary departures, this article will focus on the former situation. Also note that the term “firm” used in this article is intended to be more restrictive than as defined by Mass. R. Prof. C. 1.0(d), see also Comments 1-4 to Rule 1.10, in that it does not sweep within its ambit sole proprietorships, legal services organizations, legal departments of corporations or government entities.

[3] As for the former firm, “Rule 1.10(b), operates to permit [it], under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm.” Mass. R. Prof. C. 1.10(b), Comment 7. 2

[4] See Mass. R. Prof. C. 1.1 (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”)

[5] It may be worth reminding lawyers that “[t]ruthful statements that are misleading are also prohibited by this Rule.” Mass. R. Prof. C. 7.1, Comment 2.

. . .

This article was originally published by the Massachusetts Board of Bar Overseers here in September 2020, and was written by Joseph M. Makalusky, Assistant Bar Counsel. Find more helpful articles offering ethical guidance published by the BBO here.

Free & Confidential Consultations:

Lawyers, law students, and judges in Massachusetts can discuss concerns with a law practice advisor, licensed therapist, or both. Find more on scheduling here.

The post Some Ethical Implications of Leaving a Law Firm [Guest Post] appeared first on Mass LOMAP | An LCL Program.

Microsoft Teams for Lawyers [Guest Post]

Rachel Casper — Fri, 12 Nov 2021 22:11:48 GMT

As both the adoption and the capabilities of MS Teams continue to grow, we’re sharing legal tech experts’ take on essential considerations for lawyers.

We thank Michael C. Maschke, Sharon D. Nelson, Esq., and John W. Simek at Sensei Enterprises, Inc. for this guest post!

. . .

Background

Thrust into the Work-From-Home (often seen online as WFH) environment, many lawyers scrambled to learn the technologies that would allow them to continue their practice of law during the pandemic. Finding solutions that would allow lawyers to continue to take client meetings, albeit virtually, became a priority. The pandemic way of life was new to all businesses – law firms included – having the ability to continue to interact with clients was a must.

From the outset, Zoom dominated the video conferencing market. Over the past year, Zoom has grown in popularity and usage. According to Zoom, there are over 300 million daily participants – up from just 10 million at the start of 2020. As popular as Zoom is, that doesn’t mean it’s the only possible solution for your firm. There are other video conferencing providers to evaluate, including one that you may already be paying for – Microsoft Teams.

Microsoft Teams is a communication and collaboration platform developed by Microsoft and is part of the Microsoft 365 subscription service offering. Teams is often thought of as a competitor to Slack, offering workspace chat rooms, video conferencing, and file storage/sharing. Microsoft Teams is much more than a Slack alternative and replaced Skype for Business, which has been retired.

There is a free version of Teams for users who don’t already have a Microsoft 365 subscription, but it comes with some usage limitations such as a participant capacity of up to 100 users and a maximum meeting length of 60 minutes. These limitations don’t exist with the Business Basic, Business Standard, or E3 subscription levels.

Features Explained

Microsoft Teams offers a variety of features and is more than just a video conferencing solution. Teams allows users to message one another through chat, allowing users the ability to format text, send emojis, and share files. It supports both one-on-one as well as group chats.

Attorneys can hold one-on-one audio or video meetings using Teams, which can be quickly started from the chat window, contact card, Outlook, or Teams app. It’s as simple as typing the name within the search box and selecting the type of call you want to make (video or audio-only) – and we know with attorneys, the simpler the better.

Teams allows administrators to create a “Team,” which is a group set up for a common purpose that users can join – such as your employees. Within the Team, administrators can create separate channels which allow team members to communicate without the use of email or group texting. You can have separate channels, for example, one for all employees and one for firm management. Channels can be set up as Standard or Private. Private channels are only accessible to the Private Channel members and should be used when creating a channel around specific team roles or for attorneys working on an individual legal matter. All users of the Team can view the contents of a Standard channel, which can be used to post updates to company events, news, meetings, or policies for all employees to see – like a “Wiki.”

Virtual meetings can be scheduled or created ad hoc. Users of a channel can see that a meeting is in progress and join. There is also a plugin for Microsoft Outlook that can be used to invite others into a Teams meeting. Video conferencing is provided by the software and supports the ability for users to call (via their computer) into the meeting, rather than having to join through the Teams app. Inbound calls via telephone are limited and require additional licensing costs. Users who don’t already have Teams installed have the option to join through their internet browser as well.

Admins can add company branding to a meeting, including the meeting waiting room or lobby. The lobby is where you can stage participants before joining the actual meeting. The host has granular control to allow specific individuals to enter the meeting from the lobby. Teams now supports live captions improving accessibility for all users.

Like Zoom, Teams allows users of a meeting to share their screen as well as use the Whiteboard, providing the ability to write, draw or sketch on the Whiteboard collaboratively. Teams allows users to view up to 49 participants on the screen at once. For those users that get distracted easily, you soon will be able to hide your video feed during calls and, conversely, can also pin it up to the screen.

For those firms looking to host webinars, Microsoft’s Advanced Communications plan can be added to your Microsoft 365 subscription, allowing users to host meetings with up to 10,000 participants in “view only” mode. There is a 60-day free trial if you’re not ready to commit without first trying. Users can have interactive webinars for up to 1,000 users – if the attendance goes over this limit, Teams will swap over to a presentation-only mode. Microsoft is temporarily increasing limits for live meetings to support up to 20,000 attendees until the end of the year. This is an added benefit if you’re currently paying for GoToWebinar or a similar webinar hosting provider.

Microsoft has introduced Teams Calling, a cloud-based phone system. Again, the idea is to stay connected with your contacts through Teams, while working from home or shifting to part-home, part-office. Calls to other Skype for Business and Microsoft Teams users are free. If you want to call regular phones, firms will need to add Microsoft 365 Business Voice. For most lawyers, there will be an additional monthly cost of $15.00 per user per month as most firms don’t subscribe to the E5 product, which now charges $57.00 per month per user.

For Teams Meetings, if you wish to add a dial-in phone number, firms will need to subscribe to the Microsoft 365 Audio Conferencing add-on, which is currently free to add to your account. This will give users the ability to call into the meeting if necessary.

Security

For a while now, privacy and security features have been lacking in Microsoft Teams. Only recently has Microsoft started to update the cybersecurity protections implemented by the Teams application.

End-to-end encryption is scheduled to be released in November 2021 for one-on-one ad hoc Voice-over-Internet Protocol (VoIP) calls. The data encryption will only be available to paying subscribers, and can only be used if both the caller and receiver have enabled the feature and opted in. Zoom introduced end-to-end encryption last year, so a year later Microsoft is now starting to play catch-up when it comes to security. For those meetings with more than one participant, end-to-end encryption is coming later, and no exact time frame has been given.

Some additional security features within Teams that are worth noting – hosts can now disable an attendee’s video camera if needed and are provided with conferencing controls that can prevent other users from joining a meeting.

Microsoft Teams also supports Multi-Geo Capabilities, which gives firms with offices in more than one geographical location the ability to choose the location of data centers used to store their information. Microsoft will also be implementing a click-safe link feature that brings URL scanning and “time-of-click” verification of URLs in meeting links shared through email messages to prevent phishing attempts.

Final Thoughts

The adaptation to the current work environment was difficult for most firms to make. Many users have found it hard to stay as productive working remotely as when they were in the office. Some have become more productive, taking advantage of new technologies and the added time to their day without the need to commute to work.

Keeping in touch with clients has become the top priority for maintaining and nurturing existing and new relationships. Video conferencing apps have opened a virtual door to staying connected with firm members as well as clients, and the Microsoft Teams app provides another solid option when evaluating these solutions.

While Microsoft Teams may not be the most widely used video conferencing option, it holds up when comparing its features against Zoom. It even offers some collaboration features which Zoom does not have. Best of all, you may already have access to the software at no additional cost through your firm’s Microsoft 365 subscription.

. . .

© 2021 Sensei Enterprises, Inc. Microsoft Teams for Lawyers, Sensei Enterprises, Inc., is a legal technology, cybersecurity and digital forensics firm based in Fairfax, VA. 703-359-0700 (phone) www.senseient.com

Sharon D. Nelson is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association and the Fairfax Law Foundation. She is a co-author of 18 books published by the ABA. snelson@senseient.com

John W. Simek is vice president of Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional, Certified Ethical Hacker and a nationally known expert in the area of digital forensics. He and Sharon provide legal technology, cybersecurity and digital forensics services from their Fairfax, Virginia firm. jsimek@senseient.com.

Michael C. Maschke is the CEO/Director of Cybersecurity and Digital Forensics of Sensei Enterprises, Inc. He is an EnCase Certified Examiner, a Certified Computer Examiner (CCE #744) a Certified Ethical Hacker and an AccessData Certified Examiner. He is also a Certified Information Systems Security Professional. mmaschke@senseient.com.

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Carefully Scrutinize Trust Accounting Claims – Legal Tech from the Trenches

Laura Keeler — Thu, 04 Nov 2021 16:29:31 GMT

Lawyers using trust accounting functionality in practice management software need to be on the lookout for limited capabilities.

This article was written by Roberta Tepper, lawyer assistance programs director at the State Bar of Arizona, and Laura L. Keeler, practice management advisor at LCL Mass LOMAP, and originally appeared in The Finance Issue (September/October 2021) of the ABA’s Law Practice Magazine.

Managing a client trust account. Unless you are also an accountant, chances are those words make you feel a combination of fear/anxiety and loathing. In our experience, even lawyers who successfully manage their operating account are terrified of managing a client trust account. So, when lawyers look for practice management software, they may be looking for a platform that “does” trust accounting. But a claim that products include trust accounting may lull the unwary into choosing a product that doesn’t practically suit their needs.

Client Trust Accounts

It’s imperative to understand what is required for the management of a client trust account—a pooled account where funds belonging to multiple clients may be jointly maintained. Each state has its own rules about the requirements, and even what those accounts are termed can vary—Interest on Lawyer Trust Account (IOLTA), Interest on Lawyer Account (IOLA) or client trust account. Always check your state’s rules; if your state or local bar offers the services of a practice management advisor, check in with them.

This kind of account requires additional records and a specialized type of monthly accounting—usually referred to as the (dreaded) monthly three-way reconciliation. To successfully perform a three-way reconciliation, you must balance the totals reflected on the bank statement (adjusted for outstanding amounts in unnegotiated disbursements) and general ledger or checkbook register (adjusted for checks not yet cashed) with the total reflected in the individual client ledgers/accountings. In most states, maintaining a record of that reconciliation is required; in some states, trust accounts and the related recordkeeping and management is subject to random audit by the regulatory body.

Typically, legal practice management software (LPMS) that includes accounting functions includes the ability to handle the recordkeeping demands for a “standard” operating account, through a native application or through integration with another financial tool, like QuickBooks. It is the ability, or inability, to maintain and produce individual client ledgers—including deposits, disbursements and a running balance, or an equivalent, of the funds held for each client—that is the downfall of many claims that the LPMS “does trust accounting.”

Know What Functionality is Included, or Not

If you want true full-function trust accounting, options such as CosmoLex, Zola Suite and TrustBooks provide everything you need. There are many more that claim to do so but do not. So, let the buyer be aware. LPMS may offer tiered pricing; first confirm that the tier you are considering can integrate with accounting systems on any level. Some base-level tiers, like Clio Manage’s Starter tier, do not have that ability. They may be suitable for lawyers who do not take advanced fees and costs, and do not negotiate funds in which third parties have an interest. Other LPMS offer time and billing but not accounting, or may include financial accounting but not features specific to trust accounting. The bottom line is that you need to understand what you will get.

Not All Integrations Are the Same

Several platforms claim trust accounting functionality through integration with another tool, frequently QuickBooks. It is essential to know with which financial tools the platform integrates or does not. You’ll have to understand whether that tool can produce individual client ledgers (or accountings) that you need to do the required monthly reconciliation. Accounting products not explicitly created for lawyers (including QuickBooks, Xero and others) frequently do not come out equipped to produce those individual records but may do so with extra steps or workarounds.

Be sure you get specific information about integrations. For example, LPMS may work only with QuickBooks Online (which has benefits for remote accessibility, but simplified functionality), not legacy desktop software. Check whether the integration choices meet your firm’s needs. More advanced accounting functionality may require sticking with QuickBooks for desktop, which is unlikely to integrate with the LPMS that touts QuickBooks integrations.

Any synchronization may be “one-directional,” not “bidirectional”; it’s important to understand which you are getting. With one-directional sync, expense-related information added in LPMS can be pushed out to QuickBooks or Xero to avoid duplicate data entry. If you spot a mistake and fix it in the accounting program, it may not automatically reflect back in your billing system. While that causes some manual work and checks, integrated options do alleviate some manual data entry. When a client-accrued expense is entered in LPMS, most integrations will reflect the expense in the invoice in the accounting system; similarly, changing the invoice status in LPMS should push out the update to the accounting integration. Some programs offer more options. For example, with Xero integrations, you can specify an expense category and tax account codes in the LPMS and sync through the integration to accounting records.

While generic accounting integrations offer benefits, even high-end integrations lack the full functionality built into legal-specific trust accounting programs, such as the ability to instantly see the current balance of a client’s trust account while billing, built-in safeguards against overdrafts and production of three-way reconciliation reports.

Payment Processing Alone is Not Trust Accounting

Lawyers are increasingly using legal payment processing systems (like LawPay, LexCharge or Headnote) to offer convenient solutions to their clients. These services can produce customized invoices, accept payments and permit the lawyer to direct funds to the appropriate account. These payment processing tools frequently integrate with both LPMS and/ or stand-alone time and billing solutions. The utility of these products can cause a lawyer to believe that they are providing trust account management.

While legal-specific payment processors’ functionality can help facilitate compliance with trust account rules (including safeguards to prevent commingling of trust and operating accounts), payment processors aren’t full-on trust accounting. For example, they can produce some financial reporting but aren’t set up for automatic three-way reconciliation. It is the lawyer’s responsibility to use this and other legal billing and accounting tools properly.

While any reputable application will maintain records and audit trails relating to deposits and may assist with trust account management, they are almost certainly not the entirety of the records required under your jurisdiction’s trust accounting rules. Just as a LPMS may claim to “do” trust accounting or be “trust account compliant,” you, the lawyer, are responsible for verifying the records the platform creates and does not create. For example, your credit card processor won’t produce individual client ledgers with a record of all deposits and disbursements made for the benefit of the individual client.

The Bottom Line

Trust accounting is frequently any lawyer’s kryptonite—or if not the actuality, at least the fear of doing it wrong, random audits and possible disciplinary action. Using technology to assist you in managing the client trust account is not only an option but usually necessary, particularly if you can’t retain an accountant to assist. As in all other things relating to your practice and technology, you must know what you need and then be analytical about what each product you are considering offers. Knowing the rules, knowing your practice and then carefully considering the reality of the claims made by software vendors will help you, as will consulting with your state or local bar association’s practice management advisors.

. . .

©2021. Published in The Finance Issue, Vol. 47, No. 5, September 2021, by the American BarAssociation. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

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New Software Scam

scsmallfirm — Thu, 08 Apr 2021 19:03:00 GMT

Do you have antivirus/malware software on your PC/Mac/Server? If so, pay close attention to that software’s renewal terms. Watch out for any future phishing emails that contain an attached invoice. The scam asks you to either click a link to renew your subscription or call the phone number listed on the fake invoice to cancel.

Tips to Avoid Antivirus / Malware Software Scams

Visit the software company’s verified URL and pay through the software company’s portal
Calendar renewal dates
Keep your antivirus/malware software up to date
Know the general terms of all software on your PC/Mac
Avoid paying invoices through email
When in doubt, look in the software settings to find Support info. Don’t always trust contact information on search engines because sometimes the business information can be claimed by scammers.
Sometimes scammers pry on your browsing habits or purchases. Be sure to limit browser data collection by checking your browser’s security and browser settings
Keep all other software on your PC or Mac up to date
Educate your staff on technology scams so they know what to watch out for too
Check with your IT professional to make sure the software you use is up to date with today’s cybersecurity market, malware, scams

Visit www.scbar.org/tech for great links or email pmap@scbar.org for more advice.

Be a Gallant, Not a Goofus: Best Practices for Online Video Proceedings

scsmallfirm — Thu, 08 Apr 2021 18:32:14 GMT

As a kid, a visit to the doctor or dentist also meant reading Highlights for Children in the waiting room. My favorite part of Highlights was the Goofus and Gallant comic strip, which compared the actions of Gallant, who didn’t interrupt his parents, shared toys with his friends, and didn’t pull girl’s hair, to those of Goofus, who did the opposite.  Gallant wasn’t perfect, but his actions were to be emulated. Being like Goofus was to be avoided.

    To be a Gallant, and not a Goofus, here are tips:

Dress for success. A video court proceeding is still a court proceeding. Please don’t be the person who appears at a proceeding in a swimsuit by a pool, or, under their covers with bedhead. Wear something that you would wear to a live proceeding.
Practice makes perfect. Most of the common platforms allow you to test your video and audio setup before a proceeding. How do you look? How do you sound? Consider investing in a new camera rather than using the setup that came with your laptop. Connect to the internet via a network cable if you can. It will be more reliable than wireless.
Know your surroundings. If you are on Twitter, check out @ratemyskyperoom to see what a difference lighting and background make. What is your background like? Is anything confidential in view? Do you look like you are an organized professional, or do you look like you are being held hostage? If there is too much noise, try to move your setup. Do the best you can. At some point or another, everyone reading this is going to find their setup interrupted by dogs barking, children in need, vacuuming, or the appearance of an army of landscapers with leaf blowers blowing.
Speaking of backgrounds, steer away from virtual backgrounds in court proceedings. Your children may think it is cool if you are on the bridge of the Death Star, but typically judges are not impressed.
Try to look in the camera when talking. My colleague Jack Pringle puts a post-it note next to his camera to remind him where to look.
Coordinate and lay some ground rules. Does everyone have a set of exhibits? Have they been shared with each other and with the court? Do your witnesses have access? Consider requesting a brief meeting with the judge a day ahead of time to make sure that everyone understands the sequence of witnesses and exhibits.
Make sure everyone has contact information in case someone gets disconnected, and generally talk through what to do if someone unexpectedly loses internet connectivity. Instruct everyone how to log back in if a connection is lost temporarily – some courts lock hearings after they start.
If you will have witnesses, google “witness checklist” for something that you can send to them so they know what is expected. There are plenty of examples out there so you should not have to reinvent the wheel.
Speaking of witnesses, witness coaching is becoming a concern. You need a setup that allows the lawyer and the witness to appear on screen simultaneously. Consider placing the witness in a different room. The added bonus to being separated is that neither of you must wear a mask. At the end, after talking for an hour or two, you won’t feel like you have just climbed Mount Everest. Make sure that the witnesses don’t have easy access to electronic devices – ask what they have within view. Ask whether they are alone.
Make sure everyone has waived their right to a live hearing.
Make sure no one is recording the proceeding.
Mute your microphone when you aren’t speaking. (My mother’s advice to be seen and not heard has served me well.) Even if you can’t see or hear the judge and other parties, assume that they can see you, and act accordingly.
Close your email and turn off your reminders. Don’t have any distractions. You may think that you can set your fantasy football lineup or answer emails and no one will notice, but trust me, everyone knows you are not engaged. If you don’t take your phone out to check Twitter at a live hearing, don’t do it during a proceeding.
Be vigilant about talking over people. If it even looks like the judge is opening her mouth, make sure you are not speaking over her.
Confirm whether you need a court reporter. If you do, make sure the court reporter has adequate equipment and bandwidth. If the court reporter needs to, consider allowing the court reporter to use an extra office in your office.
If you lose the contact information for a proceeding, go to sccourts.org, and then go to the Calendar option on the upper right hand of the screen, put your cursor over it, and click on Monthly View. When you get there, go to the date of your proceeding and then click on the court you need. That will lead you to a page that lists the judges with proceedings that day. Find your judge and click on the link for the virtual courtroom. If you are prompted for a password, it is usually sccourts. Each judge’s page also contains call in numbers and helpful instructions.

We all have some Gallant and Goofus in all of us. Be patient and kind to yourself and others when things don’t go according to plan. We’re doing the best we can under the circumstances. Video proceedings are not going away, so the time you put into learning and thinking about this is time well spent.

Written by:
Michael J. Polk, Chair, Technology Committee
Belser & Belser, PA
Columbia, South Carolina

Password Tip

scsmallfirm — Fri, 26 Mar 2021 20:49:37 GMT

Have you ever saved a password in your browser, while logging into a website? If yes, it is a good idea to turn off that feature, which allows you to save that information, in your browser and choose a password manager!

Here are the steps to turn off the “save password” feature by browser:

Chrome

In Chrome, look for hamburger menu (icon looks like three horizontal lines stacked on top of each other) on far right hand side of browser, click Settings, click Autofill, click Passwords, toggle “offer to save passwords” off.

Firefox

In Firefox, look for hamburger menu (icon looks like three horizontal lines stacked on top of each other) on far right hand side of browser, click preferences, click Privacy & Security, look for Logins and Passwords section, uncheck “Ask to save logins and passwords for websites.”

Microsoft Edge

In Microsoft Edge, – click the three dot menu button (look for an icon that looks like …) on the far right hand side of the browser, Click Settings, Click the Passwords button, Toggle “Offer to Save Passwords” option to off.

Follow @SCBar_PMAP on Twitter for additional tips and contact pmap@scbar.org for assistance.

Seven Simple Suggestions

scsmallfirm — Sun, 03 Jan 2021 16:53:00 GMT

I know what you are thinking: don’t I have enough on my plate right now without making New Year’s resolutions? I agree. That’s why I have chosen a few very simple suggestions that might actually make your life a little simpler. Some of these resolutions, I mean, suggestions, also help you stay out of ethics trouble (win-win!). They are in no particular order of importance – start with the easiest for you to do.

Get a password manager. We already know that passwords need to be complicated in order to be strong and we shouldn’t use the same one more than once (or write them on sticky notes or store them in Word file). The solution is a password manager. There are lots of good free and cheap password managers. Need to create a new password? Tell the password manager how long your want it and if you want to use letters, numbers, special characters, or all three. The password manager will create a password and save it for you. Later, when you visit that website and have to login, the password manager can fill in the information for you. All you need to remember is your login and password for the password manager! Popular password managers include Dashlane, LastPass, 1Password, and Roboform. You can also see if your internet security software offers a password manager – many do.

