Sui Generis-a New York Law Blog

Ethics of VLOs and advertising in New York

2013-05-15T14:14:05-04:00

This week's Daily Record column is entitled "Ethics of VLOs and advertising in New York."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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The legal profession is in a state of flux. New technologies are changing the ways that lawyers advertise and deliver legal services. Internet-based tools, including social media and cloud computing, offer lawyers more choices than ever when it comes to running their practices and reaching potential clients.

As a result, innovation in the delivery of legal services, driven by rapid changes in technology, has increased greatly in recent years, with virtual law offices (VLOs) being a prime example. VLOs — where lawyers deliver legal services using an online portal — have become much more common, both because these types of practices are very flexible and cost-effective and because new cloud-based platforms have been introduced which are designed to support VLOs.

But as is always the case when lawyers innovate in the delivery of legal services, VLOs can trigger a host of ethical issues. Last month, the New York State Bar Association’s Committee on Professional Ethics addressed some of those issues in Opinion 964 (April 4).

In this opinion, the committee addressed two questions asked by an attorney who operated a virtual law practice out of her home and provided legal services and interacted with clients primarily using the Internet or by other electronic means. The inquiring attorney sough clarification regarding two different issues: 1) Whether she could use a commercial mailbox service address, in lieu of her home address, as her only office address listed in advertisements, and 2) Whether she could use a commercial mailbox service address as the only office address listed on business cards and letterhead.

The committee first addressed the definition of the term “principal law office address” as set forth in Rule 7.1(h), which provides, in relevant part, that “[a]ll advertisements shall include … the principal law office address … of the lawyer or law firm whose services are being offered.” The Committee reviewed past iterations of this rule, including the advertising rules adopted by the Appellate Divisions in 2007, which changed the term “office address” as set forth in DR 2-101(k), the prior version of the rule, to “principal law office address” as it section now appears in DR 2-101(h), the current version of the rule.

The committee explained that it interpreted the fact that the term changed so little from one iteration of the rule to the next to mean that the Appellate Divisions’ intent continued to be that “all lawyer advertisements were to disclose the address of an office where the lawyers were present and available for contact, and where personal service or delivery of legal papers could be effected.”

Accordingly, the committee concluded that in order to avoid misleading the legal consumer, all advertising for legal services must include the street address of the lawyer’s principal office, even if that address is the lawyer’s home address, as was the case with the inquiring attorney. However, the committee also determined that so long as the attorney’s business cards and letterhead were not being used as advertising, but instead were being “used in the ordinary course of professional practice or social intercourse without primary intent to secure retention,” then a mail drop address could be listed as the sole address without mention of the attorney’s principal address — in this case, her home address.

I believe the committee’s conclusion in this case is misguided and fails to acknowledge the realities of a 21st century law practice. In fact, I criticized the requirement that a lawyer include the address of a home office in advertisements back in 2007 when the new advertising rules were enacted. As I explained in 2007, one way to avoid the risk of misleading the legal consumer regarding an attorney’s location while maintaining the privacy and safety of a lawyer with a home office is to require that attorney advertising list the county or city in which the attorney practices along with a mail drop address, but not the exact address of the home office.

This opinion surprised me, since more often than not, the New York State Bar is ahead of the curve when it comes to addressing the ethical issues triggered by new technologies. But in this case, the committee’s decision is surprisingly short-sighted and penalizes innovative lawyers seeking to serve legal clients more efficiently and cost effectively. This is an unfortunate decision that I don’t think will withstand the test of time.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.

Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys

2013-05-14T10:41:44-04:00

A special edition article that I recently wrote for the Daily Record column is entitled "Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys

In 1996, I stepped into a courtroom as an assistant public defender for the very first time. I had no idea what I was doing. I had only recently been hired by the Monroe County Public Defender’s Office after interning there for a few months. I had some training from the attorney whose caseload I was taking over and I even had a mentor assigned to me. Her name was Jill Paperno and she was an extremely experienced felony attorney. She had a wealth of information to offer me, but truth be told, at the time, it was incredibly overwhelming.

So, like most public defenders, I learned on my feet. And, I became a very good criminal defense attorney over time — with a lot of help from my more experienced colleagues at the office. Whenever I ran into an issue or had a question, I would pop my head into someone’s office and got the answer I was seeking in no time.

But I’ve always thought that there had to be a better way. If only I could have harnessed all the information and collective experience of my colleagues and my mentor in one place. If only I’d had a manual that walked me through the process of representing someone accused of a crime, from the initial intake process through every stage of representation. If only someone with decades of criminal defense experience would take the time to sit down and write a step-by-step guide for new and less experienced attorneys with an interest in criminal defense. Wouldn’t that be nice?