Start using two factor or multi-factor authentication (MFA). I know that sounds techie, but stay with me. The easiest way to explain 2FA or MFA is to tell you that you’ve probably already used it. Log in to most financial institutions and you have to enter your password and then perform a second step, such as entering a code you receive on your phone by text. Voila! That’s MFA! Start adding this extra security layer now with all your email accounts. If you have a Google account, set up “2-Step Verification.” Not sure how? Google it. For the rest of the year, when you login to any of your online accounts or websites, look for instructions on how to set up MFA (and don’t forget that new password manager can store those logins and passwords). Trust me on this one, it may be the best and easiest way to protect yourself from hackers and safeguard client confidentiality.

Check Google My Business. Yes, that’s actually what Google named their free marketing service. Do this: Google your law firm. Alongside the usual results list, you’ll see a block with photos, a map view, your firm address, phone, and other information. This is a free business listing and you need to “claim” it if you haven’t already. Click “Own this business?” or “Claim this business.” Do it, because if you don’t, someone else may and you may not like what they do next. But that’s not the only reason to claim it. You’ll be able to correct and add information and take other steps to help clients find you better.

Try not to email clients anything confidential. Email fraud can occur when a lawyer emails details about a case to clients and other parties. If one of the people has had their email breached, the hacker may be watching email exchanges waiting for an opportune moment to intervene. This usually happens once they learn about money changing hands. They’ll spoof one of the parties’ email address and send their own settlement offer or bank routing instructions. If you need to discuss a case, use a client portal in a practice management program. If you’re using a cloud practice management program such as Clio, MyCase, Cosmolex, Rocket Matter (etc.) talk to the provider about how to set up secure portals for clients. Besides being more secure, clients appreciate being able to see how their case is progressing.

Make sure that you have cyber insurance. According to a 2019 survey by the American Bar Association, one in four law firms have experienced a security breach. General liability and professional liability insurance policies may not cover all the costs of a cyber incident. Talk to your carrier and find out what your policies cover. Most lawyers discover that they need to add a cyber liability policy. Whether you are shopping for cyber insurance or reviewing your current policy, there are numerous articles on the internet outlining the claims that are frequently denied or not covered by cyber insurance, so read policies carefully.

Hire a virtual receptionist. Clients hire law firms that have a live human answering the phone. For many small firms, a virtual receptionist/answering service can be a lifesaver. Banish the idea of the impersonal answering service your doctor uses after hours. Today’s virtual receptionists can help you all day by handling tasks a real receptionist would do. There are many companies to choose from, including Call Experts, Smith.AI, Ruby, and LexReception.

Call the Bar for free help. The South Carolina Bar has lawyers on staff to answer questions about practice management (including technology), ethics, fee disputes, pro bono opportunities, and more. Bonus resolution: join a Bar section or committee for your practice area and take advantage of the free listserv!

By Courtney Troutman
Director
Practice Management Assistance Program
South Carolina Bar

Getting Better All the Time

scsmallfirm — Thu, 10 Sep 2020 21:45:00 GMT

In 1981 or 82, because of my first job as a waiter at Chi Chi’s Mexican Restaurant, I needed transportation. My first car was a 1969 Chevy Imperial that my Uncle Eddie’s vocational rehab class rebuilt as a school project (including installing a sweet 327 engine). My Uncle Billy bought me a timing light, and other assorted tools, and he spent some time showing me the finer points of tuning up an engine. I am pretty sure that he gave me a Chilton’s manual, but that may be something I have added with the passage of time.

Nowadays If I open the hood of my Honda Accord, I can barely find the windshield washing fluid, and if I was inclined to work on the engine (which I am not) I am sure that I would need a lift and this or that special tool.

Similarly, years ago, when I reached a point where I had a home computer and an office computer, working remotely consisted of calling the receptionist to get the rundown of what was happening the office, checking my voice mail, and shuttling a 3.5 inch floppy disk between work and home.

Times have changed. Many attorneys and their staffs are learning how to work remotely on the fly. It remains to be seen what changes will be permanent. Now is a good time to pause and consider how things are going, keeping in mind the attorney’s ethical duties of confidentiality and competence, and how to improve. Some commentators, including David Ries of Clark Hill in Pittsburgh, suggest you focus on three main areas: technology, policies and procedures, and people.

If you are having trouble with your internet speed or reliability at home, it might be time to invest in a new router, your gateway to the internet. I recently bought a new entry level TP-Link router for under $100, and I can already tell a difference in speed and reliability. I was able to set up the router in about 10 minutes. If you have dead spots in your house, or if your work computer is far away from the router, consider purchasing a Wi-Fi extender, Powerline over Ethernet adapters, or possibly even a mesh Wi-Fi network. The latter is the costliest but may be the best long-term solution. Make sure that WPA2 encryption is enabled. This helps keeping your connection secure.

If you use public Wi-Fi, it is worth subscribing to a Virtual Private Network (VPN) to ensure that your connection to the internet is private. A VPN essentially provides an encrypted tunnel to the internet. Avoid a free VPN. There are many good ones out there, but I use Surf Shark. It is easy to install, covers my family’s devices, received good reviews, is secure enough for my purposes, and was on sale for a couple of dollars a month for a couple of years. Also, don’t leave your computer or other devices unattended in a public place even if you are only going to be gone for a second.

There is no such thing as perfect security. The good news is that you don’t need to outwit the NSA or any of the alphabet agencies or foreign actors. Just don’t be an easy target.

Do you know where your backups are? If you used to back up to your server or NAS device where are you backing up to in your home office? What about your staff? I use BackBlaze because it is a cost effective solution for me, but some colleagues use Carbonite. I also use Microsoft 365, which is configured to provide another backup of my documents.

If you travel with your equipment, what happens if it gets lost or stolen? Make sure that you have passwords enabled for your devices. If encryption is an option, make sure it is enabled. If your hard drive is encrypted, and it gets stolen, an encrypted hard drive will be useless to the thieves.

For reviews of tech equipment, I usually start with the Wirecutter on the NY Times website and go from there. If an item is pricey, and I can wait, I will check camelcamelcamel.com for the best time to buy tech items from Amazon.com.

Personally, if I had a smart assistant like Google home, Amazon Echo, or an Apple iHome device, I would turn it off while I was working, or, at a minimum, when I was discussing confidential information.

Do you know how you sound on WebEx or Zoom? Some people sound like they are calling from the underwater city of Atlantis. All the services allow you to test your setup. If you do not like the way you sound, consider ordering a USB microphone. Play around with you lighting, and pay attention to your background when you are on camera. Test everything out before you need to do something, and, if your client needs to appear, check with them to make sure they can make the technology work.

Do you use a password manager? Now is the time to try one out. I use LastPass, but Dashlane and 1Password are alternatives. Hand in hand with this is to enable two factor authentication of your accounts.

The best practice is to use work equipment for work, and personal equipment for personal items. A remote worker should not share equipment with family members given the risk of inadvertent disclosure of confidential information. Make sure that your laptop shuts off after a reasonable period so that those around you are not tempted to check just one thing or play just one game when you aren’t around. Ensure that remote workers are not installing unauthorized programs on their work equipment and that their work-related apps and programs are updated – particularly security software. You may want to check to make sure that the remote worker’s access to the internet isn’t via hooking onto their neighbor’s Wi-Fi. Using a pair of earbuds or AirPods can keep people in your house from overhearing confidential conversations, particularly if you are prone to using a speakerphone. You may not think people in your house can hear what you are doing, but they can. (Those of us with children know how much they can absorb.)

Everyone needs to stay vigilant against hackers. It is a sad fact that cyberattacks have increased this year and there is no end in sight. Learn how to spot scam emails. There are great videos on YouTube. Start with the ones produced by Sophos, which are short and to the point.

What are you doing about paper? Make sure that the same safeguards you have at work are in place at home.

Lastly, it is easier than ever to keep up with tech and best practices for working remotely. For a start, I would recommend subscribing to John Simek’s Your IT Consultant Newsletter and the TechnoLawyer newsletter. The SC Bar website also contains a treasure trove of information. Check it out if you have not done so lately.

We’re one day closer to things getting better. That is something!

Michael J. Polk, Esquire
Chair
SC Bar Technology Committee
Belser & Belser, PA
Columbia, South Carolina

Take Advantage of Social Media – Learn how to stand out from the crowd

David Bilinsky — Mon, 10 Aug 2020 14:00:31 GMT

♫ All the little birdies on Jaybird Street
Love to hear the robin go tweet tweet tweet…♫

Music and Lyrics by Thomas Jimmie, recorded by Michael Jackson.

Would you pay attention to an emerging marketing platform that has seen a 663% increase in people over the last two years looking for recommendations around professional services? I would imagine you would. Twitter is that platform. Now: how many of you have a thoughtful, continual and strategic presence on Twitter that engages the community from which you draw your clients? While we are at it, how many of you have a digital media marketing plan that includes Twitter and other social media platforms? If not, according to research carried out in the UK by Orange Business, you may be overlooking a big opportunity: “[S]econd on the list are solicitors, who may not be aware of the fees they could be missing out on by not engaging with the public and other businesses via Twitter,” (https://www.legalfutures.co.uk/latest-news/twitter-becoming-key-referral-source-for-solicitors-says-research).

Orange notes that lawyers need to do more than just be ‘on’ Twitter. You need to demonstrate your expertise, show that you know what you are talking about and share information far and wide. In other words, your Twitter presence should be part of a comprehensive and strategic social media marketing plan (a “SMMP”).

How do you build your SMMP?

First, you need to learn about how SM is being used by lawyers in your area(s) or practice. Look inwards and determine which services you provide that you wish to market and learn how other lawyers (perhaps in other jurisdictions) are using SM in relation to these services. Are they engaging on Twitter and if so, what hashtags are they using? Did they create YouTube videos that speak to their knowledge of an area of law? Are they on Facebook and if so, have they posted videos, articles or interviews? How about Instagram? Reddit? Quora? Snapchat? The idea is to think beyond LinkedIn, which frankly, every lawyer should already be on.

Now, determine what people are saying about you and your firm on SM. Research using Google, Facebook, Twitter and other SM platforms and see what is being said about you and your firm, if anything. This gives you a starting point together with an assessment of the SM landscape.

Determine how your target clients are holding conversations in SM that are relevant to you and your firm. What topics are they discussing? This gives you a target of where you need to be in terms of platforms and topics.

Now set your strategy. How are you going to go about SM posts? Videos? Photos? Articles? Will you engage in Twitter conversations on select topics? Comment on recent cases (hint: don’t use your recent cases – too easy to breach client confidentiality). Establish SM goals for your marketing focus.

Schedule your time and updates for SM. You will need regular, consistent and timely updates. How much time and money will you expend? Set a budget.

Set up the metrics that you will use in determining if you are meeting your goals. You need to see if you efforts are bearing fruit.

Reach out and experiment and start to build your SM networks. Follow people. Comment. Experiment. Learn how people use the different platforms and become part of the community. Don’t hesitate to consult with SM experts to save time and speed up the process.

Your SM presence should aim to refer people back to your blog where your more detailed content is located and where people can learn about you (after all this is social media). Your blog is where you demonstrate your in-depth knowledge via the posts that you have written and people can find your contact information.

Unlike an advertisement, SM is a dialogue with your potential clients. Your skillful tweet tweet tweet can take you from being just another birdie in the tree to a rocking robin.

—

Who are the knowledgeable legal marketing personalities and organizations that are available to assist you in your marketing journey?

LMA: The Legal Marketing Association is an international organization composed of consultants, vendors, lawyers, marketers from other professions, and marketing students. It has a Western Canadian Regional Governing Board, with Vancouver’s own Susan Van Dyke of Van Dyke Marketing & Communications as the 2019 President. They are a tremendous resource for all areas of legal marketing. Follow their blog to stay current on news, trends and more. blog.legalmarketing.org

In terms of on-line presence, you should be able to learn a great deal about legal marketing by seeing what advice experts in the field place on their blogs and web pages – for free. Examples of their work allows you to gauge the impact of their work; awards allow you to determine what their peers are saying about them. Here is a sampling of those people and organizations that I and others, consider strongly influential.

Skunkworks: The team at Skunkworks have become a local tour de force for lawyers and law firms here in BC. Doug Jasinski, Marnie MacLeod and Jeremy Hessing-Lewis have all done their time in the legal trenches and speak the language of lawyers and marketing. Their blog and examples of their work are a good place to start to see what local firms have achieved in thinking about their marketing message. https://skunkworks.ca/blog/

Stemlegal: Steve Matthews and his group form a web development, publishing and strategy juggernaut for the legal profession. They are a local company with a national presence and influence. Steve is tireless – not only does he look after his legal marketing company, he manages slaw.ca – Canada’s online legal magazine, he runs lawblogs.ca – Canada’s comprehensive listing of Canadian Legal Blogs, legalpubs.ca – which tracks the latest in Canadian legal publications and runs ClawBies.ca – Canada’s annual legal blogging awards.

Eva Chan: After practising advertising, marketing, and IT law at a national Canadian law firm for over 10 years, Eva is now a social media strategist, consultant and trainer. More to the point she provides social media-related services to lawyers and law firms. A ClawBie award winner, her blog https://www.evachanweb.ca/blog/ has articles such as Social Media Opportunities and Risks, How To Write an Engaging Social Media Post and Twitter tricks and treats (aka tips). She asks (and answers) such questions as: What One Thing to Advance Women in Law Will You Do?

Fishman Marketing: Ross Fishman, although located in Chicago, has a strong presence here in Vancouver. His web site is loaded with great advice and insights into the world of legal marketing. Review his numerous case studies to gain insights into his thinking and work. Subscribe to his blog to stay current on his innovative ideas. https://www.fishmanmarketing.com/blog-2/

The Rainmakers Blog: Stephen Fairley consistently receives accolades for perhaps the best legal marketing blog on the Internet. A recent post was one of my favourites: 5 Ways to Attract your Ideal Client. Another was: How to Determine Which Social Media Networks Work Best for Your Firm. https://www.therainmakerblog.com

(Published by the Canadian Bar Association in their publication Bartalk in the columns: PracticeTalk and Dave’s Tech Tips in December 2019. The post has been updated slightly.)

British Columbia’s Civil Resolution Tribunal

David Bilinsky — Mon, 13 Jul 2020 14:00:13 GMT

“Some changes are so slow, you don’t notice them, others are so fast, they don’t notice you.” —Ashleigh Brilliant

BC’s Innovative online system resolves thousands of legal disputes—usually without lawyers.

On July 13, 2016, the legal world changed in a small but significant way when an Online Dispute Resolution (ODR) Tribunal started taking its first cases in British Columbia, Canada. BC’s Civil Resolution Tribunal (CRT) drew on prior private law examples such as eBay and PayPal’s ODR resolution platform. EBay was the proof of concept of ODR: By 2010, it was handling over 60 million disputes each year, most of which were fully resolved by the parties without any additional human intervention.

This development came after academics, scholars, the United Nations, universities, governments, private industry, lawyers and nonlawyers long debated the potential of using the power, reach and resources of the internet to settle legal disputes. This was the first time government provided a mechanism for parties to settle a dispute in a totally online forum.

THE ORIGINS OF ODR

Colin Rule, who played a leading role in the creation of PayPal’s ODR platform, is one of two recipients of the 2020 inaugural Frank E.A. Sander Innovation in ADR Award from the ABA Center for Innovation and the ABA Section of Dispute Resolution. Rule has led the development and expansion of ODR since 1999, but over the past five years he has been a key driver behind international efforts to expand access to justice by integrating court ODR into the legal system.

Much of the work in the field of ODR is based, directly or indirectly, on Rule’s innovative thinking and work in this area while first at eBay, then Modria, an ODR provider, and latterly as vice president for ODR at Tyler Technologies, together with his colleagues’ work from the National Center for Technology & Dispute Resolution (http://odr.info) at the University of Massachusetts Amherst.

There are two general types of ODR. One type focuses on using the algorithmic power of computers to help people resolve their issues. This branch uses computing power to help parties reach an optimized solution that both sides can accept, or it can help parties overcome obstacles and reach agreement.

And per a 2013 Canadian Arbitration and Mediation Journal column, “Online Dispute Resolution: The Future of ADR,” written in conjunction with Rule and Dr. Frank Fowlie:

The second [type of ODR] focuses on using computers to facilitate human communication. Instead of having the computer processor analyze data and make recommendations, this branch uses information and communications technologies to assist the interaction between the parties, helping them to reach mutually acceptable solutions. … The computer is used to create a virtual meeting space, one specifically tailored to best meet the needs of the disputants.

This second type of ODR is what the CRT is patterned on.

IMPLEMENTATION OF THE CRT

Since its launch, the CRT’s jurisdiction has steadily expanded. On July 13, 2016, the system began accepting disputes involving owners and tenants of condominium properties and corporations. On June 1, 2017, its jurisdiction expanded to small claims (all disputes $5,000 and under, such as debt or damages, recovery of personal property, personal injury and specific performance of agreements involving personal property or services). On April 1, 2019, its jurisdiction was expanded again to include certain motor vehicle accident disputes. For instance, if the CRT determines that a person’s injury is minor, damages for pain and suffering are limited to $5,500.

Importantly, the CRT’s jurisdiction is not concurrent with the courts; it is exclusive—and the vast majority of CRT decisions are final and binding on the parties. Within its legal jurisdiction, a claimant has a very limited ability to move a dispute out of the CRT to the courts. Furthermore, there is limited ability to challenge the decision of the CRT; a party unhappy with the outcome can, in most cases, only apply for judicial review of the decision on a standard of patent unreasonableness. In small claims matters, a party may file a notice of objection, which results in a new process being started in the Provincial Court. However, a financial deposit may need to be made, and the Provincial Court may assess a penalty if the person objecting doesn’t receive a better outcome than the CRT decision.

THE CRT PROCESS

As a starting place, the CRT platform contains a Solution Explorer that includes legal information and self-help tools in such areas as buying and selling, housing, loans and debts, construction, employment, insurance and property, as well as general disputes. The platform then guides potential parties through a question-and-answer protocol to lead them to relevant legal information.

For example, assume someone had a prepaid purchase card (a gift card preloaded with a certain amount of money) and was charged a fee by a merchant for using the card. The Solution Explorer would guide the party to information that would inform them that, under British Columbia law, such a fee may not be charged, and explains to the party how to claim a refund by writing to Consumer Protection BC and filing a complaint.

If the nature of the complaint is such that a legal claim needs to be initiated, then the Solution Explorer provides online guides on how to file a claim. A case is initiated by completing the appropriate form from the “Make a Claim with the CRT” webpage. The CRT is designed to try to assist the parties to craft their own solution. If a solution cannot be reached by negotiation between the parties or facilitated by a CRT case manager, then a hearing can be held by the CRT. This hearing can take place by email, by electronic submissions, paper submissions or, in rare occasions, via an oral hearing by telephone, videoconference or in person. Evidence can be submitted, including expert evidence.

The CRT is certainly applying a different mindset to the process of civil dispute resolution––largely without lawyers. In proceedings before the CRT, the ability to be represented by a lawyer is curtailed.

THE ROLE OF ATTORNEYS

As of June 2020 [ED: the original article has earlier stats, this version has been updated], the CRT has handled 17,238 disputes—14,362 small claims and 2,701 strata property disputes. The system has closed 15,644 disputes, including 13,187 small claims disputes, and 2,333 strata disputes were closed and of those, 907 strata property disputes were determined by adjudication. There were much smaller numbers of motor vehicle disputes and society and cooperative association disputes, and 78 percent of participants would recommend the CRT to others, according to the Civil Resolution Tribunal’s April 2020 Participant Satisfaction Survey.

Albert Einstein once said: “A new type of thinking is essential if mankind is to survive and move to higher levels.” The CRT is certainly applying a different mindset to the process of civil dispute resolution—largely without lawyers. In proceedings before the CRT, the ability to be represented by a lawyer is curtailed.

In motor vehicle injury disputes, litigants can automatically be represented by a lawyer. However, in most other cases, parties need to ask the CRT for permission if they want to be represented by a lawyer. And, in all cases, if a party wants someone other than a lawyer to represent them, they must receive permission. There are exceptions for minors and persons with impaired mental capacity. At any time during the tribunal process, a case manager or tribunal member can restrict the participation of a person providing representation or assistance in the tribunal process.

Traditionally, lawyers have opposed changes to the adversarial method of dispute resolution. Lawyers can continue to oppose meaningful changes to the legal and justice system that would result in greater access to justice; however, they do so at their peril. They may just wake up one day and find that change happened, and that change did not include them. The example of the CRT is just one of those changes that is likely to expand and fundamentally change the process of dispute resolution. LP

(This article appeared originally in the Big Ideas Issue, Law Practice Magazine, July 1, 2020 (https://www.americanbar.org/groups/law_practice/publications/law_practice_magazine/2020/ja2020/ja20bilinsky/).

Four Tip Friday

scsmallfirm — Fri, 10 Jul 2020 18:35:00 GMT

Hi everyone!

1. If you need an easy way to keep up with legal technology, subscribe to John Simek’s email newsletter, Your IT Consultant. (You can also subscribe via your favorite RSS reader, like Feedly.) Here is a link: https://youritconsultant.senseient.com/ Recent newsletters have addressed password managers and home routers. And, of course, unless you are in Spaceballs, don’t use 123456 as a password. https://www.youtube.com/watch?v=a6iW-8xPw3k

2. If you are looking for serviceable to decent noise cancelling headphones, check out either the ones by TaoTronics here https://amzn.to/2BSW4OA or the ones from Anker https://amzn.to/38GVoaZ I don’t use the noise cancelling that much, because it does not cancel out my bad dog’s barking, but the sound quality will satisfy the non-audiophile and battery life has come a long way. Plus, as someone on the Clockwise podcast pointed out, if you are wearing earbuds people will bother you, but if you are wearing a big set of cans, they won’t.

3. Some of you are saying, OMG I simply cannot put cheap headphones on my delicate ears. In that case, if money is no object, skip to 4, but if it is, check out https://camelcamelcamel.com/ It will help you figure out when the best time to buy something is.

4. If you are wondering how to get short links, check out https://bitly.com/ It will make your life (and blog posts) easier!

We are one day closer to things settling down. That counts for something, right?

Let’s be careful out there!

Michael J. Polk, Esquire
Chair
SC Bar Technology Committee
Belser & Belser, PA
Columbia, South Carolina

Fastcase as a Supplement to Westlaw

scsmallfirm — Wed, 01 Jul 2020 15:25:00 GMT

In these strange new times, lawyers in firms of all sizes are seeking ways to reduce costs while remaining effective advocates. While many small firm lawyers in South Carolina rely heavily on Fastcase free legal research through the South Carolina Bar, larger firms with Westlaw subscriptions can also benefit. As a librarian, I am privileged to use Fastcase, Westlaw, Lexis, Casetext, ROSS Intelligence, Bloomberg Law, and other research platforms. Part of my job is to assess strengths and weaknesses of each platform, so I can better help anyone who contacts the law library with their research.

Since Fastcase is provided free to all South Carolina Bar members, there are some good reasons to use it even if you are satisfied with Westlaw. Here are five examples:

No-Stone-Unturned Searches. Most lawyers who are unsure about a research result will get a second opinion from a colleague or a librarian. After all, two heads are better than one.

By the same token, two platforms are better than one. We can’t see the proprietary algorithms each platform uses to interpret search terms and generate a list of relevant results. But we know these algorithms differ.

When you need to doublecheck Westlaw search results, try running the same search on Fastcase to see if anything different pops up. Fastcase also lets you customize your Relevance Algorithm to ensure the results you’re seeking rise to the top.

Cost-Effectiveness. Lawyers must balance the requirement to perform competent research against the pressure to minimize both the cost of the resource and the cost of their time. Current trends favor flat-rate Westlaw contracts and treating research costs as overhead rather than passing them on to clients. Still, depending on how a firm allocates research costs internally, cost concerns continue to incentivize self-imposed limitations on Westlaw usage.

Searching. If your preferred Westlaw search strategies are hemmed-in by cost concerns, unlimited Fastcase use can be a boon. For example, you can run as many searches as you want in Fastcase—wide-net searches, highly specific searches, searches within searches—it doesn’t matter. Searches are free, which removes the worry about costs and saves time by letting you focus on resolving the issue you’re researching. After trying out as many search queries as you want in Fastcase, you can always doublecheck a search in Westlaw.

Analyzing Results. Westlaw lets you read a case excerpt before you decide whether to click the link to read the full text of that case and possibly incur a charge. Each case has to be in a different tab or window than your results list, complicating your workflow and leading to duplicate charges if you click on the same case twice.

By contrast, Fastcase lets you freely view the full text of as many cases as you want, not just excerpts, and you can open each case side-by-side with your search results—in the same tab. Especially for a lengthy list of possibly-helpful results, the speed of the back-and-forth between your results list and the full text of the cases can save significant research time.

Cloud Linking. If you’re citing case law for someone who doesn’t have Westlaw, try Fastcase’s cloud linking feature. Drag and drop a blog post or white paper written for a general audience into Fastcase’s cloud linking drop box, and links to the full text of the cited cases will be added automatically. Anyone can click the links and read the cases for free online.

Suppose your co-counsel uses Lexis or Casemaker, or that users of your firm’s brief bank want to limit their Westlaw usage. Cloud-link your shared research using Fastcase. Then, links to the cited cases will work for all lawyers with whom you share research, without their needing to log in anywhere or incur charges.

Additional Jurisdictions. It can make financial sense to limit a Westlaw contract to South Carolina law or Fourth Circuit law if that’s where your practice is focused. However, sometimes persuasive authority from other jurisdictions is needed.

Free resources (like Google Scholar, Findlaw, or Justia) will usually retrieve the full text of a case. However, those resources don’t let you check whether the case is good law, and they don’t make it easy to find other relevant cases from that jurisdiction.

If you pull up a case in Fastcase instead, Authority Check will alert you to cases that cite it, positively or negatively. If you run a search, the Interactive Timeline points out additional relevant and frequently cited cases from that jurisdiction. You can retrieve those other cases on Fastcase for free, while avoiding charges for going outside your Westlaw contract.

Beyond the Basics. Upgrades from standard Westlaw packages cost extra, and the same is true of add-ons from Fastcase and its partners. Particularly for lawyers who rarely need premium research products, it is worth evaluating Fastcase partner options to assess resource quality and potential savings for occasional use of secondary sources, public records searching, case tracking alerts, and more.

My hope is that SC Bar members—whether or not they use Westlaw—will get their dues’ worth from Fastcase. For more help doing so, the Fastcase support number is 866-773-2782, option 2, available Monday-Friday 8 am to 9 pm.

By the way, the University of South Carolina Law Library can also act as a supplement to Westlaw. For example, we regularly fill email requests for PDFs of law journal articles that do not appear on Westlaw. A lawyer must provide the citation and agree to a $5 handling fee. See https://guides.law.sc.edu/remoteservicesbenchbar.

By: Eve Ross
Reference Librarian
University of South Carolina School of Law Library
SC Bar Technology Committee

Lessons in “Work from Home”

cgtroutman — Fri, 01 May 2020 08:34:27 GMT

As I write this column, many lawyers have left their offices to work from home (WFH) and more may follow. If, like me, your experience with working from home was using your work laptop or home PC to check emails and do a little work, the transition was a bit bumpy. As is true for many things in life, with office technology we often don’t appreciate what we have until we no longer have it.

In March 2020, Bar members began a major exodus from the law office. If you already used a laptop as your primary work computer, you were one step ahead of the game. I used a desktop PC at the office, so I ordered a 14” Lenovo Thinkpad X1 Carbon from Lenovo (go to www.lenovo.com/statebar for the same price Lenovo employees get). It’s a thin, lightweight business laptop. My advice has always been to purchase business or professional grade laptops direct from the manufacturer. I was fortunate to order when I did. Lenovo has a shipping facility near Charlotte and I received the laptop the next day. Lenovo, Dell, and HP are reliable brands. (I am not anti-Mac – if that’s what you want, get one – but if you’ve always used PCs, maybe a pandemic isn’t the time to try something new.) With shortages on computers, one can’t be too choosy, but be aware of significant disadvantages when buying from a retailer versus a manufacturer, including changes in the warranty.

Don’t obsess over RAM, disk space and other specs (most business machines are more than adequate for most lawyers) but make sure it has Windows 10 Pro 64-bit. I recommend purchasing an on-site warranty for the first 2-3 years – someone will come to you if you have a problem instead of having to ship the computer off. Whether you get accident insurance is your call.

Many lawyers now use multiple wide-screen monitors in the office, so it won’t take long before you feel frustrated doing everything on a laptop. I lasted one day before going to Office Depot to purchase a docking station. It was a J5Create Boomerang and it would not have been my first choice. Lesson learned: when Lenovo suggested adding a docking station to my online basket, I should have bought it instead of fretting about the extra money. Once I added the Boomerang to my laptop with the included micro USB cable, I was able to add peripherals from the office and home: an external monitor, keyboard, mouse, speakers and headset with mic. When I need to, I can connect a Fujitsu ScanSnap scanner or small HP printer.

Accessing your work computer or server remotely requires a VPN (virtual private network), remote control solutions, or Remote Desktop Protocol. You can find more information about these at www.scbar.org/pmap or look at reviews on PCmag.com. Remote control products include LogMeIn and Splashtop. I don’t recommend using Remote Desktop Protocol, which is disabled by default on Windows computers as it is vulnerable to breaches.

If you only need to access your files, not software programs, there are alternatives if you plan ahead. Before we decamped our office, the PMAP Assistant and I moved files we thought we would need to Microsoft SharePoint. SharePoint comes with Microsoft 365 Business. (In case you missed it, Microsoft 365 is how you get Word, Outlook, Excel and the rest. There are 3 different plans, but as of April 21 most lawyers can choose Microsoft 365 Business Standard.) Working from home, we could go to Office.com, login and access files in SharePoint much as we would on our office’s server. In SharePoint, we work on the same files without worrying about different versions. If the files had all been in OneDrive, this step might not have been necessary, but SharePoint makes it easy to share files and collaborate.

For phone calls, we signed up for free Google Voice numbers so we wouldn’t have to give out our personal numbers. Google Voice calls are forwarded to personal phones or you can make and receive calls from voice.google.com on your computer with a headset/mic or Bluetooth earbuds. It also works with texts – clients can text you and you’ll receive it in your Gmail. WhatsApp is another alternative for calls. These are temporary options during an emergency, not something I recommend lawyers using instead of regular phone service. Please conduct your own research before signing up with one. Lawyers with VOIP phone service at the office can take their physical IP phone home with them and receive their calls as they normally would.

If inner office emails are crowding your inbox, ask coworkers to use Microsoft Teams (included in 365) to send chat messages, share files and links, schedule meetings, and even video chat. Video calls on Teams tends to be clunky compared to Zoom, but it’s as easy as clicking on the phone icon in Chat to call a coworker’s computer. There are options for guest access for people outside your organization, but it needs to be configured properly, so at this time I don’t recommend it. Client portals, included in many practice management software products, remain a more secure means of collaborating and communicating with clients. For non-confidential collaboration with non-clients, try Slack https://slack.com/.

If there’s a “Tech Word of the Year” 2020’s might be “videoconferencing.” At this writing, Signal and WhatsApp are popular options to use for one on one calls, which are easier to secure. Videoconferencing with larger groups, such as mediations, require more sophisticated software, such as Zoom and GoToMeeting. Educate yourself on how to properly use all products (not just videoconferencing) for better security. There is no such thing as perfect security and privacy on the Internet.

***Due to the rapid rate of change, please research all products mentioned in this column thoroughly before using

By: Courtney Troutman, Director
Practice Management Assistance Program
South Carolina Bar

Technology Takeaways from the 2020 Bar Convention

scsmallfirm — Sun, 01 Mar 2020 14:18:32 GMT

In November, 2019, the South Carolina Supreme Court adopted amendments to Rule 1.0 (r), Rule 1.1 Comment 6, Rule 1.6 Comments 20 and 21, and new Rule 1.6(c) of the Rules of Professional Conduct. The amendments were modified versions of amendments made to the ABA Model Rules of Professional Conduct in 2012 meant to offer guidance to lawyers about technology. The Technology Committee sponsored a CLE at the Bar Convention in January, featuring national experts Sharon Nelson and John Simek who addressed best practices for lawyers to be ethically compliant and competent in the area of technology. They addressed three big areas: ethical competence in the digital area, disasters and data breaches, and the future of law practice. Here are some takeaways, but you can find this information and much more in the articles listed on their website https://senseient.com.

Most, if not all, law firms have experienced a technology security event – from malware infections to total breaches. In light of that, firms should conduct security assessments and have incident response plans. Many cybersecurity insurance policies are requiring these (the cost of cybersecurity insurance is reportedly rising). Firm training is also critical, since the majority of security issues rely on human error and gullibility. Firms should have a security policy for employees to follow, covering everything from backups, BYOD (bring your own device), acceptable use and more. Firms should also have an incident response plan to avoid running around like a chicken with … you know the rest. The plan should include contact information, immediate steps to take, and steps to resume operation. Most states have data breach notification laws, including South Carolina. Consult the law for your duties.

Ransomware attacks are evolving (think it’s some guy in Russia? These days it could be a bot or artificial intelligence). Ransoms being demanded are higher than most firms can pay. A new twist in ransomware: firms who ignore the ransom request because they have a good backup may be subject to having their data used or leaked to the dark web in retaliation for not paying the ransom. Some good news: success rates in thwarting ransomware are increasing if the FBI is notified within the first 24 hours. So, even if you have a backup, notify the authorities asap. Also good news: more banks are recognizing wire fraud attempts and stopping fraudulent transfers before they conclude.

Basic backup advice that applies to most law firm sizes: have a local (physical) backup and two cloud backups. Make sure your cloud provider allows you to control the encryption key. The speakers named Carbonite and Backblaze as good options. Make sure backups work by doing a test restore. One solo used a cloud backup and lost five years of law firm data because he’d never tried to verify if the data was restorable or not corrupted. Don’t take the word of the software that says “Backup successful!” – be certain. If you use a USB backup drive, disconnect it from the server once the backup is completed (more than one physical backup drive is recommended so you can swap them out). If you experience a ransomware attack and your backup is connected to your computer – well, there goes your backup.

Zombie data, also known as “dark data” is data you don’t realize you have. It can come up in data breaches or in cases during e-discovery. The speakers’ advice about old data: if you don’t need it, and are not legally required to preserve it, get rid of it! Don’t forget old email accounts – nearly everyone has old free email accounts they’ve ceased using. They’re ripe targets.

The speakers next turned to the Future of Law Practice. Consumers, accustomed to smart TV sets , doorbell security cameras, and Alexa, have rising expectations for lawyers. Consumers expect same day delivery of products, automated contract delivery, client portals and video chat. Trends that will grow include non-lawyer ownership of law firms, traditional legal work being done by non-lawyers and alternative legal services providers, and of course, Artificial Intelligence (AI). As an example of the rapid rate of change in AI, the speakers reported that the IBM Watson computer that defeated Ken Jennings at Jeopardy! in 2011 was the size of a master bedroom and weighed thousands of pounds. One year later, it was 18 x36 inches and weighed just 100 pounds.

Although the term AI is often incorrectly used to hype products and sound cool, in reality, AI is already in widespread use in the world’s largest law firms (but the speakers were quick to say that it is also being used by solos). Lawyers use AI for contract review, due diligence, e-discovery, legal research, predictive analytics, and more. AI represents a direct threat to some legal job sectors, including lawyers performing document review, paralegals, and even first year associates. JPMorgan Chase uses COIN (Contract Intelligence) which in seconds can do the work formerly requiring 360,000 hours a year by lawyers and loan officers.

Bar members can read many of Nelson and Simek’s articles on technology, security, ethics, and law practice on their website www.senseient.com, watch Sensei YouTube videos, or listen to Digital Detectives or The Digital Edge podcasts.

The Bar also has many resources to help lawyers with technology questions, from a lending library of ABA technology books to online resources at www.scbar.org/pmap and the Technology Committee’s page www.scbar.org/tech.

By: Courtney Troutman, Director
South Carolina Bar Practice Management Assistance Program

Mike Polk, Technology Committee Chair, South Carolina Bar
Belser & Belser, PA
Columbia, South Carolina

Toxic Workplaces: Avoiding Burnout while Staying Positive

David Bilinsky — Mon, 10 Feb 2020 14:00:53 GMT

♫ And if it’s bad
Don’t let it get you down, you can take it..
Hold your head up, oh hold your head high… ♫

Music and Lyrics by Junod Etienne and Sean Price, recorded by Steppenwolf.

(Image by Gerd Altmann from Pixabay).

When one thinks of toxic environments, one doesn’t tend to think of law offices as falling into that category. Yet I get calls from partners, associates and staff alike who are having to cope with working in such situations. In some offices matters are dire; the stress of working in these environments are taking their toll on the person’s health and well-being, on their careers and certainly on their home life as well as they can’t help but carry the effects home. After a time some of these people reach the breaking point and leave. Others are not so fortunate and are looking for tips on how to cope with being in such a situation.

The first thing to remember if you are caught in such an office is that you cannot control other people’s behaviour; you can only control how you respond. Passive-aggressiveness, destructive and negative comments, conniving politics, terrible leadership, partners that are insensitive to personal boundaries or worse are not things that are a reflection of who you are; you are simply caught in the toxic vortex. So here is a collection of tips for coping in a toxic environment:

You need to stay positive and upbeat. The person you are most able to influence is yourself so don’t allow the toxicity to drag you down.
Learn from the experience. Every bad situation allows you to grow as an individual and take home lessons – even if those are about things that you would never repeat. Learn how to apply The Golden Rule – ie how to treat others as you yourself would wish to be treated – as it is a powerful guide to help you grow when you are in such a situation.
Do the best that you can do. You want to preserve your integrity and your good name. It is no surprise that word gets around in the legal community and being able to cope in a bad environment only enhances your reputation, your work ethic and your character.
Create a ‘thank you’ file. While it may perhaps be the thinnest file in the office, a collection of letters and cards that endorse the value of your work could be the most valuable file in the office. It will grow over time and leafing through the physical embodiment of good wishes and thanks is a personal validation of your own self-worth and assistance to others.
Get a supportive network outside of the office. Having someone to talk to about the situation certainly helps and their advice and support can get you through some dark days.

Continue to search for a better workplace while keeping your shoulders squared and your spirit up. Keep looking for a more positive situation. Remember that no matter what, continue to hold your head high.

What online resources are available if you find yourself in a toxic environment? Here are a selection:

Workplace Bullying Institute “WBI is the first and only U.S. organization dedicated to the eradication of workplace bullying that combines help for individuals, research, books, public education, training for professionals-unions-employers, legislative advocacy, and consulting solutions for organizations.” It was founded by Drs. Gary & Ruth Namie. They state:

“Workplace Bullying is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms:

Verbal abuse
Offensive conduct/behaviors (including nonverbal) which are threatening, humiliating, or intimidating…”

This site has wonderful resources for people caught in these situations including an ‘action plan’ which includes the great piece of advice: “Have your escape route planned…

The World of Psychology Web site in the article “When Your Workplace is Toxic” has this bit of advice regarding having a personal renewal program in place. They state:

“We must have a self-care protocol in place that we can employ as a daily guide, while being alert to rationalizations and excuses for not doing it. Not to have such a personal renewal program may court disaster for both our personal and professional lives. It is also, at its core, an act of profound disrespect for the gift of life we have been give.”

The Future of CIO website: in an article entitled “Five Characteristics of a Toxic Workplace” states:

“One of the most toxic characteristics of workplace, is that of management making decisions without the consideration of the people.”

It goes on and states:

“A lack of real support for employees can be an issue: Who do you go to if there’s a problem with your boss or someone in a senior role? Often, there’s an ‘elephant in the room’ that no-one wants to address until the problem begins to spiral. Unhelpful behavior that leads to general gossip, can very quickly create a toxic environment.”

If you are a leader in a firm that is starting to show signs of toxicity, this website has another good article that speaks about a 4 step methodology for analyzing, assessing, and redesigning the culture of an organization in a consistent manner: Corporate Culture Re-inventing: Is Hybrid Model the Best?

Lastly, when it comes time to craft your exit strategy from the toxic workplace, Forbes Magazine has an article online entitled “Five Critical Steps to Finding a Job Fast!” It lists such things to consider as fine tuning your LinkedIn profile as well as checking any publicly available information about yourself that may turn up on a Google search.

(Originally published by the Canadian Bar Association in their publication Bartalk in the columns: PracticeTalk and Dave’s Tech Tips in February 2014.)

Four Tips for Better Password Security

scsmallfirm — Mon, 06 Jan 2020 14:13:00 GMT

Do passwords still matter? Isn’t it true that if an attacker really wants to, they can crack any password? Many lawyers have been asking this in recent years, frustrated by ever-changing advice on what constitutes a “safe” password. Yes, passwords do matter. Now is not the time to throw in the towel and become “low hanging fruit” for hackers.

Lawyers should take reasonable steps to create and use secure passwords to protect client confidentiality and safekeep client property. (Rule 1.6 Confidentiality of Information, Rule 1.15 Safekeeping Property, SCRPC.) In 2012, ABA Model Rule of Professional Conduct Rule 1.1, Comment 8 was amended to advise that lawyers also maintain competence by keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Since, then at least 37 states have followed suit with similar amendments.

It’s true that there are such things as “bad” passwords. There are numerous lists of most hacked or “worst” passwords on the internet, including one by the UK National Cyber Security Centre https://tinyurl.com/rrgycfk. “123456” consistently tops all lists as the most commonly used password, followed closely by “qwerty” and “password.”

Many online accounts force certain requirements on users – a minimum number of characters, an uppercase, a lowercase, a symbol, a number. This requirement can offer limited protection if you use a password like “trustno1” or “v3r!Fy.” Password crackers know to look for common substitutions for letters.

Hackers use data from frequent corporate and website data breaches to perform “credential stuffing” – where hackers use stolen username and password credentials and try to login to other websites with those same credentials. Often, they are successful.

Keeping in mind that what constitutes a strong password changes without warning and can even vary depending on the situation, here are a few tips:

Use Passphrases as Passwords – We listed some examples of problematic passwords above. A better password solution involves entropy, which is a lack of order or predictability, using passphrases – not a recognizable quote, but a string of words or text you can remember. Gary likes the “Diceware” method, which uses dice to come up with passphrases. A person rolls a set of five dice, each of which produces a random number between 1 and 6, and then matches the dice roll results with a list of predetermined words. The method is described in this Medium.com post: https://tinyurl.com/w4n9y7a. Courtney prefers to make up her own unique passphrases.

Never Reuse Passwords – In a February, 2019, Google/Harris poll of three thousand adults, sixty-five percent of the respondents reuse a password for one or all of their online accounts. As noted earlier in this article, hackers use information from breached web sites to perform “credential stuffing” to access accounts on other online web sites. You should never reuse a password for any online site. In late 2019, Google announced “Password Checkup,” a new Chrome extension that warns you if the username and password you’re using were stolen in any data breaches and then prompts you to change them if they were.

Ideally Use a Password Manager – The best solution as far as organizing your password security is to use a password manager. Password managers are software applications that allow users to generate, store, and retrieve secure passwords for various online sites. Most password managers allow the generation of passphrases as well. Many password managers have smartphone apps and browser plug-ins so that you can easily retrieve a password. You only need to remember your master password to access the password manager. PCMag.com does an annual roundup of password managers. Most have a very reasonable annual fee. There are free versions available, but most limit the number of passwords you can save, and the terms and conditions can vary. As a general rule, Courtney recommends that lawyers not use free software or apps, but buy the pay version. Gary likes 1Password https://1password.com, and Courtney uses LastPass https://www.lastpass.com.

Use Two–Factor Authentication Whenever Possible – Two-factor authentication is the means of using two different types of information to login to an online account, such as a password, a PIN sent by text message or authenticator app, or a fingerprint/biometric. Most people are already familiar with two-factor authentication with online banking or cloud-based storage web sites. Enable two-factor authentication whenever possible with your online and cloud-based providers. Visit Two Factor Auth https://twofactorauth.org for a list of websites that do and do not support two-factor authentication.

Ronald Rotunda, in his February 2018 article for Justia “Lawyers, Passwords, and the Obligation to Keep Clients’ Secrets” https://tinyurl.com/vz9mess, summed up password security: “When we take these precautions, the modern-day equivalent of a deadbolt, we will know what to say when the client asks, “What are you doing to keep my information secret?””

By: Gary Moore
Assistant Dean for Academic Technology
University of South Carolina School of Law
SC Bar Technology Committee

Courtney Troutman, Director
SC Bar Practice Management Assistance Program
Liaison to the SC Bar Technology Committee.

Final Notice - New Domain for Jim Calloway's Law Practice Tips Blog

Jim Calloway — Tue, 10 Dec 2019 20:36:49 GMT

Please be advised that Jim Calloway's Law Practice Tips Blog has moved to https://www.lawpracticetipsblog.com/.

If you received this notification from my Typepad blog account or are on the page https://jimcalloway.typepad.com/ then you need to visit the new link noted above to subscribe at the new address. No more posts or notices will be on this site.

Thanks to TypePad for many years of great service. New things are being posted on my new LexBlog site. All archives are there as well.