Well sure enough, just 16 years after I first set foot in a courtroom, my wish came true: the “how-to” guide that I had envisioned for young criminal defense attorneys was finally published. It’s called “Representing the Accused: A Practical Guide to Criminal Defense” and coincidentally enough, was written by my former Public Defender mentor, Jill Paperno.

This book is everything I had imagined — and more. It provides young lawyers with advice on just about every aspect of every stage of representing a criminal defendant. From file organization and effective client communication to subpoenaing information and trying a case, this book covers all the bases.

Paperno starts with practice management basics — things you don’t even realize are important when you first start practicing law, in large part because most law schools completely fail to teach lawyers about the ins and outs of managing a case from start to finish. But as you quickly learn when your first criminal defense file grows from a single sheet of paper to hundreds, a large part of effective case management revolves around effective organization of your files.

Paperno tackles this incredibly important, albeit not exactly enthralling topic, at the beginning of the book explaining: “Although a career in criminal defense may be one of the most exciting ones you can select, there are certain kinds of excitement you want to avoid — the excitement of being unable to find an important document or a particular file, for example. Thus, one of the keys to a successful practice is developing the less exciting skill of organization.” Then over the next 18 pages, she provides detailed tips for organizing files gleaned over her 25-year career in criminal defense, ranging from document organization and management to file management and storage, both paper and digital.

From there, she carefully and concisely walks young attorneys through every aspect of a criminal case. In Chapter 3, she offers an assortment of general practice tips, including her warning that as a criminal defense attorney, you should develop a thick skin and prepare to be disliked by just about anyone you encounter in a case, including opposing counsel, judges and witnesses.

Another important tip —sometimes strange things are true. Paperno explains, “Sometimes a client will tell you something that seems completely ridiculous. But before you discount it, if it supports the defense, investigate whether it might be true. Repeatedly over the years, I have been told things I thought were absurd, but learned that there was truth to the claim and eventually used the information to support a defense.”

She then provides a broad overview of the life of a criminal case in Chapter 4 and in subsequent chapters addresses each and every stage of a criminal case, starting with the initial interview of your client in Chapter 5. From there, each chapter focuses on a specific stage of the case, starting with your client’s arrest and arraignment, moving on to pre-trial procedures, including choosing a defense theory, investigating the case, drafting motions, conducting hearings, and finally, at the end of the book, she devotes one chapter to trying cases and another to sentencing.

From discovery and subpoenas to cross-examination techniques and sentencing considerations, Paperno provides invaluable tips and advice from the trenches throughout the book, including this gem in Chapter 9 — a sound piece of advice that clearly comes straight from the mouth of a lifelong criminal defense attorney: “The prosecutor will be an important source of information in your case. But should you rely exclusively on information provided by the prosecutor? The short answer: a definite and resounding NO.”

If I had to come up with one criticism of this book, it would be that it glosses over the importance of, and the effects of, technology as it relates to both the physical management of files and in the investigation of a criminal case. Although these issues aren’t ignored, they are given no more than a passing nod, something I suspect has more to do with the fact that this book was a long time in the making and technology has advanced incredibly rapidly over the last few years.

It is difficult to keep pace with rapidly changing technologies, whether it’s mining social media for evidence or storing and managing client files in the cloud. So the lack of focus on the effects of technology in this book is understandable, but hopefully will be addressed more thoroughly in the second edition of this book. Another minor critique — an index in a subsequent edition would also be a nice addition.

These two small points aside, I highly recommend this book. It provides much-needed information for young lawyers and should, in my opinion, be a part of every law school curriculum. Paperno’s book is an incredible resource and one that I wish had been available to me when I started practicing criminal law back in 1996. The bottom line: this book is a must-have for all newly graduated and aspiring criminal defense attorneys.

California lawyers can operate VLOs in the cloud

2013-05-07T17:40:54-04:00

This week's Daily Record column is entitled "California lawyers can operate VLOs in the cloud."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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California lawyers can operate VLOs in the cloud

With the rapid advancements in technology and a continued ailing economy, it’s no surprise that enterprising lawyers are regularly finding new ways to serve their clients more efficiently and affordably. Of course, innovating in the delivery of legal services can sometimes trigger ethical issues and as a result, lawyers will often query their state and local ethics committees about the efficacy of their ideas.