Provincial Court of BC’s Twitter Town Hall

David Bilinsky — Tue, 26 Nov 2019 15:14:59 GMT

Progress by Nick Youngson CC BY-SA 3.0 ImageCreator

♫ If not today
Maybe tomorrow
If not tomorrow
Maybe in a week
No matter how far I push it
It needs to find me
Progress ♫

Lyrics and Music by Booker T. Jones, James Edward JR Olliges, recorded by Booker T. Jones.

Sometimes change happens so slowly, you don’t notice it. Sometimes change happens so quickly, it doesn’t notice you (Ashley Brilliant)

Oct. 28, 2019 was a day in Canada unlike most others. You may not have noticed anything different, even if you were in the legal community. On that day, Provincial Court of BC’s Chief Judge Melissa Gillespie hosted the province’s Chief Justice, Robert Bauman, and Jennifer Muller, a former self-represented litigant (SRL), in a live Twitter Town Hall. For two hours, the group engaged in twitter discussions with their Twitter audience from not only in BC, but across Canada and the world.

A good review of the proceedings, parties participating and topics discussed can be found here: https://www.provincialcourt.bc.ca/enews/enews-19-11-2019.

Since the proceedings have been covered in depth in the noted article, I wanted to discuss what I find momentous about this event and possibly, comment on its future implications.

Without deviation from the norm, progress is not possible (Frank Zappa)

There is no denying that we have an access to justice issue in the courts and society, not only in BC or Canada, but world-wide. Different approaches are being tried in many locations with the best of intentions, aiming to improve access to justice. However, if these approaches fall into the category of ‘more of the same’, then one is left with the distinct impression that these efforts are little more than flogging a dead horse. Or as Albert Einstein famously said: “Problems cannot be solved with the same mind set that created them.”

One thing that happens when you reach out to the world. You receive information about approaches that have been developed elsewhere and then enter into a meaningful discussion as to their applicability here. For example, there was the tweet:

“Domestic Violence courts are really amazing! Toronto’s integrated domestic violence court pilot (criminal and family under one judge) was a huge success. When will we see something like it in BC?”

Ron Usher noted in another tweet:

“The use of technology in B.C. Securities Commission hearings is impressive, well worth taking the time to sit in on a hearing.”

These tweets and others like them lubricate the pump of thinking outside of the box. Studies and research articles were mentioned and noted and helped raise the level of awareness of the current thinking of the subject of access to justice world wide.

In fact this Town Hall not only generated thought inside of the Province, it reached far beyond. Chief Justice Michael Wood in Nova Scotia had a question that was asked via video clip embedded in a Tweet. His question (here I have paraphrased) was, given BC’s huge geographic distances, whether BC courts have found ways to make meaningful use of technologies to assist in outreach out to remote communities without losing the personal touch that they have found in Nova Scotia to be so important.

The Justice Education Society replied that they were working to assist judges in BC reaching out through the use of live streaming technology.

Change always means no longer doing things in the ways that you have always done them. Or to quote Christopher Robin, I always get to where I am going by walking away from where I have been.

Think, then Think Differently

In the Town Hall Discussion, there was inherently a recognition that the solutions lay in ideas that are outside of the traditional ‘way of business”.

For example, this tweet from Jennifer Muller:

“^JM: #A2JChatBC For there to be real change in the ways users of the system can access justice, justice stakeholders need to decide to act on A2J and do it differently – collaboratively and experimentally – putting users at the centre.”

The problem, in part, is due to the fact that the justice system has a long history and tradition. Change, in other words, comes slowly. Consider that the Air India Trial started in April 2003 in Courtroom 20 in the Vancouver Law Courts. That courtroom, along with being a high-security courtroom, facilitated a long high-tech criminal trial using an array of technologies. Yet in the 16 years since, there have only been a handful of cases using similar technologies, despite all the evidence that these technologies not only sped up the trial but facilitated many aspects of the work of the lawyers, of the judge and of court administration.

When it comes to technology, one could be faulted for saying that the justice system does not seem to turn to technology for solutions.

Accordingly it is refreshing then, to see Chief Judge Melissa Gillespie and Chief Justice Robert Bauman turning to Twitter to conduct their Town Hall with the world.

Jennifer Muller stated:

“We need to do things differently and try things that haven’t been tried. Collaborative approaches vs. adversarial should be the default, let’s start with small things: improve court scheduling with tech to save users time and money.”

Change, like justice, must be seen and not just heard …aka…don’t just talk the talk, walk the walk.

Technology is only a tool. Yet it is a very powerful and societal changing tool. The application of technology has been responsible for bringing into being the next phase of human progress, namely the Information Age. Yet the changes wrought by information technology in the legal sphere in general and the justice system in particular, have been relatively minor compared to the disruption that has occurred in other professions and industries. Judges, court administrators, lawyers and of course, the public have called up all participants to address the access to justice problem. Questions are many; answers are few. The justice system must not only be seen to be actively calling for and supportive of solutions to address access to justice; it must also be seen to moving towards changing itself to be part of any real efforts to seek change. In this regard it must demonstrate that it is open to technological change or be subject to criticism that it itself is part of the problem.

Certainly the courtroom of today must be prepared to handle the move to paperless trials and video evidence. Court processes can benefit from full or partial automation in much the same way that law firms have done. Conferences that focus on emerging systems aiding court processes inform judges and court administration worldwide and help bring about knowledge, alignment of systems and with it, change. Furthermore the movement world-wide to online dispute resolution (such as our Civil Resolution Tribunal in BC) completely depends on the use of internet and communication technologies. Moreover, judges, as the pinnacle of the system, must not only support the call for change, they must be seen to be active change agents within it.

The Twitter Town Hall could not have taken place without The Internet and enabling technologies. A different social media platform could have been chosen with differing results. Twitter allowed a diverse audience from all points on the compass to join in, see the questions, read the answers and in turn, ask and have their questions answered. Ask yourself where, on or off the Internet, is it possible to engage in a discussion such as the one that occurred on Twitter, with judges and others? Possibly in a conference where judges are invited to speak and take questions, but those events would be limited to those who could attend in the same physical location at the same time. In the Twitter Town Hall, the conversations were asymmetric, meaning that one speaker did not have to wait in line at a microphone to ask his/her question one after another. Furthermore the record of the tweets, asked and answered, is fully available now to anyone by going to Twitter and searching under the hashtag #a2JChatBC. The record clearly shows the level of engagement that took place.

No machine is above the law

How do you judge (pardon the pun) that the Twitter Town Hall was a success? What are the criteria?

For one, it is rare for any member of the legal profession, much less the public, to be able to ask questions of a judge. Even in courtroom engagements, it is the judge that is able to ask questions of counsel and at times, witnesses. No dialogue such as an open discussion takes place in court and rarely outside of it. Public social events involving judges are, not surprisingly, limited. The sheer ability to “talk” to a judge on Twitter, in public, and ask questions and receive answers, in particular, is practically unprecedented.

This engagement was recognized in this tweet by the Chief Justice of BC:

“^CJBC Communication between the judiciary and the public it serves is critical to maintaining trust and confidence in our judicial institutions. And importantly it is the judiciary’s duty to pursue these opportunities. #A2JChatBC”

In an article entitled “The Qualities of a Good Judge” by Judge Steven L. Platt, who presided over one of Maryland’s trial courts for nearly three decades (Orphan’s Court, 1978-1986; District Court, 1986-1990; Circuit Court, 1990-2007), it is set forth:

“Chief Judge Robert M. Bell [of the Maryland Court of Appeals] has emphasized the need for judges to communicate not just in the courtroom but also in the communities in which they serve and to the other branches of government.”

While judges giving talks or speeches in communities are vital, this method of communication is rather one-sided. The ability to ask questions by the public is usually limited and often there is no opportunity for a discussion to take place. The Twitter Town Hall was a major step forward in allowing a multi-party, diverse and wide-ranging engagement to take place.

If you think you are too small to be effective, you have never been in the dark with a mosquito (Betty Reese).

There were many suggestions and approaches outlined to address access to justice. Benchers, The Law Society, PovNet, BC’s Office of the Ombudsman, Legal Aid BC, the CBABC, the Courthouse Library, TLABC, Mediate BC, the BC Utilities Commission, the BC Law Institute, the BC Family Innovations Lab, Access to Justice BC, The Society of Notaries, lawyers, notaries, and many others joined in the wide-ranging discussions.

Like a pebble dropped in a still pool of water, the ripples of the Twitter Town Hall have spread far and wide. Initiatives such as these help push the access to justice boulder a little higher up the hill.

Indeed, inherent in the discussions was the recognition that Access to Justice solutions may actually, in part, lie outside of the courtroom.

MediateBC posted this tweet:

“Shameless plug: Mediation and other collaborative dispute resolution processes are critical to #A2J (i.e. more affordable, removes strain on the courts, etc.). There could probably be a bit more in the media about that. #A2JChatBC ^WB”

Progress lies not in enhancing what is, but in advancing toward what will be (Khalil Gibran).

The Hardest thing to open is a closed mind (Graham Andrews)

What of the people who weren’t there, who didn’t participate, who are part of the justice system but turn a blind eye to change and in particular, enhancing access to justice? The ones who, due to indifference, adherence to the past or dislike of change, seek to stand in the road and obstruct progress.

Margaret Mead stated that:

“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”

or reaching back in time:

Never discourage anyone who continually makes progress, no matter how slow (Plato).

If not today, maybe tomorrow. If not tomorrow, maybe in a week. No matter how far we push it, it needs to find us. Progress.

(concurrently published in slaw.ca)

Time for Change in Legal Regulation

David Bilinsky — Fri, 04 Oct 2019 19:14:53 GMT

♫ It’s time we stop, hey,
what’s that sound
Everybody look what’s going down… ♫
– Music and lyrics by Stephen Stills,
recorded by Buffalo Springfield.

There is something happening here. Traditional lawyer regulation “has not proven to foster innovation” and this in turn is seen as holding back innovations that could increase access to justice. For example, in 2018, The Board of Trustees of the State Bar of California (“Board”) received a Legal Market Landscape Report (bit.ly/bt1019p26-3) suggesting that “some of the rules and laws governing the legal profession may be hindering innovations that could expand the availability of legal services.” As a result, the Board appointed a Task Force on Access Through Innovation of Legal Services (“ATILS”) and assigned it to identify possible regulatory changes to remove barriers to innovation in the delivery of legal services by lawyers and others. ATILS was charged with balancing dual goals: consumer protection and increased access to legal services. They came up with 16 concept options for regulatory changes.

The report (bit.ly/bt1019p26-1) found that: “The slow evolution of the rules governing lawyers, including, but not limited to, lawyer advertising and solicitation, fee sharing/fee splitting, and UPL, are examples of regulatory reforms failing to keep pace with changes in the legal services market, including changes in the market driven by evolving innovation and technology and related consumer behaviour and preferences.”

But California is not alone.

Utah and Arizona are also looking at the issue of the regulation of lawyers and its effect on access to justice, in particular the issue of Alternative Business Structures (“ABSs”):

The Utah group – which was heavily influenced by the experience in England and Wales – said ABSs, backed by a new regulatory regime, would help foster innovation and promote other market forces “so as to increase access to and affordability of legal services.” (bit.ly/bt1019p26-2)

As of August 28, 2019, the final report of the Arizona task force has yet to be published, but it was reported that minutes of its meetings confirm that it supported the introduction of ABSs along with entity regulation.

Of course ABSs have been allowed in the UK since 2013.

Underlying these reports is the message that technology has been the biggest factor of change and innovation over the last while, yet lawyers are failing to realize the benefits of change and innovation that technology offers. Access to justice suffers as a result.

The Utah Bar, for their part, issued the report “Narrowing the Access-to-Justice Gap by Reimagining Regulation.” (bit.ly/bt1019p26-4)

Utah stated that eliminating or substantially relaxing the rule allowing lawyers and non-lawyers to share fees was “key to allowing lawyers to fully and comfortably participate in the technological revolution.” (bit.ly/bt1019p26-2)

Utah felt that they should encourage “non-traditional sources of legal services, including non-lawyers and technology companies, and allow them to test innovative legal service models and delivery systems through the use of a “regulatory sandbox” approach, which permits innovation to happen in designated areas while addressing risk and generating data to inform the regulatory process.” (bit.ly/bt1019p26-2)

We need to start the process of regulatory reforms to allow these changes to take place here; for without them, as we all know, you step out of line, the man come and take you away.

What are some of the key recommendations and findings of the California and Utah reports?

California: Legal Market Landscape Report | Utah: Narrowing the Access-to-Justice Gap by Reimagining Regulation Report

California

Legal Market Landscape Report (bit.ly/bt1019p27-1)

Narrowing restrictions on the unauthorized practice of law (“UPL”) to allow persons or businesses other than a lawyer or law firm to render legal services, provided they meet appropriate eligibility standards and comply with regulatory requirements;
Permitting a nonlawyer to own or have a financial interest in a law practice; and
Permitting lawyers to share fees with nonlawyers under certain circumstances and amending other attorney rules regarding advertising, solicitation, and the duty to competently provide legal services.

The potential benefits of these recommendations were listed as follows:

Improving the ability of new providers to enter the legal services market;
Creating incentives for innovators to collaborate with lawyers to develop technology-driven solutions;
Expanding options for entities and individuals other than lawyers to support and participate in these developments through business ownership and capital investment.
Limiting the new UPL exceptions to only those providers who meet eligibility qualifications and become regulated;
Requiring the establishment of ethical standards comparable to those imposed on lawyers and law firms;
Conditioning the new system on the establishment of equivalent protections afforded by the attorney-client privilege and a lawyer’s ethical duty of confidentiality; and
Including in the revised fee-splitting rule a provision prohibiting interference with a lawyer’s independent professional judgment.

Utah

Narrowing the Access-to-Justice Gap by Reimagining Regulation Report (bit.ly/bt1019p27-2)

“Certain rules of professional conduct have been viewed by lawyers as impeding their ability to increase business and survive in the online world. Restrictions on lawyer advertising, fee sharing, and ownership of and investment in law firms by non-lawyers are concepts that need serious amendment if we are to improve competition and successfully close the access-to-justice gap.”

In a July 11 meeting, the Arizona task force voted “to amend the state’s ethical rules to allow lawyers and non-lawyers to form new legal services businesses known as ‘alternative business structures.’” They stated that they believed the Arizona approach had much to offer. Indeed, they viewed the elimination or substantial relaxation of Rule 5.4 as key to allowing lawyers to fully and comfortably participate in the technological revolution. They felt without such a change, lawyers will be at risk of not being able to engage with entrepreneurs across a wide swath of platforms.

(Published by the Canadian Bar Association in their publication Bartalk in the columns: PracticeTalk and Dave’s Tech Tips in October 2019.)

Jim Calloway's Law Practice Tips is Back!!

Jim Calloway — Tue, 16 Jul 2019 16:36:38 GMT

Yes, Jim Calloway's Law Practice Tips is Back!! (Almost) After my blog's launch in January, 2005, I regularly posted law practice tips, my observations on law practice technology and management, links to interesting articles and more. I had over thirteen years of regular postings. But in the summer of 2018, I found myself in a triage situation. Both of my staff resigned for unrelated reasons within a few weeks of each other and I had just taken on primary responsibility for one of the most important projects of my career, organizing and managing the 2018 Oklahoma Access to Justice Summit. So something had to give and blogging had to be it. I continued sharing information through my Twitter account, @JimCalloway. I resolved to get back to blogging within a year and am just meeting that goal.

I have a top-notch team working with me now and in a few days there will be a more formal announcement about my great opportunity with a new blogging platform. We have plans for new types of features soon. But I wanted to give advance notice to subscribers that you need to take some action if you receive these blog posts through email or RSS.

The "old" blog address https://jimcalloway.typepad.com/ will be closed in early 2020.

Please visit the new blog address https://www.lawpracticetipsblog.com/ to subscribe to receive the posts via email or RSS feed. (The feed logo is at the top right hand side of the blog.)

Please do this soon as new posts are coming this week.

All of the content had been moved to the new platform and I have updated 2018 and 2017 posts, while removing some out-of-date entries. You may find some bad links on 2016 and prior content because both the OBA and ABA websites migrated to new platforms and broke many prior links. We are working on updating that.

Recognizing Different Strengths

David Bilinsky — Mon, 24 Jun 2019 13:00:59 GMT

♫ You raise me up, so I can stand on mountains
You raise me up to walk on stormy seas
I am strong when I am on your shoulders
You raise me up to more than I can be…♫

Music and Lyrics by B. Graham, R. Lovland, recorded by Martin Hurkens.

What does it take to practice law successfully? That list of abilities would be as diverse as the spectrum of lawyers out in practice today. Many of us would wish for a photographic memory combined with an intellect that allows that large amount of data to be assimilated and processed. That is exactly what Haley Moss, a lawyer in Florida, does. Joseph Zumpano, the co-founder of the law firm Zumpano Patricios, that employs Haley Moss, said he believes Moss is the first “openly autistic” lawyer to be admitted to the Florida Bar. Moss gives his business an edge in complex areas of law, Zumpano says, because of her “extraordinary” capacity for analysis and information processing .

Of course, not every person with autism possesses a photographic memory or has a capacity for deep analysis. People with autism have a range of abilities and challenges. Employers such as SAP, JPMorgan Chase, EY, Microsoft and others recognize this diversity and are part of the Autism at Work program, which seeks to take this range of abilities by employing over 160 colleagues in 13 countries.(https://www.sap.com/corporate/en/company/diversity/differently-abled.html)

According to StatsCan, 22% of Canadians have at least one disability, which represents 6.2 million people (2017). That is a huge pool of people that could play a role for many employers, law firms included, from being lawyers to acting in other careers.

There are more attorneys with autism than people realize, according to Shain Neumeier, an autistic lawyer from Massachusetts as reported in the ABA Journal.

The ABA Journal continues: “I think people are becoming more willing to be out of the closet because some of the stigma is gone. It’s not just a bunch of people who are sitting in corners banging their heads; we are fully functioning,” says Michael Gilberg, a special education and disability rights attorney in New York, who was diagnosed with Asperger’s syndrome when he was 18. He graduated from Elisabeth Haub School of Law at Pace University in 2007 and is admitted to practice in New York and Connecticut.

The goal would be for all individuals to be recognized for their strengths and abilities that they bring to a workplace, not just for how they are challenged.

“I want to see us being meaningfully included and have opportunities that are aligned with our skills,” Haley Moss stated, “as well as what we’re capable of.”

Employers, particularly law firms, who have a deep role to play by advocating for the rights of those with differing abilities and challenges, can also play a leading role in recognizing and employing individuals who have amazing attributes and strengths to build meaningful careers and help raise them up to be more than they could be…

The Journal of Vocational Rehabilitation in 2005 reported on a study that found that 92% of consumers felt more favourable toward those employers that hire individuals with disabilities. Furthermore, the study showed that people also had strong positive beliefs about the value and benefits of hiring people with disabilities, with 87% specifically agreeing that they would prefer to give their business to companies that hire individuals with disabilities.

AtWork outlines further benefits of hiring people with disabilities. These include:

Improved productivity: Effective job matching fits the employee’s abilities to the employers’ needs. The right person in the right job makes everyone more productive.

Reduced turnover: Having trouble finding good employees? Many repetitive or entry-level positions are well suited to people with disabilities.

Improved morale: People with disabilities want to work and contribute. They are motivated and reliable coworkers who add value to any team. Their enthusiasm and positive attitudes are contagious – and great for morale.

Higher retention: People with disabilities are reliable and dependable workers, with some of the highest rates of retention of any employee group.

Low investment, high return: There is no additional cost to you, other than the employee’s wages.

Win-win situation for all: Hiring people with disabilities benefits the workers, the community and your company.

What resources are out there to assist you in employing people with disabilities?

CASE: The Canadian Association for Supported Employment, established in 1999, was initially an informal network of service providers and stakeholders committed to the full participation of persons with disabilities in the Canadian labour force. CASE is a national association of community-based service providers and stakeholders working towards the Employment Inclusion of people with disabilities. This association strives to promote full citizenship and personal capacity for persons with disabilities through the facilitation of increased labour market participation and outcomes. Through such workforce participation, CASE also promotes social inclusion for Canadians with disabilities. Joining CASE signifies your organization’s role in being part of the national voice for employment inclusion.

CASE lists a number of supportive organizations that can assist in the role of employment inclusion in BC:

Family Works BC

AspectBC

Community Living BC

The Provincial Networking Group Inc.

Work BC

Inclusion BC

There are real and tangible benefits to hiring those people with differing abilities and challenges. As lawyers we are justly concerned with rights and freedoms; I trust we are equally concerned with opportunities being equally available to all.

(originally published in BarTalk, a publication of the BC Branch of the Canadian Bar Association.)

Reducing Your Exposure to Internal Fraud

David Bilinsky — Mon, 11 Feb 2019 13:00:15 GMT

Attribution: Chantal Pare.

♫ Everybody thinks you’re the lamest
We all know you’re a fraud
Life can be so frustrating
I’m so glad you got caught…♫

Music, Lyrics and recorded by: Hawk Nelson.

Fraud in the workplace cost Canadian businesses $3.2 billion, reported the CBC in 2011 (the last date I could find statistics). While lawyers have been aware of, and taken steps to prevent, fraud attempts by outsiders on their trust accounts for some time now, there is a largely unacknowledged vulnerability of fraud committed against law firms by employees. The sad truth about internal fraud is that people deny that there is a fraud problem in the first place or only react after a fraud is discovered.

Consider these internal fraud facts:

“On the basis of the evidence it is likely that losses in any organisation and any area of expenditure will be at least 3%, probably near to 6% and possibly more than 10%” (PFK.com “The Financial Cost of Fraud, 2015).
“25% of internal fraud cases result in losses of a million dollars on average” (Langlois Advocates – Lawyers, “Theft or Fraud by an Employee: Management Rights and Legal Action.”
“Previous research suggests that fraud, like many crimes, is under-reported” (Statistics Canada, 2006; PricewaterhouseCoopers, 2005; Smith, 1999).
“The more steps businesses take to control and uncover fraud, the greater their chances of detecting fraudulent activities and the better their ability to assess the effectiveness of their anti-fraud strat Thus, strategies for detecting and preventing fraud are key mechanisms in keeping the costs, direct and indirect, of fraud down” (PricewaterhouseCoopers, 2007).
“The prospects of recovery of the proceeds of fraud are dim, with 65% of victim companies recovering 25% or less of the stolen funds. And many recover nothing.” (The True Cost of Fraud: Direct Costs, Tracy Coene in Insurance & Risk Management).
ACFE in their 2018 Report to the Nations (A global study on occupational Fraud and Abuse being the largest global study on occupational fraud) looked at 2,690 real cases of occupational fraud from 125 countries over 23 major industry categories. They found:
- The mean, or average, loss due to the frauds in their study was $2.75 million, which is an enormous amount when considering how much damage such a loss represents to most organizations.
- The median loss for all cases in their study was $130,000. While 55% caused less than $200,000 in financial damage, more than one-fifth resulted in a loss of at least $1 million.

What are the steps you can take to reduce fraud?

Trust, but Verify: Trust your employees to do their jobs properly, but take steps to verify that this is in fact the case.

Establish Hiring Procedures: Check references of your final candidates. Let your candidates know that you will be doing this.

Set up Internal Controls: There are a number of well-established policies and procedures you can put into place now to reduce the opportunity for someone to commit a fraud.

Dual Signatures: While trust accounts require the signature of a practising lawyer, there is nothing that prevents you from adding a second signatory to both your general and trust accounts. Two sets of eye balls looking at a cheque is better than one.

Train Employees in Fraud Prevention: By having regular training on how to prevent and detect fraud, your law firm is sending the message on what behaviour is acceptable and what is not. Anti-fraud examiners state that employees are the “best possible fraud detectors.”

Conduct Regular Audits: “Internal auditing is an independent, objective assurance and consulting activity designed to add value and improve an organization’s operations. It helps an organization accomplish its objectives by bringing a systematic, disciplined approach to evaluate and improve the effectiveness of risk management, control, and governance processes.” (Wikipedia)

Monitor Vacation Absences (or lack thereof): “Two classic fraud prevention techniques are mandatory vacations and periodic job rotations. Mandatory vacations of one week or more (consecutively) are helpful, because the employee cannot continuously monitor a fraud scheme while away. Job rotations are also effective at disrupting these schemes especially when the employees are not given advance notice” (Essentials of Corporate Fraud).

Hire Experts: Periodically hire an expert in detecting fraud to examine your policies and procedures and assist in your antifraud steps.

Check your bank statement for unusual activity and signatures. If someone has forged your signature, you must detect this and report this to your bank quickly.

There are a number of steps that you can take to ensure that you do not become a victim of internal fraud. However, if the worst should happen, then at least you can take some solace in the fact that you have established systems and procedures that should detect the fraud and ensure that the perpetrator is eventually caught.

Internal Fraud Resources:

The Association of Canadian Anti-Fraud Examiners (ACFE) has a Fraud Prevention Check Up in PDF format in both English and French. It recommends that you perform this check up in conjunction with an Anti-Fraud Examiner but the list provides a good overview of the steps you can take now to reduce fraud.

The Law Society of BC published “The Trust Accounting Handbook” that encapsulates the procedures and rules for operating a trust account. It also publishes a list of the Fraud Alerts to the profession.

PracticePro has an excellent resource that addresses several types of fraud.

RubinBrown LLP has a list of 30 internal control considerations in an article entitled “Focus on Law Firms: Managing Law Firm Fraud Risks – An Internal Control Checklist” (June, 2016).

The Association of Certified Fraud Examiners, Inc.,in an article entitled “Designing an Effective Anti-Fraud Training Program,” sets out the topics to cover in designing employee training to counter fraud.

The Canadian BankingAssociation,in an article entitled “Protecting Yourself from Cheque Fraud,” advises “Review your monthly bank statement or regularly check your transactions through online or telephone banking. If you see transactions you didn’t do, notify your bank immediately and they will investigate.”

Dave Slovin,in an article entitled “Blowing the whistle: a well-designed, accessible whistleblower hotline can be a powerful tool in the fight against fraud,” quotes Warren E. Buffett chairman of the board of Berkshire Hathaway, a global investment firm with 180,000 employees, who said after their recently installed hotline, “Berkshire would be more valuable today if I had put in a whistleblower line decades ago.” The issues raise dare usually not of a type discoverable by audit, but relate instead to personnel and business practices.

((originally published in BarTalk, a publication of the BC Branch of the Canadian Bar Association. This article has been updated for the purposes of republishing).

2019 Predictions!

David Bilinsky — Fri, 28 Dec 2018 14:00:31 GMT

Creative Commons Zero – CC0

♫ Nothing takes the past away
Like the future
Nothing makes the darkness go
Like the light…♫

Lyrics and Music by: M. Ciccone, M. L. Ciccone, P. Leonard, recorded by: Madonna

After a break of a couple of years due to health concerns, we are resuming the New Year’s Legal Predictions Blog Post! We have reached out to our friends & colleagues for their insights into the future of the legal world. This year we are grouping everyone’s thoughts under 16 categories from “Artificial Intelligence in the law firm environment” to “Something you will be working on or thinking about in 2019.”

I am happy to present their thoughts and trust that they will be interesting, humorous and thought-provoking. I hope our dear readers will share their thoughts in the comments area!

1. Artificial Intelligence in the law firm environment

Andrew Clark

• AI is already seeing hype and uptake this year and will continue into next year. As decision-makers realize the hype is gathering momentum, the focus will shift to the risks associated with AI – which will delay actual implementation.

Eugene Meehan QC:

• Will AI and their juridical spawn replicate or replace us? Need to watch Blade Runner again, but only Ridley Scott’s Director’s Cut version – the one with the not-so-ambiguous ending.
• Service, filings, production, billings, and even reception will become increasingly automated. For some law firms. Not all.

Stewart Levine:

• Perfectly suited…perhaps better than many attorneys.

Andre Coetzee:

• Artificial Intelligence is no longer a buzz word and firms will leverage AI services to assist with mundane tasks so as to enhance productivity, save time, increase accuracy and allow the lawyer to focus on strategic work. Trust, however will be key in adoption of AI services. A few examples of the application of AI:
o automate legal searches of case law;
o proof reading of contracts and legal documentation;
o document analysis.

Nikki Black:

• AI software development will continue to increase in 2019 and we’ll see some really creative tools come to light that will help reduce the mundane aspects of practicing law, allowing law firms to streamline their workflows so that lawyers can focus on more high level, complex analytical issues. So keep an eye on AI advancements in the legal tech space – there’s sure to be a lot of interesting developments in 2019!

David J. Bilinsky

• AI will be applied for success in cases where the data sets (contracts, discovery, case law) are better suited to automated processes either due to the prohibitive costs of traditional search, the need for speed of search results or where substantive increases in accuracy favour such processes. The challenge for small to medium law firms will be to lever this technology as the application of AI currently favour the resources of a larger law firm.

2. Alternate legal service providers

Bill Lipner:

• Startup – both “public” and “in-house incubations” – will begin to spring up like mushrooms in the rainy season, as AI enters the early-market stage of development. Point-applications will continue to chip away at repetitive data-intensive applications within law firms, nudging the efficiency-curve upward.

Stewart Levine:

• Growing and rightly so…with AI great for delivery and cost to consumer.

Bill Lipner:

• You’ll see a quantum leap as legal service consumers continues to seek faster-better-cheaper services…

David J. Bilinsky:

• There are many factors that can be resisted, but battling against economics is one where the battle is ultimately futile. The demands for more affordable access to justice will continue to get louder and the movements calling for change will ultimately be successful. This will translate into the loss of exclusivity for lawyers as consumers demand more affordable justice in such areas as family law, residential tenancies, low value claims and others. Non-lawyer alternative service providers will be licensed to provide legal services in these areas, resulting in the “Wall of Jericho” that protects lawyers to come a’tumbling down.

3. Alternate business structures

Eugene Meehan QC:

• Advanced digital legal assistant technologies will begin to displace the need for some office staff at some firms, in some areas of law, but again, not all. Some areas of practice are necessarily labour intensive, and benefit from higher than average staff ratios. At Supreme Advocacy our clients benefit significantly from having our lawyers as efficient, fast, and productive as possible – our staff to lawyer ratio is 2:1. i.e. 2 staff for 1 lawyer, not the other way around.

Stewart Levine:

• Growing and rightly so…with AI great for delivery and cost to consumer.

Bill Lipner:

• Not here in the good old USA.

David J. Bilinsky:

• ABS – Alternative Business Structures – will be approved shortly after governments approve new non-lawyer legal service providers (as noted above) to provide lower-cost A2J(Access to Justice) services in addition to lawyers.

4. Law school education

Eugene Meehan QC:

• Ever since Law Schools abolished obligatory courses (i.e. first year plus Civil Pro is all you need to take in Ontario) ‘law school education’ is a potential oxymoron. You can graduate while knowing nothing of Tax, Family, Evidence, Trusts, Real Estate, Employment Law, Creditors’ Remedies, Corporate, Insurance, Municipal Law, Statutory Interpretation. Would you go to a physician that skipped cardiology, pediatrics, or infectious diseases? Sure you can say I’m stuck in medieval times – but so are law students that don’t take what they should.
• Law schools should change their focus from simply providing a legal education to creating lawyers. Dentists are good dentists on graduation, good-to-go, because they have a structured not-much-choice dental school. If a dental student goes to dental school and says I don’t wanna learn how to pull teeth, how do you think that’s gonna go?
• Lakehead has it right. They so prepare their students for the practice of law they are (in Ontario) exempted from articling. That will be the future.

Stewart Levine:

• Don’t think a move to two years will happen anytime soon but more clinical education.

Bill Lipner:

• Will legal-tech finally become a serious course of study? Ethics issues are pushing us in this direction.

David J. Bilinsky:

• Law Firms will be a major, but not the exclusive, factor finally calling for law schools to produce graduates that are trained to practice law rather than research it.

5. Post call legal training

Ajit Roopnarine

• 2019 will see a wider array of CPD courses and programs with increasing emphasis on sensitivity and unconscious biases in the workplace. Ethics-based discourse will take shape around equality, diversity and inclusion. Ultimately, heightened awareness will culminate in law firms updating or introducing internal workplace policies on topics including harassment, diversity and cannabis.

David J. Bilinsky

• Eventually lawyers will lose the right to self-regulation as governments respond to the demand for greater access to justice. With the loss of self-regulation will come the demand by governments regulating lawyers and the public that lawyers periodically demonstrate competence in certain areas prior to being allowed to practice. This will necessitate the need for CLE courses to incorporate exams to indicate actual competence in the area of study.

6. Blockchain and smart contracts

Sharon Nelson and John Simek:

• Bitcoin became a household name over the last year as front-page news reports tracked its meteoric rise and analysts speculated whether the “Bitcoin bubble” was about to burst. The recent roller-coaster ride in bitcoin value, peaking at an all-time high of just under $20,000 per bitcoin, demonstrates that digital currencies have real-world value. Unsurprisingly, the financial and legal sectors are paying close attention because cryptocurrencies now are replacing some bank functions.
• The advent of Bitcoin and the blockchain technology that powers it heralds a new period of disruption — and opportunity — for the legal profession. Lawyers will need to become familiar with these technologies work in order to remain competitive as the practice of law continues to evolve. We have seen great strides in the use of smart contracts based on blockchain this year and that trend will certainly continue.

Andrew Clark

• Blockchain is already in progress in BC – with corporate registries. It will continue – not just with contracts – but with evidence management.

Stewart Levine:

• Happening.

Bill Lipner:

• Sure: they’ll become a real thing, but so will legal services surrounding the way smart contracts function. This is just one of several new legal-services categories (AI is another). Things always go wrong with tech…

David J. Bilinsky:

• Blockchain, virtual currencies, smart contracts and AI will be four major disruptive technologies forcing change on the legal profession. Education, understanding, adaptation and assimilation will be essential to be able to continue to practice in areas touched by these technologies.

7. Legal service regulation

David J. Bilinsky:

• As noted above, as a consequence of lawyers opposing the increased calls for alternative and affordable access to justice solutions, the legal profession will be facing the loss of self-regulation in the short-term. The long-term consequences of this will be governments approving new non-lawyer service providers and a consequential new legal services regulation model. Once self-regulation is lost in one jurisdiction, the dominos will start falling in other jurisdictions and this will result in a wave of change in how lawyers operate.

8. Practice management

Stewart Levine:

• PM movement continues.

Bill Lipner:

• AI will lend a BIG hand here… all the big folks will be announcing AI-Assisted PM solutions..

Ajit Roopnarine

• 2019 will see small and small-to-medium law firms spending big on cybersecurity measures. As the trend toward work from home continues in 2019, the risk of being compromised will increase. Management will respond by implementing more cybersecurity layers for employees accessing firm servers and databases at distance. The cost of enhanced defense systems will challenge the smaller firm’s bottom line, but will provide much needed peace of mind.

Thomas. L. Spraggs:

• Over the last decade, cloud computing has become increasingly important in day-to-day activities. The cost of this transaction has been to trade significant amounts of personal privacy. In 2019, mainly in part through the reporting of data breaches, personal information use and data security will continue to be a hot topic. In reality, the bargain will continue to be too seductive for most users. People continue to trade their privacy for the convenience of free and low cost and ubiquitous access to the Internet and services. Lawyers who have wisely used these products to increase efficiency will have new dedicated legal products to choose from. From highly automated services delivery platforms to personal client portals (good riddance email) and compelling A.I. tools, 2019 is looking like the year that technology is finally becoming intuitive and relevant for lawyers who want to practice their craft in a responsible technology-enabled way. I predict 2019 will mark the year where this finally begins.

David J. Bilinsky:

In Canada, there will be increased demand for a ‘one-stop’ solution that combines integrated full legal and general accounting with practice management that is affordable, scalable and in the Cloud.

9. Legal technology

Brian Mauch:

• My prediction is now that hosted email services like Microsoft’s Office 365 are available in Canada, and are reliable, secure and inexpensive, I don’t expect many law firms of any size to continue to maintain on-premise email servers. This will be a radical switch for firms who are more comfortable keeping their email servers in their office, but they will appreciate it the first time that power or internet issues take their office off-line, and they find that they’re still able to send and receive email on their smartphones. It will also be a radical switch for technology professionals who have made a living out of maintaining on-premise email servers, but everyone will need to adapt to the new reality of cloud computing, which is finally becoming mainstream.

Michele Lange:

• The next era of communication is upon us. Legal teams are used to fast-paced, always-on communications, no matter in the office, at home or on a client site. It’s the culture of the practice of law. Furthermore, legal professionals, for the most part, live in their email because of the need for access to information all the time. Finding the next generation of communication platforms that meet these demands, while protecting security and privacy, is a significant challenge.
• In 2019, legal collaboration tools will take root as a new communication channel in law firms and corporate legal departments. These platforms are built around team messaging and represent a convergence of forces to get legal teams interacting in a fluid manner with chat, supplemented with videoconferencing and document and screen sharing.
• Collaboration platforms specific to the legal industry make this technology no longer a nice-to-have, but rather an essential tool which enables law firms and corporate legal departments to get more done in less time, contributing to the bottom line while increasing employee and client satisfaction.

Nikki Black:

• In 2019, legal cloud computing software will continue to be adopted at a record pace, acquisitions in the legal tech space will occur at at a similar rate, and artificial intelligence software will show incredible promise as it comes of age.
• For starters, cloud computing software use by law firms will continue to increase. For most firms, the focus has already shifted from whether they should use it to when and how they should use it. This is occurring, in part, because some well known legacy software programs that are premise-based are being phased out and moved into the cloud. The end result is that cloud-based options abound for, among other things, billing and law practice management software, and thus the challenge for many law firms in 2019 will be how to choose the right software tools to fit their unique needs.
• Another trend to keep on eye on will be legal tech acquisitions and mergers. In 2018 there were a record-breaking number of acquisitions and mergers in the legal technology space and that trend will continue into the coming year. Because competition is fierce, new startup companies often struggle to stay afloat. Funding has been scarce compared to prior years, leading to acquisitions as a means to an end for some companies. Also of note – more established legal cloud software companies, such as those in the law practice management space, will continue to grow their market share since they’ve already established a foothold and as a result have gained significant momentum. But don’t forget about the well known larger technology companies such as LexisNexis, Thomson Reuters, and Bloomberg Law either. All three show great promise, in part due to the large amounts of data owned and the ways that they’re putting that data to use. Between some interesting and strategic acquisitions in recent years and lots of new product development, you’re going to see increased product roll-outs from these companies that have lots of potential, especially in their use of AI tools to harness and make sense of all that data.

Stewart Levine:

• Perfectly suited…perhaps better than many attorneys.

Bill Lipner:

• Legal-Tech will become a more and more important differentiator among firms. Both what they use – and what THEY CREATE.

Andre Coetzee:

• To remain competitive, flexibility and agility are becoming increasingly important for firms. Those firms who have not adopted cloud services will do so as to ensure they remain nimble and competitive.
• We are literally swimming in data and hence leveraging Business Intelligence tools to access and depict key information visually, will lead to better decision making within firms.
• The adoption of software that allows for collaboration between staff, clients, co-council etc. is going to increase and will enhance productivity and efficiency. Lawyers and staff are able to use the collaboration software to communicate with each other at the office, at a client site, working from home or in different geographic regions.

Thomas. L. Spraggs:

• Technology just keeps getting better. Remember the days where learning software was a big thing. Now, software must be intuitive or face immediate failure. The legal community has been responsibly slow to adopt new technologies. Responsibility to fundamental principles of procedural fairness, confidentiality, and truth-seeking underpin the tensions that the ever-increasing technology landscape may encroach. 2019 may mark the year where technology begins to finally align with legal principles and technology as they become further integrated.

David J. Bilinsky:

• The New Yorker Magazine, Nov. 12, 2018 edition, published an article entitled: The Upgrade – Why doctors hate their computers. Atul Gawande states:

“Something’s gone terribly wrong. Doctors are among the most technology-avid people in society; computerization had simplified tasks in many industries. Yet somehow we’ve reached a point where people in the medical profession actively, viscerally, volubly hate their computers.”

• The issue seems to be that in moving from paper files (where doctors could write as much or as little as they wished), to computer-driven systems that span all functions across a hospital has meant that doctors must complete many if not most of the fields in the systems used to store patient records. This is seen as a time drag on most doctors – but the benefits of so doing are shared by all those working within the health care provider – from nurses to physios to pharmacists.

• The same issue exists in law firms; lawyers resent the need to record all or most of the information called for in a robust firm-wide practice management system; they don’t fully realize or appreciate the benefits to the firm as a whole in so doing.

• The doctor’s solution: moving to scribes who sit with the doctor and fill in the computerized forms with instructions from the doctor while the doctor treats the patient. I believe that lawyers could benefit from the same solution: go back to secretaries whose function is to enter all information in the practice management system (including detailed notes of all meetings, phone calls, billable time, tasks remaining and such) in order that the firm overall can realize the full benefit of the practice management system.

10. Online justice/online dispute resolution/access to justice

Sharon Nelson and John Simek:

• In August 2018, the American Bar Association released a report titled, “Access to Justice Commissions: Increasing Effectiveness Through Adequate Staffing and Funding,” available at https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_atj_commission_report.authcheckdam.pdf. The report’s major findings and recommendations included:
• Expand the stakeholders in the A2J effort beyond the judicial and legal community to include participants from business, civic, social services, and community groups;
• Adequate and effective staffing is necessary to provide A2J Commissions with support, continuity, communications, and continued momentum;
• Leadership provided by the Conference of Chief Justices and individual Chief Justices in expanding access to justice cannot be overstated; and
• Private philanthropy through contributions from private foundations have played a key role in expanding A2J and accessing such financial support should be continued and encouraged.

• Our own state of Virginia is studying and adopting some of these recommendations and we expect many other states to do the same.

Andrew Clark:

• ODR will continue to grow – in volume and jurisdiction. The judiciary will get more engaged to understand how this impacts the courts and will also focus on ensuring ODR maintains a sufficient open court system.

Stewart Levine:

• GROWING.

Jordan Furlong:

• BC’s Civil Resolution Tribunal, the most successful online dispute resolution system in the world, will export its expertise to two other Canadian provinces intrigued by the prospect of re-routing a significant number of smaller and more straightforward disputes out of the courts while keeping them within the overall justice system.

Jeremy Hessing-Lewis:

• No Click Search: Google will continue the trend of no-click search results, where answers to queries are delivered directly rather than a list of websites. Some law firm websites will leverage this technology to improve traffic through banks of Q&A content. The accuracy of this information will become increasingly problematic as Google attempts to match the authority of search engines with localized legal authority. This will help address the access to justice gap even while misinformation is occasionally broadcast at scale. Rather than competing with free, lawyers will double down on the message that “legal information is free, legal advice costs money.”

Bill Lipner:

• It’s coming: but on-line “assisted” by real attorneys using tools like AI to reduce the issues and facts to a short-list a human will then sift through.. less leg-work – more cases per attorney at lower cost.

David J. Bilinsky:

• The kinks in BC’s Civil Resolution Tribunal are being worked out. As it matures, other jurisdictions will jump on the Online Dispute Resolution bandwagon. Already the UK is moving forward on Her Majesty’s Online Court as are other jurisdictions. No one expected the transition from bricks and mortar courts to virtual courts to be seamless; but the promise of lower costs, faster resolutions and greater access to justice offers too much promise to ignore. Progress will continue on this front.

11. Law, ethics and technology

Andrew Clark:

• The high cost of court houses will continue to prioritize and put pressure on the courts to make use of technology in an effort to defer or eliminate some of the needs for major courthouse upgrades and replacements.

Stewart Levine:

• Time to “get over it.”

Bill Lipner:

• Oh boy: this will continue to evolve as law schools finally admit that technology is part of legal practice, and the ethics of AI (the newest but not the only example) show us there are no bright lines…

David J. Bilinsky:

• Each new technology will continue to raise ethical issues for lawyers. Legal regulators, in order to do their job properly, must acquire the technical sophistication to understand the legal and ethical implications of emerging technologies. This will present a challenge for regulators, CLE providers and law schools in order to stay ahead of the curve and educate and regulate the lawyers of the future.

12. Cybersecurity

Joe Kashi:

• With the publication of ABA Formal Ethics Opinion 483, the ethical obligations of lawyers to prevent, disclose, and remedy data breaches have become clearly defined.
• These data security ethical mandates and the increasingly severe consequences of data breach will substantially change the trajectory of legal technology.
• In a very real sense, the highly-connected online world is now filled with unascertainable dangers. Paradoxically, being so easily and broadly connected may force us to re-adopt a less connected model of practicing law in self-defense, as leading cybersecurity experts warn that threats are evolving faster than reliably effective defenses.
• Increasingly, smaller law firms are prime targets for extensive “spearphishing” financial fraud and organized crime in the form of ransonware extortion, causing major business disruption and mounting losses for even the smallest law office. When your files become unusable due to extortionate encryption, it’s hard, if not impossible, to effectively represent your client and avoid blowing deadlines. Perhaps a quarter of our local law offices have been immobilized by ransomware within the past year or so, and those are only the ones of which I am aware.
• Consequently, lawyers who fail to prioritize data security, protection of client confidences, and continued operations increasingly do so at their own peril.