As a result, in recent years, a number of state and local bar associations have issued opinions on the ethical issues related to using cloud computing services to store confidential client data.

One of the most recent opinions was issued by the State Bar of California Standing Committee on Professional Responsibility and Conduct. I wrote about the proposed opinion last year, and the committee has now released the final opinion, Formal Opinion No. 2012-184.

At issue was this question: “May an attorney maintain a virtual law office practice (VLO) and still comply with her ethical obligations, if the communications with the client, and storage of and access to all information about the client’s matter, are all conducted solely through the internet using the secure computer servers of a third-party vendor (i.e., “cloud computing”)?”

At the outset, the committee addressed the cloud computing technology that the inquiring attorney intended to use in her VLO. The committee noted that because of the “the wholly outsourced Internet-based nature of our hypothetical VLO, special considerations are implicated, which require specific due diligence on the part of our VLO practitioner.”

Next the committee explained that although the inquiring attorney was not required to become a technology expert in order to ensure that client confidentiality was maintained when outsourcing the storage of client data to the cloud computing provider, she nevertheless had an obligation to take reasonable steps to understand — or to consult with someone who understood — the basic technology provided by her cloud vendor.

Of note, the committee determined that the inquiring attorney “should determine that the VLO vendor selected by her employs policies and procedures that at a minimum equal what attorney herself would do on her own to comply with her duty of confidentiality.”

Issues that an attorney must consider when assessing the vendor’s services include: 1) the vendor’s credentials, 2) the steps taken by the vendor to secure data, 3) whether the data stays within certain geographical boundaries, 4) the extent to which the attorney is able to supervise the vendor, and 5) the terms of service set forth in the contract with the vendor.

The committee also stressed that the attorney had a continuing duty to periodically reassess the services provided by the vendor. And, importantly, the committee adopted the majority position and concluded that client consent to store confidential client data in the cloud under the set-up described by the inquiring attorney was unnecessary — as long as the attorney appropriately exercised due diligence in vetting the cloud vendor.

Next, the committee turned to the attorney’s duty of competency when delivering legal services solely via an online channel. The committee explained that in order to meet her ethical obligations, the inquiring attorney must: 1) take steps to ensure that her intake system obtains necessary information from the potential client sufficient to allow the attorney to determine whether she is able to competently provide the legal services requested, 2) take steps to ensure that the client truly understands the legal concepts involved and the advice given, 3) take steps to ensure that the client is reasonably informed about case-related developments, including confirming that the client is receiving information posted to the online portal, 4) ensure that the client has access to technology which will permit use of the online portal and that the client fully understands how the technology works, 5) ensure that she complies with her ethical obligations regarding the scope of her representation as enumerated in Rules 3-1110 and 3-700, and 6) take reasonable steps to ensure that she appropriately supervises subordinate attorneys, and non-attorney employees or agents.

Also important was the committee’s final conclusion — that “(t)he Business and Professions Code and the Rules of Professional Conduct do not impose greater or different duties upon a VLO practitioner operating in the cloud than they do upon attorneys practicing in a traditional non-VLO.”

In other words, ethical obligations to clients remain the same, regardless of whether legal services are delivered via a brick and mortar office or a VLO; the medium does not change the ethics.

Oregon weighs in on lawyers mining social media

2013-04-30T13:50:51-04:00

This week's Daily Record column is entitled "Oregon weighs in on lawyers mining social media."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Oregon weighs in on lawyers mining social media

At this point, it’s indisputable: social media is here to stay. It is not the fad that many once believed it was. Instead, it is an Internet phenomenon that has transformed the ways that we connect, interact and communicate.

But for lawyers it’s more than that; the information shared on social media sites is a veritable treasure trove of evidence. For that reason, since 2010, ethics committees across the country have been called upon to opine on the ethics of lawyers mining social media sites for case-related information.

In most decisions, the pivotal issue is whether and how lawyers can ethically access non-public social media information. In other words, can lawyers access information that is only visible by individuals to whom the person being investigated has granted access? In most cases, the answer revolves around whether the person being investigated is represented by counsel and whether the attorney (or an agent) engaged in deception when attempting to access the data.