The current data security environment has several short-to-intermediate-term implications:

In the short term, cloud computing will become less attractive, at least from an ethical standpoint, as multi-hundred-million account breaches become the norm, affecting even experienced online companies like Yahoo, Equifax, and Adobe.

The advent of sophisticated data security threats like spearphishing and ransomware add another layer to older security threats, such as the identity threat, “social engineering, and interception of unsecured Wi-Fi and cable networks. Those older threats remain very real in many law firms.

Due diligence will become more demanding than simply accepting marketing puffery about “assured online security” at face value. Data security, avoiding operational disruption, and protecting client confidences will trump desktop convenience and techno-cool when in apparent conflict.

One unexpected short-term result of tightened security is that fax transmissions of highly confidential documents are becoming more common. That’s already occurring with medical records being faxed rather than Emailed. Easier, more wide-spread encryption of transmitted records will remedy this.
Our highly connected world may become less connected in self-defense, as certain critical law office functions like accounting and billing are moved to internal systems that have no connection to the Internet.
Standalone applications that are not reliant upon cloud computing/storage will again become attractive due to their ascertainable level of security and greater end-user control.
Encryption will become the norm for confidential client data, particularly with the advent of Windows 10’s easy Bitlocker implementation.
Stricter Internet usage policies and user training to avoid phishing and inadvertent introduction of malware into an office network will become critical parts of law office data security.

Current data suggest that over 90% of serious data breaches are due to human error and that smaller law offices have become prime targets for highly specific “spearphishing” financial fraud.

Layered anti-malware defenses at each office will become the norm. Relying upon some free anti-virus software of uncertain provenance will not be ethically nor operationally sufficient.
Cyber insurance and third party cybersecurity testing will become the norm.

Sharon Nelson and John Simek:

• Since 2016, many solo/small/mid-sized firms began adhering to the Center for Internet Security’s (CIS) Controls. In March 2018, CIS released CIS Controls Version 7, the newest (and free) iteration of its original 20 important cybersecurity recommendations. The CIS Controls are a prioritized set of actions any organization can take to improve their cybersecurity posture.
• The controls are now separated into three categories: basic, foundational, and organizational:
• Basic (CIS Controls 1–6): These are key controls which should be implemented in every organization for essential cyber defense readiness.
• Foundational (CIS Controls 7–16): The next step up from basic – these technical best practices provide clear security benefits and are a smart move for any organization to implement.
• Organizational (CIS Controls 17–20): These controls are different in character from 1–16; while they have many technical elements, CIS Controls 17–20 are more focused on people and processes involved in cybersecurity.

• The new CIS Controls, which may be found at https://www.cisecurity.org/controls/, align better with the NIST Cybersecurity Framework and map directly to it. Think of the NIST framework as the “what” and to the CIS Controls as the “how.” Together, these resources are concise and easily understood. Both are valuable free resources and we expect an increasing number of law firms to work with both of these standards to enhance their security posture in 2019…

Andrew Clark:

• All this technology growth will result in mounting focus and pressure on cyber security. Any major breach will trigger a significant pushback and delay in the courts adopting more technology.

Stewart Levine:

• Great idea, not a reality, question is how to spread the risk.

Jeremy Hessing-Lewis:

• Data Breaches at Canadian Law Firms: With mandatory breach reporting now in effect, we will start to see Canadian law firms confess to data breaches. While they may not match the scale of the Panama Papers, all law firms have a tendency to aggregate data. It is hard to imagine a legal data breach that wouldn’t meet the “real risk of significant harm” standard. Privacy Commissioners will be notified, and we will slowly start to see law firms using information security competency as a competitive advantage. Cybersecurity is a precondition to confidentiality. This should accelerate the trend away from on-premises computing infrastructure and will lead insurers to take a closer look at legal practice management systems.

Bill Lipner:

• Clients will push law firms on this, in a big way. Smaller firms will be challenged to meet the bar (no pun)…

Andree Coetzee:

• Ransomware and other malicious software will continue to evolve and become even harder to detect. Business class anti-virus software, firewalls, spam filtering and a well planned and executed backup, disaster recovery and business continuity plan is essential to ensure your firm is protected from these cyber-attacks.

Thomas. L. Spraggs:

• The marketplace has put recording devices that stream live events into nearly every aspect of life (mobile phones, citywide high-speed wifi, 5G mobile) The world has never been this connected and it will continue to strain expectations about what is being done and what should be done for clients. Sometimes there is a good reason to slow down.

13. Risks and speed bumps for lawyers

Stewart Levine:

• Low value services will be provided by AI.

Bill Lipner:

• Adoption is the biggest risk for lawyers. Always has been – always will be. But as technology innovation accelerates and the rest of the work drives the efficiency curve up – and the cost curve down – with technology, those slow-to-adopt lawyers face an ever-growing risk of extinction.

David J. Bilinsky:

• The challenge for lawyers, legal regulators, law schools, CLE providers and others in the legal and judicial sector is to stay current on new technologies. AI, the Blockchain, cybersecurity, electronic fraud and privacy are just a few of the powerful forces working on the legal profession. Failing to stay current on the implications of technology today is dangerous; in the future it may be dire or even negligent.

14. Strategic goals and planning for law firms

Stewart Levine:

• Essential for business functions.

Jeremy Hessing-Lewis

• Distributed Offices: Law firms will be increasingly unable to retain staff in the urban core of the Vancouver and Toronto markets. This will be compounded by the reality of commercial real estate costs and the ubiquity of cloud computing. Firms will respond by decentralizing their practices into multiple regional offices. This will better serve their clients, reduce staff commutes, and force firms to rethink the “downtown” firm business model. It will also push firms away from on-premises computing and allow for the wholesale reconsideration of practice management systems.

Bill Lipner:

• Tech assisted. Informed by big-data. Creativity and ingenuity become an essential part of strategic planning in 2019.

David J. Bilinsky:

• Technology is moving from what began as a support role to a central role in how to practice law today. The implications of this are that technologies must be central in planning how a law firm will approach practice today.

15. The future of the legal profession

Stewart Levine:

• Critical to understand high value service and what good service is.

Bill Lipner:

• Unknown.

Andrea Cannavina:

• Due to increased attention/awareness/aggressive protection of privacy, lawyers will be under increased scrutiny regarding their duty not to inadvertently disclose.

David J. Bilinsky:

• The need for lawyers is assured as lawyers are central to the operation of the Rule of Law in our democracies. What is not assured is the Main Street lawyer, or the Big Firm lawyer as we envision them today. New Technologies, new non-lawyer legal service providers, increased competition, increased A2J needs and many other threats will be working to transform the legal profession. One cannot afford to remain complacent.

16. Something you will be working on or thinking about in 2019

Stephen Gallagher:

• Here is a project I am working on with the New York State Bar Association’s Senior Lawyer Section.

• Meeting of the Minds is a series of regional Gatherings for lawyers created by the Senior Lawyer Section of the New York State Bar Association, in partnership with county bar associations throughout the state. The goal for these meetings is to connect senior lawyers looking to transition away from full-time law practice with younger attorneys and law students seeking personal growth in the profession. These Gatherings will bring lawyers together with a diverse group of speakers, coaches, medical professionals, and experienced attorneys to share their successes in handling life transitions.

• The Gatherings are designed to bring together lawyers who are looking for a safe place to participate in community to gain greater knowledge and support for transition planning. Access to a private intranet along with monthly webinars will be added as the community grows. Rather than looking for one, grand design for the perfect transition into a law practice or retirement away from a law practice, these Gatherings will use 10-minute, video sessions to provide just-in-time learning for each participant. These “quick hits” of information have been designed so they can be accessed through mobile devices such as smartphones and tablets.

• We believe this collaborative process can help better utilize the skills of lawyers age 55 and over by expanding the dialogue about how individuals can build their way forward from wherever you currently are, regardless of the life design problem you are currently facing.

• You may have heard this all from me before, but now, the young lawyers I worked with during my time at NYSBA are the senior lawyers I am once again enjoying working with. Growing old “in community” can be powerful.

Doug Munroe:

• One topic that is not on your list, and I have been thinking of for some time, relates to AI outside the law firm environment and how it might impact our substantive legal rights and procedural rights and, possibly, redefine the role of lawyers in society in ways more transformative than AI inside a law firm ever can. I don’t have time to hash out the thesis, but consider the extreme connectivity of all aspects of life, constantly collecting information about all people and establishing data on things as varied as who was at certain location at a certain time, where people travelled in a day and by what means of transportation, what they bought, searched for, said, perhaps thought, etc. and the warehousing of that data, largely in trust of corporations, but also of state agencies, and the sharing of that information, or the harvesting of it through technology, and lastly, of the potential tyranny of algorithmic AI to profile each and every one of us and “risk rate” us according to a host of classifications (e.g. likely to buy X, likely to commit crime Y, likely to support a politician with Z views, likely to contract a certain illness, likelihood to be a greater or lesser insurance risk, a model employee, citizen, etc.). In such a world are our rights merely symbolic? Can how we are codified by AI create barriers to getting jobs, accessing essential services, being discriminated against, etc.? What role do lawyers have if those trend-lines start to form? Think here of how little, collectively, the profession has done regarding mass surveillance. I don’t think this will all come to a head in 2019, but the capacities are being created for some (perhaps many) of these issues to impact the world we live in and therefore the clients we will one day serve.

• Stay well and active.

Andrew Clark:

• For me personally – 2019 looks like I will be spending a significant amount of time on the videoconferencing strategy for the courts – which encompasses many of the points above.

• Have fun with this!

Eugene Meehan QC:

• How soon to put the snow tires on my bike in Ottawa. How long to leave them on.
• More Scottish-Canadian lawyers will run the Boston Marathon. In kilts.

Stewart Levine:

• WELLBEING / SELF CARE for Lawyers…

Bill Lipner:

• Technology and its impact on the business of law.

David J. Bilinsky:

• I will continue to be fascinated in watching the wheels of change working not just on the legal and judicial sector but in society generally. I believe that this is a most exciting time; we are witnessing the birth of a new era akin to the Industrial Revolution with all the consequential implications. Technology is the force of change; the rate of change is phenomenal and will only continue to accelerate, provided that the economy doesn’t collapse. I truly believe we haven’t seen anything yet and we are highlighting some of the changes here. Nothing makes the darkness go like the light.

Bios:

David J. Bilinsky:

David J. Bilinsky is a Practice Management Consultant and lawyer for the Law Society of British Columbia (presently on health leave).

He is a Fellow of the National Center for Technology and Dispute Resolution (NCTDR) at the University of Massachusetts. He is also a Fellow of the College of Law Practice Management and past Editor-in-Chief of ABA’s Law Practice Magazine.

For many years, David has been an adjunct professor at Simon Fraser University teaching a totally online, graduate level course in the Masters of Arts in Applied Legal Studies program. This MA program received the 2011 Award of Excellence from the Canadian Association for University Continuing Education. He has designed and has taught the first legal technology course in Canada for the University of Toronto Law School.

Dave’s mission in life is to empower lawyers to anticipate the changes, realize the opportunities, face the challenges and embrace the expanding possibilities of the application of practice management concepts to the practice of law in innovative ways that provide service excellence.

Dave is the founder and Chair of the Pacific Legal Technology Conference and a past Co-Chair of the American Bar Association’s TECHSHOW.

Dave writes regularly for many publications in the USA and Canada including being a contributor to the award-winning blog www.slaw.ca, its sister blog, tips.slaw.ca as well as his own blog: www.thoughtfullaw.com. His blog has been named a Finalist or Award Winner eight times in the Canadian Legal Blog Awards (CLAWBIEs) and was part of the first group of legal blogs inducted into the CLAWBIE Hall of Fame (2017).

Nicole (Nikky) Black:

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, legal practice management software for small law firms. She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.

Andrew Clark:

Andrew Clark is an independent consultant specializing in management consulting and project management in the Justice Sector. Andrew has spent the last fourteen years providing management consulting for a number of clients worldwide. Andrew started his career over 20 years ago in software engineering as a specialist in user interface design. Andrew worked as an IT Director for the BC Ministry of Attorney General where he was the project director for the JUSTIN project, BC’s criminal case management system. After managing a software company for 8 years, Andrew started his own consulting company. Throughout his career, Andrew has focused on Project Management and Team Building within an organization. He is a UVIC graduate with a B.Sc. and an MBA. Andrew is also a Project Management Professional certified by the Project Management Institute and was an associate faculty at Royal Roads University where he taught project management education within the MBA program for 6 years.

For the past fourteen years, most of Andrew’s work has been in the Courts, highlighted by his work in the British Columbia as well as work in the Yukon, Vietnam, Rwanda and Guatemala. Andrew was the Project Manager for the British Columbia eCourt program, a portfolio of projects co-sponsored by the Judiciary and Court Services Branch. He also worked on the JUDGE Project – a CIDA funded project working with the courts in Vietnam – where he was responsible in overseeing the design, procurement and implementation of Digital Audio Recording in 3 courtrooms.

Andrew is a volunteer technology board member for BC Justice Education Society and has been a member of several national committees and working groups. He has spoken at several conferences including the Court Technology Conference (CTC), the Canadian Forum on Court Technology and the Center for Legal and Court Technology Affiliates Conference.

Andre Coetzee:

André Coetzee, MBA, PMP, BA, H.Dip.Ed.

(Master’s in Business Administration, Project Management Professional, Bachelor of Arts, Higher Diploma in Education)

Andre Coetzee is a Director and a founding partner of i-worx, a Premium Hosting Service Provider for law firms. Andre is constantly researching and exploring new and better Hosted IT services with the goal of continuously providing legal firms a premier IT experience. As a result i-worx has developed a reputation for delivering innovative Hosted IT services to law firms, including Hosted Desktops, Hosted Email and secure file sharing with exceptional personalized service. For more information or to learn more about how hosted services could benefit your Firm, call 604.639.6300 or email andre@i-worx.ca.

Andrea Cannavina:

Andrea Cannavina is the creator of the D-A-F-T organizational process, CEO of LegalTypist, Inc. and director of the Virtual Bar Association. She has more than 15 years of legal secretarial and administrative experience coupled with 17 years as a Virtual Assistant. These years of experience helped her to carefully consider, thoughtfully develop, and thoroughly test the application of specific technology in law firms — helping firms improve efficiency and reduce costs.

Steve Gallagher:

I am a frequent speaker at bar association meetings on topics related to transition/succession planning, leadership skills training, and professional development.

Jordan Furlong:

Jordan Furlong is a consultant, author, and legal market analyst who forecasts the impact of changing market conditions on lawyers and law firms. Jordan is the author of Law Is A Buyer’s Market: Building a Client-First Law Firm and writes regularly about the changing legal market at his website, law21.ca.

Jeremy Hessing-Lewis:

Jeremy is:

a business lawyer with Vancouver-based Small Law;
a legal practice management consultant through Appropriate Legal Technology; and
the Senior Digital Advisor at the legal marketing agency, Skunkworks Creative Group.

Jeremy can be reached at jeremy@gosmall.ca or 604.229.2620 ext 2.

Jeremy Hessing-Lewis / Senior Digital Advisor
jeremy@skunkworks.caSkunkworks Creative Group Inc.
604.739.8976
600 – 55 Water StreetVancouver, BC V6B 1A1
http://skunkworks.ca

Joe Kashi:

Joe Kashi is a trial lawyer in Soldotna, Alaska. He received his BS and MS degrees from MIT in 1973 and his JD from Georgetown University in 1976. Since 1990, he has written and presented extensively on legal technology issues. When not verbally castigating recalcitrant computers, he expends otherwise billable hours piloting his twin-engine Cessna Skymaster aircraft in Alaska, as a karate black belt and frequently exhibited fine art photographer, and working up to be the 2020-2021 Rotary District Governor for District 5010, comprising the State of Alaska and Canada’s Yukon Territory.

Michelle Lange:

Michele C.S. Lange (mlange@workstorm.com) is the VP, Legal Technology for Workstorm. She has more than 15 years of experience in e-discovery, computer forensics, cybersecurity, privacy and technology’s role in law. Workstorm (www.workstorm.com) is an enterprise-grade workplace collaboration platform built for legal professionals.

MICHELE C.S. LANGE, ESQ.

Vice President, Legal Marketing
Workstorm
T: (612) 400-5290
E: mlange@workstorm.com
W: workstorm.com

Thanks for the opportunity to look toward the future of the practice of law!

Michele

Stewart Levine:

Stewart Levine is an attorney, mediator, management consultant, and coach. He creates resolution and agreement in the most challenging circumstances.
He has written and spoken extensively before legal professionals for over thirty-five years. He is the author of the best-seller Getting to Resolution: Turning Conflict into Collaboration.

Bill Lipner:

Bill Lipner is a consultant to law firms who wish to execute paperless or paper-lite strategies for more efficient, less costly, mobile-aware operations . Mr. Lipner also advises law firms on Quality-of-Service and Business Development strategies that dramatically improve client retention and profitability.

Mr. Lipner also is editor of the Legal Administrator Daily, a daily newsletter delivering all the news about the business of law.

Brian Mauch:

Brian Mauch is CEO of BMC Networks, a Vancouver-based outsourced IT provider that specializes in law firms. Brian obtained both law and commerce degrees from the University of British Columbia, and then combined his education with his passion for computers to form BMC Networks in 1997.

Happy holidays, and all the best for 2019!

Eugene Meehan QC:

After graduating from the University of Edinburgh (LL.B.), I was awarded a Commonwealth Scholarship to pursue an LL.M. at McGill University. In the Québec milieu, I (mis)treated Montréalers to French spoken with a Celtic accent. People thought I was from northern Québec … way north (some actually figured I came from Abitibi Temiscamingue). I did a second LL.B. at the University of Ottawa, and then a Doctorate in Civil Law back at McGill.

A teaching opportunity drew me to Edmonton where I was a Law Professor at the University of Alberta. During eight years in western Canada, I also articled and practised law in Edmonton (Parlee McLaws LLP, as it now is). After that, Law Professor and Director of Graduate Studies at the University of Ottawa, when Chief Justice Lamer asked me to be his (first) Executive Legal Officer.

My spouse Giovanna was appointed to the Superior Court of Justice, sitting in Ottawa, on April 11, 2003.

Doug Munroe:

Sharon D. Nelson, Esq.:

Sharon D. Nelson, Esq., is the President of Sensei Enterprises, Inc., a digital forensics, cybersecurity and information technology firm in Fairfax, Virginia.

Ms. Nelson is the author of the noted electronic evidence blog, Ride the Lightning and is a co-host of the Legal Talk Network podcast series called “The Digital Edge: Lawyers and Technology” as well as “Digital Detectives.”

She is a frequent author (sixteen books published by the ABA and hundreds of articles) and speaker on legal technology, cybersecurity and electronic evidence topics. She was the President of the Virginia State Bar June 2013 – June 2014 and a past President of the Fairfax Law Foundation.

She may be reached at snelson@senseient.com

John W. Simek:

Mr. Simek is the Vice President of Sensei Enterprises, Inc., an information technology, digital forensics and cybersecurity firm located in Fairfax, VA. Mr. Simek has a national reputation as a digital forensics technologist and has testified as an expert witness throughout the United States. He holds a degree in engineering from the United States Merchant Marine Academy and an MBA in finance from Saint Joseph’s University.

Mr. Simek holds the prestigious CISSP (Certified Information Systems Security Professional) certification in addition to multiple other technical certifications. He is the co-chair of ABA TECHSHOW 2019 and a co-host of the Legal Talk Network podcast Digital Detectives. He is a frequent author (sixteen books published by the ABA and hundreds of articles) and speaker on legal technology, cybersecurity and electronic evidence topics.

He may be reached at jsimek@senseient.com.

Ajit Roopnarine:

Ajit Roopnarine is a family law lawyer at Russell Alexander Collaborative Family Lawyers. He works in all areas of family law and often advocates in the Superior Court of Justice on family law matters, though he prefers collaborative practice.

Ajit can be reached at:

T: 1-905-655-6335
E: ajit@russellalexander.com

Thomas L. Spraggs:

Tom Spraggs is the owner and operator of Spraggs & Co. Law Corporation, an injury litigation boutique. He holds a Bachelor of Laws, Master of Laws, and Masters of Business Administration. Tom is also a Qualified Arbitrator. His law firm has experienced significant growth over the last several years, and his lifelong passions for technology and learning have helped him develop unique approaches to collaborative work processes and practice management. The firm was acknowledged by the Canadian Bar Association with the 2016 Innovative Workplace Award.

Tom Spraggs joined the British Columbia Law Institute board of directors in 2012 by appointment of the Attorney General. He has served on the Strategic Planning Committee, the Audit, Finance and Risk Committee (as Chair), and is currently serving as Chair of the BCLI.

Tom is active in the community, previously serving a six-year term as a director of Douglas College. Currently, Tom is a proud member of the Canadian Bar Association and co-chairs the Civil Litigation Tri-Cities/New Westminster section. As a member of the Law Societies of British Columbia, Yukon and Alberta, Tom’s work has been primarily in civil litigation, and he also has a strong interest in administrative law, legal technology and governance. He has been a frequent participant in the CLEBC Solo and Small Firm Conference as well as co-charing the 2018 Professional Wellness for Lawyers and Law Firms. Tom is a regular contributor to the TLABC publication “The Verdict” writing on legal technology. Tom is Co-founder of Qase.ca, a legal technology start-up based out of Vancouver.

Rethinking Your Tasks

David Bilinsky — Mon, 03 Dec 2018 17:00:53 GMT

♫ But there never seems to be enough time
To do the things you want to do
Once you find them… ♫

– Music, Lyrics and recorded by: Jim Croce

Photo by Jordan Benton from Pexels.

As lawyers we are accustomed to working long, hard hours. Indeed, some writers such as Jordan Furlong have stated there is no such thing as work-life balance as our lawyer work culture has changed over the last while from moderate to frenetic. As our clients’ demands and needs sped up, our pace increased to meet them. However, while our clients’ figured out how to increase efficiencies with technology and new ways of doing things, we as lawyers fell behind. Jordan’s suggestion is that we now need to learn to reshape the way we work to align better with what our clients want and what we need. In the process we can consider and address the toll that our current pace places on our lives and those close to us.

To start, we need to perform better client service in ways that reduce the time we spend on a matter. This leads to learning how to increase efficiencies and improve workflows to accomplish more in less time. There is a role for the increased use of technology here. Besides figuring out how to be more efficient in the office, we also need to turn our minds off when we are out of the office to get the rest and relaxation we need to continue to be on the top of our game and avoid burnout. We all know what we love to do outside of work to relax; the trick is finding or creating the time to do it.

So how do we do this? In January 2016, Inc.magazine published an article entitled “A Simple, Science-Backed Trick to Better Work-Life Balance.” All of us leave our desks each night with uncompleted goals and tasks. Brandon Smit of Ball State University found these uncompleted tasks are intrusive and interrupt our evening’s peace. He cited the Zeigarnik effect, wherein uncompleted tasks are more likely to be remembered and intrude on your non-work time, interrupting your ability to recharge.

But Smit found a way to neutralize these intrusive thoughts. Before leaving the office, not only make a list of your outstanding to-dos, but take the next step and clearly plan when, where and how you will tackle each one. He found that by specifying how you will deal with these as-yet uncompleted tasks, you can put these matters out of your mind and lessen their intrusion into your private time. You need not worry about unfinished business waiting for you back at the office. There were added benefits from adopting this approach. Smit found that by using this system, participants found it easier to let go of work. Your mind can relax as it “knows” that you have thought about how to accomplish the tasks that you need to get done.

By not only planning what you need to do but also when, where and how you will do it, you tell your mind in its restful time it can stop worrying. This way you can use your relaxation time to do the things you want to do, now that you have found them.

So how do you achieve a better work-life balance?

If getting more efficient and effective is part of the answer to achieving better work-life balance, then here are tips, apps and sites that can further you along in this journey.

Inbox Zero

This is a technique where you decide what to do with every email in your inbox immediately as you read it. File it, add it to a To-Do list, trash it – just don’t leave it in your inbox! Strive to empty your inbox daily. Also use SimplyFile which speeds up dealing with email by “guessing” which folder in Outlook an incoming and outgoing email belongs in. It is fast, accurate and amazing! I would recommend it for any PC (unfortunately only for Windows….not Mac).

Brainstorm

This is sitting down and writing down as many ideas as you can generate to address a problem. Fortunately, mind-mapping software can help you organize and grow/group the ideas as they come to you. You can try: Mindjet, XMind, Coggle, Freemind or MindNode (the 5 best mind-mapping applications per Lifehacker.com).

Capture Your Ideas

Ideas come to you at all times in the day. Use Evernote, Microsoft’s OneNote or carry a paper notebook in your briefcase to capture those ideas before they slip away. Evernote and OneNote are also great ways of organizing digital information of all types, including web pages, video and audio. You can even dictate your notes into Evernote.

Build Lists

Many of us live by our To-Do lists. Time management experts tell us to have separate lists for work and for personal use. Apps such as Wunderlist allow you to keep these lists on your smartphone, PC, Mac, Android, iPhone, Watch and more and keep them all in sync.

Block off Time and Reduce Interruptions

Take your To-Do list and block off time in Outlook, or whatever calendar application you are using, to allocate time to tasks. Have a sign for your door that politely asks people to not interrupt your work time unless it is an emergency. RescueTime and similar applications will not only block Internet access for a set period (allowing you to concentrate on tasks at hand) but will provide you with a breakdown of how you spent your time during the day. Studies have shown that it takes time to spool up to really attack a task; if you are being constantly interrupted then you are not making the best use of your time and reducing your effectiveness.

Log Time

Even if you don’t bill by the hour, it is a great idea to track your time to determine your effectiveness. This can also help you determine your effective hourly rate if you divide your collected fees on a matter by the actual (not just billable) time put into a matter. There are many time tracking and time and billing applications such as: PCLaw, Clio (goclio.com), Amicus Attorney (amicusattorney.com) and many others.

Learn to Say No

People will always request that you take on new commitments. While none of us wish to be curmudgeons who never help out others, you have to balance this time with the time spent on tasks that are important to you, and allow yourself the time to complete them. Accordingly, one important skill is to say no gracefully but firmly.

(originally published in BarTalk, a publication of the BC Branch of the Canadian Bar Association).

2019 Predictions!

David Bilinsky — Mon, 26 Nov 2018 16:00:01 GMT

♫ Open up your eyes now, tell me what you see..♫

Lyrics and music by John Lennon and Paul McCartney, recorded by The Beatles.

CC0 Public Domain

After too long a layover, I am bringing back the Legal New Year Predictions!

This year we are going to look at 16 different categories that seek to cover the bigger issues in law, education, access to justice, technology and what the future may hold. This is your chance to add your voice to what lies ahead for the legal profession in 2019. I will also be asking past and new contributors to chime in. I am hopeful that we can generate some interesting insights into where you see change happening in the legal profession and have some fun in the process.

Here are the categories:

2019 Prediction Categories

AI in the law firm environment

Alternate legal service providers

Alternate business structures

Law school education

Post call legal training

Blockchain and smart contracts

Legal service regulation

Practice management

Legal technology

Online justice/online dispute resolution/access to justice

Law, ethics and technology

Cybersecurity

Risks and speed bumps ahead for lawyers

Strategic goals and planning for law firms

The future of the legal profession

Something you will be working on or thinking about in 2019

Send me your thoughts at daveb@thoughtfullaw.com. I will be publishing these starting mid-December, 2018.

So gentle reader – tell me what you see!

Technology Competence for the Family Lawyer

Jim Calloway — Tue, 28 Aug 2018 16:44:12 GMT

Some lawyers were concerned when the Model Rules of Professional Conduct were changed to include a comment that competence as a lawyer included an appreciation of “the benefits and risks associated with relevant technology.”

Now 31 states have adopted some version of this language in comment 8 to Rule 1.1, according to legal technology journalist Robert Ambrogi who maintains regularly updated information about the comment adoption on his blog.

Many of the legal technology community thought this comment was so obvious in today's times that it was difficult to understand those who object to the comment.

Reading an article in The New York Times this summer titled Thermostats, Locks and Lights: Digital Tools of Domestic Abuse made me think about how the lawyer who works in the family law arena faces a vastly different set of technology concerns (and competencies) about client safety and privacy compared to just a few years ago when few were familiar with the Internet of Things. But there's more to this than just telling a client to change their WiFi password.

So I wrote Technology Competence for the Family Lawyer as both a thought exercise and a guide for family lawyers. The question I attempted to answer is broad: What do you need to tell today's family law client about what that should be done to digitally protect oneself in the event of a separation or divorce, especially when the client may not have set up or be very familiar with the technology they are using? I'm sure I missed something but am pleased with the result. And while asking for social media shares sometimes comes across as self-promoting, I believe that there are many family lawyers that would like to read this column. So feel free to share or ask us about reprint rights.

Podcast on The Data-Driven Ethics Initiative

Jim Calloway — Wed, 27 Jun 2018 21:51:44 GMT

You may not have heard of something called the Data-Driven Ethics Initiative. The organizers say it is an initiative to gather and use data to completely overhaul and improve the Rules of Professional Conduct to better benefit the public. Skeptics say it is an effort primarily funded by online legal tech companies with goals that are more tied to their business development plans than reform. The organizers say on their website that they have law school deans onboard (note the plural.)

As you can surmise, like every trained lawyer, I am a bit of a professional skeptic and that is particularly true where legal ethics rules are concerned.

So it seemed like a good idea to invite one of the two named organizers, Erin Gerstenzang, to be a guest on our Digital Edge Podcast episode, The Data-Driven Ethics Initiative. I just met Erin for the first time at ABA TECHSHOW 2018 and was so impressed by one of her presentations that I included some of her talk in my column A Brief Recap of ABA TECHSHOW 2018 in the Oklahoma Bar Journal. During the podcast Erin discussed her view of the challenges that good lawyers face today with legal ethics rules and how rule changes might better serve the public. I encourage you to listen to the podcast.

I'll give Erin's co-organizer (?) Megan Zavieh (who I also met for the first time at ABA TECHSHOW 2018) some equal time by pointing to her recent article on the Initiative Sweeping Change Is Needed to the Model Rules (and It Is Not Scary).

The Initiative's rather austere website states: "We will kick off this initiative the week of May 22, 2018, from Las Vegas where we will be attending Avvo's Lawyernomics conference. We will publish the most current draft - our MVP- on October 4, 2018, from New Orleans, when many of us will be attending the Clio Conference." That's 135 days to gather data and produce a draft, including weekends and holidays. So I guess most of us will be waiting until then. Personally I will attempt to keep an open mind because I do appreciate how the technology-fueled changes of today can make it challenging to apply the rules to emerging technology.

But I'd certainly encourage everyone involved with the Initiative to lobby for transparency. Who is providing funding? It's not really believable that an all-volunteer team, especially if many of the members are busy attorneys, can produce such significant results during such a short span over the summer, even if they work all the weekends. But maybe I misinterpret this MVP label. If it is a roadmap of what needs to be examined, then it certainly could be a valuable conversation starter. We shall see.

Six Attorney Practice Management Tools Added as OBA Member Benefits

Jim Calloway — Tue, 12 Jun 2018 16:03:55 GMT

Right before our Oklahoma Bar Association Solo & Small Firm Conference kicks off, the OBA announces six new practice management member benefits.

(June 6, 2018) Six new member benefits to help Oklahoma lawyers better manage their practices have been announced by the Oklahoma Bar Association. Members who sign up for new subscriptions will receive discounts to Clio, CosmoLex, MyCase, PracticePanther, Rocket Matter or Zola Suite, all cloud-based practice management services for law firms.

“Supporting Oklahoma lawyers as they incorporate modern technology tools into their law practices is an important goal of the OBA. Better efficiency and security tools benefit both lawyers and their clients,” said OBA President Kimberly Hays of Tulsa. “Different solutions focus on different aspects of law practice, which is why the OBA provides free consulting for Oklahoma lawyers who are shopping for a practice management tool.”

Practice management solutions organize digital copies of all client documents, lawyer’s notes, calendar information, pending tasks and all other client information using easy-to-access dashboards. Lawyers can review documents, record time, assign tasks to others in the firm and do many other functions, all within these applications. These tools also provide online client portals for the secure sharing of information with clients.

“There are many available and affordable tools to assist lawyers. While there is a learning curve, the time savings in day-to-day operations becomes apparent rather quickly,” said OBA Practice Management Advisor Darla Jackson.

As part of the vetting process, each vendor demonstrated their product and provided access to complimentary accounts to allow a hands-on preview experience. Additionally, each product was reviewed by OBA Member Services Committee members.

Jim Calloway, OBA Management Assistance Program Director, said, “These cloud-based services were designed to protect confidential client information and to provide both better security for client data and better remote access than many other methods.”

OBA members can find brief descriptions of the practice management solutions, their features and access codes for discounts by logging in to MyOKBar and accessing Practice Management Software Benefits at the bottom of their Profile page.

The 18,000-member Oklahoma Bar Association, headquartered in Oklahoma City, was created by the Oklahoma Supreme Court to advance the administration of justice and to foster and maintain learning, integrity, competence, public service and high standards of conduct among Oklahoma’s legal community.

A Brief Recap of ABA TECHSHOW 2018

Jim Calloway — Wed, 06 Jun 2018 21:54:49 GMT

ABA TECHSHOW was held March 8 - 10, 2018. So the column, A Brief Recap of ABA TECHSHOW 2018, by me and OBA PMA Darla Jackson is not exactly "hot news." Such is the result of print publication deadlines sometimes. But only a few of the previous TECHSHOW 2018 reviews mentioned the interesting relationship between TECHSHOW exhibitor Logikcull and the Ramones or provided you with the Electronic Discovery Reference Model chart. And I know this is the only recap which quoted Tom Mighell on "non-records." So hopefully this recap was worth the wait. While I am tempted to describe this column more, it is probably best if I pause and just let you read our column.

The next ABA TECHSHOW is scheduled for February 27 - March 2, 2019 is Chicago. Mark your calendar now.

Collaboration Tools for Lawyers

Jim Calloway — Fri, 01 Jun 2018 20:19:17 GMT

It has been Collaboration Week for lawyers. It's not like the ABA or Congress designated it as such, but that still seems to be the case.

The "week" actually started last Friday when Attorney At Work published Tech Tips: Collaborating Well With Others. The post noted:

For this edition of Friday Tech Tips, we asked the practice management technology experts: “What’s your best tech tip for collaborating well with others?” Here’s good advice from Jim Calloway, Andrea Cannavina, Jared Correia, Darla Jackson, Dennis Kennedy and Tom Mighell, Catherine Sanders Reach, Deborah Savadra and John Simek.

There is some good content in that post. And wisdom from two Oklahomans. 😊 What more could you want?

But wait, there is more!

This week our Digital Edge podcast was released. The topic is The Case for Collaboration and our guests were Dennis Kennedy and Tom Mighell. They co-authored The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, Second Edition, which was recently released by the ABA. Since Dennis and Tom also have their own long-running podcast, the Kennedy-Mighell Report, no one will be surprised that our end result was a fun and easy-to-listen to podcast.

Today's collaboration tools provide new opportunities for lawyers--if they take the time to learn about them.

Keeping the Customer Satisfied

Jim Calloway — Mon, 21 May 2018 16:59:27 GMT

Keeping the customer satisfied should be an important of every business today. This includes law firms, even though we refer to our customers as clients.

My column in the Oklahoma Bar Journal, Keeping the Customer Satisfied, outlines some ideas to do just that. One of the first rules is to not do things that aggravate the customer, like having them waste time in the the law firm's waiting area for a long time after their scheduled appointment.

With some clients the challenge is helping them understand clearly the challenges they faced and benefits they received. As I noted in the column:

"With medical services, a sick patient can become well or a broken bone will heal. With legal services, successful delivery of the services is often couched in terms that were previously not familiar to the client like decrees, court orders, injunctions, closings and the like."

Take this opportunity to read these ideas and then think about what you can do to improve client satisfaction.

As an additional bonus today, here is some appropriate music for your inspiration as you consider how to make your current clients "clients for life."

Jim Calloway: Takes on the future of the profession at the Bar Leader Institute

Jim Calloway — Thu, 03 May 2018 19:33:43 GMT

There have been a number of recent conferences focused on the future of law practice and the delivery of legal services. It's too bad I can't attend them all!

Someone recently reminded me of a time I was invited to speak to the ABA's Bar Leadership Institute, the annual training for bar presidents and presidents elect. Several of us were asked to do Ted-style short talks on the future of law practice. If talking to a large gathering of accomplished lawyers who had been chosen as leaders by their peers wasn't intimidating enough, my talk followed one by then ABA President William C. Hubbard.

I decided to watch the video again, fully prepared to cringe at how dated it might have become since it was delivered in 2015.

But this short talk is still relevant today. Many people look at the challenges of legal services delivery today and blame lawyers for the problems. But lawyers work within the system. Many clients need legal counseling as a part of finding a solution to their legal problems. I remain unconvinced that all of the perceived problems we face today can be solved with for-profit online services, as some of their spokespersons contend. The solutions to many of today's complex problems don't lend themselves to fill-in-the-blank answers. Our population and the complexity of matters handled in our courts has increased while budgets for many courts have been at as standstill level or reduced. Innovation takes time and money.

There is no doubt that business practices for all types of businesses are evolving today. Email replaced much of postal correspondence. That was more efficient and often saved money for the law firm's clients. But now there are email security concerns that never existed with sealed and stamped correspondence. Rapid change has benefits and unintended consequences.

Solo and small firm lawyers help clients across the world every day. While this "Take on the Future" presentation was intended for bar presidents, it is still good for today's lawyers, particularity solo and small firm lawyers. More effectively using digital client files, improving efficiency and automation, particularly automation of the document creation process, should be on their agenda. Serving your client's best interests has always been your mission and it will always be. It's just times and the tools- they are a-changing.

Lawyer's Stories from GPSolo Magazine

Jim Calloway — Mon, 30 Apr 2018 18:21:15 GMT

Before April ends, I wanted to recognize the March/April 2018 edition of GPSOLO magazine. The Lawyer's Stories features were very well done and provided a resource of interest for most lawyers (and young lawyers in particular.)

GPSOLO is a fine and useful publication. Update: Read this issue soon. When the new issue is posted, the previous one is archived where access is apparently is restricted to members of the ABA Solo, Small Firm and General Practice Division.

One odd thing about GPSOLO magazine is attorneys who are not ABA members are not allowed to subscribe to the magazine ($135.00 per year) because they are "individuals not eligible for ABA membership." Since many solo and small firm lawyers are not ABA members, that seems a bit short-sighted to me. So if you enjoy their great content, you need to make sure and log in to read it at least every other month.

By contrast the subscription costs for ABA's Law Practice Magazine is $64 per year with no such restriction noted.

Congratulations to all of the GPSOLO Magazine editorial team on such a fine issue!

The Ethics of E-mail Tracking Software and Web Bugs: More Complicated Than You Might Think

Jim Calloway — Wed, 18 Apr 2018 20:50:09 GMT

Yesterday's feature on Attorney at Work was Does Email Tracking Violate the Rules of Professional Conduct? It was written by Mark C. Palmer, who is Professionalism Counsel for the Illinois Supreme Court Commission on Professionalism. He cites a recent Professional Conduct Advisory Opinion from the Illinois State Bar Association, (Opinion No. 18-01, issued January 2018) along with advisory opinions from Alaska Bar Association, New York State Bar Association and Pennsylvania Bar Association to conclude that using e-mail tracking software is unethical.

(Since I am discussing legal ethics, please note these opinions expressed are my own and not those of my employer.)

Palmer cites an instructive example of tracking an email with a settlement offer as it is opened by counsel, forwarded, and then opened by the client's general counsel and several client representatives so the sender can unethically gauge how serious the settlement offer is being taken. Illinois opinion 18-01 makes the same point: "The undisclosed use of email tracking software by a lawyer, without the informed consent of the recipient, conceals the fact that the sending lawyer is secretly monitoring the receipt and handling of the email message and its attachments by the original recipient as well as each subsequent receiving party." The New York Opinion also noted that the use of these web bugs may violate The Electronic Communications Privacy Act, 18 U.S.C. § § 2510, et seq. (I note these are widely used in email marketing today and I haven't heard of prosecutions.)

I do understand. Web bugs are creepy and invasive.

But this leads to another question. Is using U.S. Postal Service certified mail an ethics violation? I doubt you could find any lawyer who says that it is. Certified mail is used daily in law offices for service of process, to confirm delivery and when mailing valuable items. It is simple and straight-forward with none of the hidden aspects of web bugs. No law office wants to run out of certified mail supplies because almost every law office uses certified mail regularly.

But with drafting committees focused on creepy web bugs, I fear they have used language that might be interpreted as also prohibiting what I consider a legitimate practice of using "certified emails." One can easily think of many legitimate uses for such a service, such as accepting a settlement offer with an expiration date by email. We have even heard of cases where a judge has authorized delivery of process or notices by electronic means. One would certainly want to have the digital equivalent of a USPS certified mail "green card" in that situation. And isn't it pretty obvious that we will see greater use of electronic service of process as more laws are changed to allow this?

The Pennsylvania Bar Association's Formal Opinion 2017 – 300 discusses email receipts. It states: "This Opinion relates to the use of web bugs and similar devices, but does not prohibit the use of “Read Receipts” or “Delivery Receipts” or similar tools used by Microsoft Outlook and other email programs. Because recipients are aware of, and may configure their software to permit such receipts, to make their use optional, or to preclude their use, their use by lawyers does not violate the Rules of Professional Conduct...."

"This Committee concludes that the Pennsylvania Rules of Professional Conduct prohibit lawyers from using “web bugs” or any other method to track the receipt and distribution of email sent to opposing counsel. While the use of visible tracking devices such as those used in commercial email do not violate the Rules of Professional Conduct, the use of a web bug, which opposing counsel cannot determine is present, violates rules 4.4 and 8.4."

Since an e-mail recipient can decline a "Read Receipt Request," it is ineffective to prove someone read something if they do not cooperate --and sometimes those for whom you most want to have proof of delivery are also those who would never click on a "Read Receipt" agreement. The other problem is referring to visible vs invisible tracking. Computers maintain a lot of information that is available for those who know how to find it. Is that visible or not? For example, every email in your inbox has an Internet header that contains much information if you know how to view it. Is that visible or invisible? It is important to note that the title of the Pennsylvania opinion is Ethical Obligations of Lawyers Using Software To Track Email Sent To Opposing Counsel. So in that context, I am quite comfortable with the conclusion that anything that reports back to you anything more than delivery and opening from opposing counsel's email should be known to opposing counsel. Certified email providers can provide notices within the email that their product is in use.

Illinois State Bar Association Opinion 18-01 is not limited to opposing counsel, however— and that is problematic. This opinion states: "A lawyer may not use tracking software in emails or other electronic communications with other lawyers or clients in the course of representing a client without first obtaining the informed consent of each recipient to the use of such software." I understand that they were focused on those nasty web bugs. But certified email is still a form of "tracking software." In these days of lost emails, emails that are mysteriously never delivered and spam filters grabbing emails, one can make a case that competent representation today involves making certain that a client has actually received and read an important digital communication. A process that insures that is quite different from a web bug telling you that a young client forwarded your email to his mother for her interpretation.

Lawyer regulators must appreciate that not all legal representation involves corporations with general counsel. Sometimes lawyers represent individuals who made bad decisions which led to the representation and who will continue to make poor decisions during the representation. It is a lawyer's obligation to assist them in making good decisions— if possible. So making certain a client opened an email advising them of the change in the time of next week's hearing or the location of their deposition sounds more like good lawyering than inappropriate spying to me. A delivery receipt alone could still mean it was trapped by a spam filter and never seen by the intended recipient.

But that's not the only practical problem. The ABA released Ethics Opinion 477 on encryption of attorney-client email on May 11, 2017. This opinion makes it clear that some attorney-client communications cannot be sent via plain unencrypted email. The opinion notes that a hard and fast rule cannot be crafted to apply to all situations, and therefore a fact-based analysis must be applied. That could be a bit time-consuming for the law firm and mistakes may be made. Plus some individual clients may not be comfortable with the mechanics of decryption processes.

I have long believed that smaller law firms will be well-served to use client portals to share documents and other communications. See Email Attachments vs. Client Portals. It is likely easier to get a client to log into a portal these days. They may have done something similar for items ranging from HIPAA-protected medical records to their Amazon account. Most of the cloud-based practice management systems available for lawyers include built-in client portals, making their use much quicker and easier for the law firm than other methods. It is a great client service to have all of the documents related to a matter organized and available for online client access 24 hours a day.

But, of course, online portals log everything that happens from the number of times a client logged in to the number of times they opened a particular document. These logs could also provide some protection to the attorney if a client denies ever seeing a document and the log shows the client opened it on ten different occasions. Lawyers often document their files for their protection against false claims or bad memories. Most would think that is a good business practice. Labeling these logs as unethical seems wrong to me.

Illinois State Bar Association Opinion 18-01 notes that recording of phone calls without permission is illegal in Illinois and it is therefore unethical for lawyers to record client phone calls without permission. It cites that precedent among several supporting the proportion that web bug e-mail tracking is likewise unethical. Would it extrapolate this opinion to say that examining a client portal access log was unethical?

While that may seem unlikely to some observers, Illinois lawyers using client portals may consider documenting the client's consent to this aspect of representation. That may involve adding language to their attorney-client agreement referencing client portals and how their logs operate to obtain informed client consent or other methods. But today most people understand that logging into a password-protected website leaves a record of your visit.

Hopefully if ethics authorities examine the web bug issue in the future, they will make note of the possibility of laws authorizing digital service of process, an ethical lawyer's need to make certain important client communications are not lost in a spam filter and that it might be a good thing, at least in some cases, if a lawyer was aware that a client was not opening the attorney's emails.

An old saying is bad facts make bad law. Maybe bad web bugs do, too. But "bad" is a value judgment and, to be clear, if you receive any electronic newsletter or regular emails from any electronic mailing list, the odds are the sender not only knows whether you open each e-mail, but the average time of day you open their e-mails— if not more.

My March 2018 Reading Room

Jim Calloway — Mon, 16 Apr 2018 16:04:14 GMT

Maybe it was because ABA TECHSHOW was in March or maybe it was cold weather providing people more time to write. All I know is my OBA/MAP Reading Room for March 2018 with its monthly collection of free articles, columns and blog posts ended up with 19 reading suggestions for you. I usually edit it down to a smaller number, but couldn't this time. You don't have to read them all. I use a bit of an old school "link farm" look to let you see all of the titles at a glance, or this month maybe most, depending on the size of your monitor.

The selections include a first person account on "How I Saved Myself From Near Financial Ruin" with some valuable lessons, client communication checklists, plain language contracts, what Toyota taught a Florida Legal Aid office, a powerful pro bono success story and thoughts on photo business cards that changed my thinking about their utility in "working" a conference. If you have read some of these, you should stop by the Reading Room to see what you missed.

Managing a Law Practice in the Age of Intelligent Machines

Jim Calloway — Thu, 12 Apr 2018 17:38:41 GMT

Managing a Law Practice in the Age of Intelligent Machines represents my attempt to speak to those lawyers who are perplexed by the number of things they are reading and hearing about law office automation and artificial intelligence replacing lawyers. That can happen and I cite one example where it has happened already. But many, hopefully most, lawyers will be using automation and AI to better serve their clients. I hoped to provide a general framework of when automation makes sense and how the law evolves to make particular legal processes more amenable to automation.

Law firm consultant Jordan Furlong has it right. In this column, I noted his observation that lawyers should learn to fight with, not against, the intelligent machines.

This column was published in the March/April 2018 issue of Law Practice magazine, which is its Marketing issue.

Among the many great articles in this issue are Developing a Marketing Mindset by Wendy L. Werner, Social Media Marketing Has Gone Viral by Dan Pinnington, Moving Beyond the 'Practice of Law' by Jordan Furlong (Yes, him again!), Do Lawyers Need a Digital Detox? by Sharon D. Nelson & John W. Simek and The Showdown: Amazon Echo Versus Google Home by Tom Mighell.

Lawyers have been working with machines for a long time. The IBM Selectric typewriter was a law office favorite because it could save and automatically regurgitate sentences and paragraphs into documents. That was smart technology at the time.

Wellness and Opening a Law Practice

Jim Calloway — Mon, 09 Apr 2018 18:32:48 GMT

There's a lot of talk about lawyer wellness— and there should be. The practice of law is a demanding profession. The emotional and psychological toll it takes on lawyers is well documented. But I saw a Twitter thread today that would seem counterintutive to many wellness advocates because the author says the first thing the lawyer opening a practice needs to do about wellness is to see a CPA. I won't recap the author's entire message in this post, but she has a lot of important observations. You can read the thread by clicking on the graphic below.

I am a big fan of lawyer wellness. I've noticed lately that the only ones I see preaching it are people who only do law part-time because they have a secondary source of income. From someone who was solo, without any backup, let me say, it is still possible to be healthy in law.
— Amicus Trish (@LeadChangeTrish) April 8, 2018

I've been teaching our free Opening Your Law Practice program in Oklahoma for many years. The next edition is May 1, 2018. Oklahoma lawyers and those awaiting Oklahoma Bar Exam results can see the schedule and get sign up information here. (Sorry, no online version yet. You have to show up in person.) We have breakfast and lunch provided by Oklahoma Attorney's Mutual Insurance Company and so advance registrations are strongly preferred. We will have an audience of new lawyers, but we also typically have quite a few veteran lawyers as well, either wanting a refresher or facing a career change. Once a retiring judge came up after the seminar and told me this was the most valuable seminar he had ever attended. As I beamed and thanked him, he continued, "There's no way I want to do all of that." He found employment with flexible hours instead, so maybe it was a great program for him.

But now I have something new to add to my program. For lawyer wellness, your health care professionals are important, but so is your CPA.

Who says Twitter isn't valuable?

Those who cannot attend our seminar can still take advance of our free OBA MAP Starting a Law Practice Directory of resources. You do not have to be an OBA member.

Just Google That!

SBlackford — Wed, 08 Mar 2017 01:53:53 GMT

When I first heard about Googling from my late mother-in-law, I was skeptical. Jackie was relentless about converting people to her newest way of doing things. I felt I had her number so was prepared to be underwhelmed by the usefulness of Google. As usual, Jackie was right! Google was a great tool and it still remains one of my favorite tools.

Google looks so unassuming….

I used to just pop what I’m looking for into the search box and away I’d go. Recently, I learned some helpful search tricks that make me more of a Google Geek or at least more proficient in my Google searches. In the spirit of Jackie, here are just five of the cool search tricks that may help you supercharge your next Google search.

TIP ONE.

Don’t let a misremembered word or phrase stop you. Use an asterisk ‘*’ to tell Google that there is a missing word or group of words that should be filled in with the most relevant search result. For example, “Data that is being transmitted over the Internet, into the cloud, should be * to protect it.”

This is what Google figured out I was searching for:

TIP TWO.

Stumped by a slang term you think you should know for surviving holiday dinners with your teenaged nephew? Use “define:slangword” to finally find out what they are talking about.

This is what Google revealed about the term, “tweaker:”

TIP THREE.

If you want to find something quickly within a website, use “site:”

This is what Google revealed about the term, “practice management” on the Oregon State Bar website:

TIP FOUR.

Find links to certain websites with “link:” For example, do you want to know who has linked to your website or to your blog or even your firm’s Facebook page?

Here is what Google showed me about links to my blog:

TIP FIVE.

Search for specific words in a title by using “intitle:”

Here is what Google for articles about waiving attorney-client privilege:

I hope you can put these five Google search tips to use and keep your eyes and ears open for additional Google search tips!

How Safe Do You Want to Be?

SBlackford — Sun, 05 Feb 2017 23:50:44 GMT

The scary thing about trying to prepare yourself and your law firm from intruders is identifying the possible source of attack. That’s why this infographic from The Guardian caught my eye. Do you know who is the bogeyman? You may be in for an Alfred Hitchcock surprise attack.

Infographic by Digital Guardian

Yahoo! Latest Dangerous Place to Be

SBlackford — Fri, 23 Sep 2016 17:31:03 GMT

I read Oregon’s Attorney General Ellen Rosenblum’s fraud alert on the Yahoo data breach. Makes me unhappy to read because 500 million users includes lawyers and many friends and family members. Why anyone would use yahoo for email if they are a lawyer is a question for another day. Or not. Please beware that the old adage: there’s no such thing as a free lunch has important lessons. Encrypt, encrypt, encrypt. Or plain avoid using free email platforms for your business. Google has business mail that is different from their free gmail. Your business is your business. But so is your clients’ business so you have an ethical duty to protect your clients’ business.

Ok, I am off my soapbox. Here below is AG Rosenblum’s post. Sign up for her alerts here.

Was your information exposed in the Yahoo data breach?

Yahoo has confirmed data “associated with at least 500 million user accounts” has been stolen in what may be one of the largest cybersecurity breaches ever.

The stolen data may include names, email addresses, telephone numbers, dates of birth, passwords, as well as security questions and answers.

“This latest hacking “bombshell” — and the huge number of people affected by it — is a real reminder of something we often don’t take the time to do: We must be vigilant about changing our email passwords regularly! If you use any Yahoo product, you should make sure you change your password immediately, and closely monitor any credit cards associated with your account,” Attorney General Rosenblum said.

If you use Yahoo services and have an account with Yahoo, you should do the following as soon as possible:

Change your Yahoo password, as well as your Yahoo secret questions and answers; and
If you reused any passwords, secret questions and answers from your Yahoo account to any other account (Gmail, Hotmail, etc.), change that information in those accounts as well.

In addition, Oregonians who have shopped and used a debit or credit card on a Yahoo account, or on a Yahoo web service, should:

Monitor your credit report. Visit www.annualcreditreport.com or call 1-877-322-8228 to order a free credit report and review it for errors.
Avoid clicking on links or downloading attachments from suspicious emails. Yahoo will be contacting affected users about this issue, but these emails will not ask you to click on any links or contain attachments and Yahoo will not ask for your personal information.
Beware of “phishing” (the activity of posing as a legitimate company to gain access to financial accounts) attempts and unsolicited calls or emails offering credit monitoring or identity theft services. These offers are attempts to steal your personal information.

If you find unexplained activity on your credit report or if you believe you are a victim of a “phishing” scam, there are important steps you can take to protect yourself. Contact the Attorney General’s consumer hotline at 1-877-877-9392, review the Attorney General’s website – www.oregonconsumer.gov – for information on identity theft, or view the Federal Trade Commission’s identity theft resource, available at www.consumer.gov/idtheft/.
Thank you, Attorney General, Rosenblum!

Practice Area(s) plus 1

SBlackford — Sat, 09 Jul 2016 22:10:47 GMT

All lawyers must practice in two areas, their substantive area and ethics.

I remember the chit chat before the first day my ethics course in law school. The consensus was that it was an unnecessary class but would be a welcome break from the substantive law classes. I kept my opinions to myself as I had already found the ABA Model Rules on the Internet and devoured them. I liked Ethics and found the hypos a breath of fresh air, real life dilemmas sure to arise. Looking back almost twenty years later, I think it was the most helpful class as no matter what practice area lawyers get or transition into, ethics is always a plus 1 that stays consistent.

In Oregon, bar complaints are directed to the Client Assistance Office for evaluation of whether there has been a breach of ethical duties that need to be referred to the bar’s disciplinary counsel. Triage. They deal with a lot of complaints from clients and third parties. As long as the CAO has issued their reports, the main complaint areas revolve around communication, neglect, and fees. How easy to fix these problems!

ORPC 1.4 Communication. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

Reasonably Informed. Some lawyers bristle at this. Clients want to know what’s going on with their case. It is a pretty easy standard to meet, though beware the subjectiveness of what is reasonable. In the lawyer’s world there are many client matters to be concerned with, some with more pressing urgency than others. In the client’s world, there is only one case: the client’s. Communicate ahead of time how you will communicate, how often you communicate, and when you will communicate. Provide a roadmap of the client matter so that the client understands the real life process of a lawsuit. On t.v. They are in court before the second commercial and the case is settled before the closing credits run. What a shock to find out how long it really takes.

Be clear with the message communicated, I will call you back later, meaning what?? Doubt this is a big deal? Those of you who are parents should think back to your call to the pediatrician when your baby was sick. I was told the doctor would call back and I was frozen for hours next to the phone. Fear clutched at me and I wouldn’t have wanted to eat even if I had walked away from my post into the kitchen. “Teething, just teething could bring on a fever and wailing?” Teething and colic were frightening events to a new parent. The tone of voice delivering the telephone diagnosis just made me feel more distressed and angry to have waited so long for a return call. The doctor was busy with urgent matters and mine concerns were insignificant. Your client feels the same often. If I’d only known that the doctor returned calls from 11:30 to noon and 4:30 to 5:00 or the next morning from 7:30 to 8:00.

Care of your client is easier when you explain timelines ahead of time even though all divorces don’t proceed in the same timeline. Do yourself and your clients a favor by setting forth what happens in a typical divorce proceeding, what can cause delays, when the client should call to report what just happened. Otherwise you may get called when the future ex spouse has taken the bathroom rug. Seriously, one family law attorney shared this very annoyance. I helped her to compose a Call Me Do’s and Don’ts list with a few funny examples thrown in to lighten things up. A divorce is traumatic and emotional and people going through a divorce aren’t going through their best times. And especially for personal injury suits, there long periods when nothing is happening. Because your client is not perched on a chair day after day seeing that nothing is going on, really, you should explain this ahead of time and use simple Status Update forms to quickly check in with your client and reassure you haven’t forgotten your client exists. Think about it: your client is in pain physically, mentally, emotionally thinking about this pain 24/7. A Status Update sent out monthly or bi-weekly is welcome reassurance that you haven’t forgotten. It’s even better than calling your client’s home at noon on a work day to leave a voicemail that all is well, you’re just waiting to receive medical records requested last week from the doctor. Scan that Status Update or bcc yourself or your legal assistant to preserve a record of your client communication.

Reasonable requests for information are handled the same way. If your client is too demanding, you have failed to properly set client expectations. I told my elder law clients in my written fee agreement that I would provide them copies of everything, which comprised their client file. I gave them a sturdy client file with a copy of their signed fee agreement and with papers write down all their questions so they didn’t forget something they wanted to ask me. I told them to bring this file to every client meeting and to put their copies into it. Documents were hole-punched and stamped “For Your Client File, No Action Needed.” It cut down on multiple phone calls to tell me something or ask me a question they had forgotten earlier. I adapted this information management tool from teaching sixth graders how to stay on top of their assignments. See if you can adapt it for your own clients.

ORPC 1.3 Diligence. A lawyer shall not neglect a legal matter entrusted to the lawyer.

First thing to consider about client complaints about neglect: communicate don’t ignore your client or your client’s matter. Keep track of deadlines, even those imposed by your client, and use reminders, at least one reminder but this is frequently increased to three because the deadline requires adequate preparation time. Don’t wait until the last minute to do something because technology gremlins love causing printer malfunctions or crashing software programs when either are guaranteed to raise your stress level. Allow the time it takes to avoid poor performance. Notice the word entrusted. A client matter — no matter how small –has been entrusted to you by the client. It is always a big deal to your client. One of the biggest dangers of taking a case out of a desperate need for cash flow is that you may not like that client or the client matter. And what does that encourage? Putting off dealing with the client or client matter. You know that client file languishing on your credenza, office chair, or floor? Tackle it! Sooner than later. Get it done or fire the client before it is too late and you are stuck or have a bar complaint for neglect or a malpractice claim for missing a deadline that causes harm to your client. It is interesting to note that many follow up inquiries after a malpractice claim reveal that the lawyer would not have taken on the case in retrospect. Save yourself and your client needless stress: though shall not procrastinate or neglect a client matter. See the PLF practice aids for calendaring and docketing along with checklists for the substantive areas of law. you need checklists so you don’t overlook anything which is neglecting to do what you are supposed to do and when you are supposed to do it!

ORPC 1.5 Fees (a) A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excess fee or a clearly excessive amount for expenses.

Notice that a fee is evaluated for being in compliance at three distinct times.

1. Enter into an agreement is when you form your contract, verbal (foolish) or in writing, at execution of your written fee agreement (wise).

2. Charge for fees or expenses. Sending out your monthly billing statement.

3. Collecting for fees or expenses. When client pays you.

All three times must be reasonable. What is reasonable? See Rule 1.5(b). Review the Economic Surveys on the OSB website which provide details about what is customarily charged, where, and by whom. http://www.osbar.org

Enjoy your practice of XYZ law and ethics!

Acting Competently: Complying with data security laws

SBlackford — Fri, 01 Jul 2016 23:08:23 GMT

by Sheila Blackford ©2016 Lawyers have a fiduciary duty to preserve client confidentiality that has long been codified in Oregon under ORPC 1.6 Confidentiality of Information. For more than a quarter of a century, paper-based client files have become electronic files. The need to protect electronic client records has only become more imperative as lawyer have transmitted and stored their client files on the Internet.

ORPC 1.6 (7) (c):

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

ABA Model Rule 1.6 Comments 18 and 19:

Acting Competently to Preserve Confidentiality

[18] Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. For a lawyer’s duties when sharing information with nonlawyers outside the lawyer’s own firm, see Rule 5.3, Comments [3]-[4].

[19] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule. Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules.

DATA BREACH.

The words should fill you with dread. Then you will have the proper mindset to address the necessary protections so that you can prevent a data breach or at least insure that if data is breached, the data has been rendered unreadable because it is encrypted.

Be concerned about a breach of security and personal information. Both are defined terms in the Oregon Identity Theft Protection Act. ORS §§646A.600-646A.628.

What is a breach of security?

ORS §646A.602 (1)(a) “Breach of security” means unauthorized acquisition of computerized data that materially compromises the security, confidentiality or integrity of personal information maintained by the person.

What is encryption?

ORS §646A.602 (6) “Encryption” means the use of an algorithmic process to transform data into a form in which the data is rendered unreadable or unusable without the use of a confidential process or key.

What is personal information?

ORS §646A.602 (11) “Personal information”:

(a) Means a consumer’s first name or first initial and last name in combination with any one or more of the following data elements, when the data elements are not rendered unusable through encryption, redaction or other methods, or when the data elements are encrypted and the encryption key has also been acquired:

(A) Social Security number;

(B) Driver license number or state identification card number issued by the Department of Transportation;

(D) Financial account number, credit or debit card number, in combination with any required security code, access code or password that would permit access to a consumer’s financial account.

(b) Means any of the data elements or any combination of the data elements described in paragraph (a) of this subsection when not combined with the consumer’s first name or first initial and last name and when the data elements are not rendered unusable through encryption, redaction or other methods, if the information obtained would be sufficient to permit a person to commit identity theft against the consumer whose information was compromised.

(c) Does not include information, other than a Social Security number, in a federal, state or local government record that is lawfully made available to the public.

How do we develop safeguards for this personal information?

Requirement to Develop Safeguards for Personal Information ORS §646A.622

646A.622 Requirement to develop safeguards for personal information; conduct deemed to comply with requirement. (1) Any person that owns, maintains or otherwise possesses data that includes a consumer’s personal information that is used in the course of the person’s business, vocation, occupation or volunteer activities must develop, implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of the personal information, including disposal of the data.

(2) The following shall be deemed in compliance with subsection (1) of this section:

(a) A person that complies with a state or federal law providing greater protection to personal information than that provided by this section.

(b) A person that is subject to and complies with regulations promulgated pursuant to Title V of the Gramm-Leach-Bliley Act of 1999 (15 U.S.C. 6801 to 6809) as that Act existed on October 1, 2007.

(c) A person that is subject to and complies with regulations implementing the Health Insurance Portability and Accountability Act of 1996 (45 C.F.R. parts 160 and 164) as that Act existed on October 1, 2007.

(d) A person that implements an information security program that includes the following:

(A) Administrative safeguards such as the following, in which the person:

(i) Designates one or more employees to coordinate the security program;

(ii) Identifies reasonably foreseeable internal and external risks;

(iii) Assesses the sufficiency of safeguards in place to control the identified risks;

(iv) Trains and manages employees in the security program practices and procedures;

(v) Selects service providers capable of maintaining appropriate safeguards, and requires those safeguards by contract; and

(vi) Adjusts the security program in light of business changes or new circumstances;

(B) Technical safeguards such as the following, in which the person:

(i) Assesses risks in network and software design;

(ii) Assesses risks in information processing, transmission and storage;

(iii) Detects, prevents and responds to attacks or system failures; and

(iv) Regularly tests and monitors the effectiveness of key controls, systems and procedures; and

(i) Assesses risks of information storage and disposal;

(ii) Detects, prevents and responds to intrusions;

(iii) Protects against unauthorized access to or use of personal information during or after the collection, transportation and destruction or disposal of the information; and

(iv) Disposes of personal information after it is no longer needed for business purposes or as required by local, state or federal law by burning, pulverizing, shredding or modifying a physical record and by destroying or erasing electronic media so that the information cannot be read or reconstructed.

(3) A person complies with subsection (2)(d)(C)(iv) of this section if the person contracts with another person engaged in the business of record destruction to dispose of personal information in a manner consistent with subsection (2)(d)(C)(iv) of this section.

(4) Notwithstanding subsection (2) of this section, a person that is an owner of a small business as defined in ORS 285B.123 (2) complies with subsection (1) of this section if the person’s information security and disposal program contains administrative, technical and physical safeguards and disposal measures appropriate to the size and complexity of the small business, the nature and scope of its activities, and the sensitivity of the personal information collected from or about consumers. [2007 c.759 §12]

Health Insurance Portability and Accountability Act of 1996 (HIPAA)

Patients have federal legal rights to their protected health information. We sign forms about our privacy every time we go to the doctor’s office, treatment clinic, or hospital. Doubtful the average lawyer let alone average person has ever read the HIPAA rule which is nearly 700 pages long. Where this impact lawyers is when they are business entity that deals with health care providers, which includes CPAs, doctors, and lawyers.

HIPAA in Oregon. Oregon acknowledges a number of health-care provider/patient privileges that include preventing others from disclosing communications made with the health care provider for the purposes of treatment and diagnosis. See OR. REV. STAT §§40.230, 430.235. Remember, that federal privacy regulations under HIPAA will preempt state laws unless the pertinent state law is more stringent. See 65 Fed. Reg. 82,462, 82,464.

Lawyers need to be careful of individually identifiable health information. The best way to protect confidential client data: ENCRYPTION. Encrypting data which is then properly backed up and stored is the easiest way to begin fulfilling your obligations under HIPAA and under ORPC 1.6.

Gramm-Leach-Bliley Act 15 U.S.C. §§ 6801-6809 and §§ 6821-6827, as amended

Under the Gramm-Leach-Bliley Act, financial institutions must protect the privacy of consumers’ personal financial information. This is why your financial institution provides you with annual notice of their privacy policies and why they must give notice and an opportunity to opt of before disclosing any of the consumer’s personal financial information to an unaffiliated party.

For lawyers, consider that you contain personal financial information in your client files, such as credit card numbers and bank account numbers. There may be a number of reasons that you have copies of your clients’ financial account statements, loan applications, tax returns, financial documents used in bankruptcies and dissolutions of marriages and business partnerships. How are you protecting the confidentiality of this information? Where are you storing it?

The best way to protect confidential client data: ENCRYPTION. Encrypting data which is then properly backed up and stored is the easiest way to begin fulfilling your obligations under Gramm-Leach-Bliley Act and under ORPC 1.6.

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