See, for example: New York State Bar Opinion No. 843 [9/10/10] (attorney or agent can look at a party’s protected profile as long as no deception was used to gain access to it); New York City Bar Association Formal Opinion 2010-2 (attorney or agent can ethically “friend” unrepresented party without disclosing true purpose, but even so it is better not to engage in “trickery” and instead be truthful or use formal discovery); Philadelphia Bar Association Opinion 2009-02 (attorney or agent cannot “friend” unrepresented party absent disclosure that it relates to pending lawsuit); San Diego County Bar Association Opinion 2011-2 (attorney or agent can never “friend” represented party even if the reason for doing so is disclosed); and New York County Lawyers Association Formal Opinion No. 743 (attorney or agent can monitor jurors’ use of social media, but only if there are no passive notifications of the monitoring. The attorney must tell court if s/he discovers improprieties and can’t use the discovery of improprieties to gain a tactical advantage).

In February, the Oregon State bar Ethics Committee joined the fray. In Op. 2013-189 (Feb 2013) (online: www.osbar.org/_docs/ethics/2013-189.pdf) the committee addressed the following questions: 1. May a lawyer review a person’s publicly available information on a social networking website? 2. May a lawyer, or an agent on behalf of the lawyer, request access to a person’s non-public information? 3. May a lawyer, or an agent on behalf of the lawyer, use a computer username or other alias that does not identify the lawyer when requesting permission from the account holder to view non-public information?

First, the committee concluded that an Oregon lawyer may access an unrepresented individual’s publicly available social media information since doing so is the equivalent of “reading a magazine article or purchasing a book written by an adversary.”

In considering the second question, the committee’s analysis revolved around whether the party was known to be represented by counsel. If the lawyer was unaware that the party was represented, making a “friend” request was permissible, as long as the lawyer responded honestly if the unrepresented party asked for additional information regarding the lawyer’s reason for making the request. However, no such request could be made of a person known to be represented by counsel without express permission from the party’s attorney.

Finally, the committee concluded that under Oregon’s “Covert Activity Exception” (Oregon Rules of Professional Conduct 8.4(b)) — which applies only when only when a lawyer believes in good faith believes there is a reasonable possibility that unlawful activity has occurred — a lawyer may “advise or supervise another’s deception to access a person’s nonpublic information on a social networking website.”

Oregon thus joins a number of other states in addressing this issue and clarifying the circumstances under which a lawyer may ethically mine social media for case-related information.

For those of you who happen to practice law in a jurisdiction that hasn’t yet addressed this issue, the best rule of thumb is to avoid deception when attempting to access non-public social media information. After all, honesty is always the best policy.

ABA on judges using social media during campaigns

2013-04-17T08:53:00-04:00

This week's Daily Record column is entitled "ABA on judges using social media during campaigns."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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ABA on judges using social media during campaigns

In my prior column, I discussed the first half of the American Bar Association’s Formal Opinion 462, which was issued in February. In it, the ABA addressed the ethical issues that arise when judges use social media in two distinct situations: when interacting with lawyers and others that might appear before them in court, and during judicial campaigns. In this column, I’ll address the latter half of the opinion, which focuses on the ethics of judges using social media during election campaigns.

At the outset, the committee reviewed the applicable sections of Canon 4 of the Model Code, which cover judges’ conduct during judicial campaigns. The committee noted that judges and judicial candidates must be free, or appear to be free from political influence and pressure. But, the committee acknowledged that the code does not address, nor does it restrict, judges or their campaigns from using a particular method of communication to reach voters.

As such, judicial campaigns have moved fully into the 21st century and oftentimes take advantage of the many benefits offered by using social media sites during election campaigns. The committee explained that “(i)n jurisdictions where judges are elected, (social media) has become a campaign tool to raise campaign funds and to provide information about the candidate … (and) may be established and maintained by campaign committees to obtain public statements of support for the judge’s campaign so long as these sites are not started or maintained by the judge or judicial candidate personally.”

However, the committee cautioned that social media must be used with care given the limitations imposed by Canon 4, which prohibit judges and judicial candidates from publicly endorsing or opposing another candidate for political office.

The committee explained that because interaction on some social media sites can result in a “passive” endorsement of another candidate, it is important to fully understand the implications of interacting thereon: “Judges should be aware that clicking such buttons on others’ political campaign ESM sites could be perceived as a violation of judicial ethics rules that prohibit judges from publicly endorsing or opposing another candidate for any public office. … On the other hand, it is unlikely to raise an ethics issue for a judge if someone ‘likes’ or becomes a ‘fan’ of the judge through the judge’s ESM political campaign site if the campaign is not required to accept or reject a request in order for a name to appear on the campaign’s page.”

The committee then set forth suggested guidelines and recommendations for online interaction, emphasizing the need to have a complete understanding of the workings of each social network in order to avoid the public appearance of impropriety: “Judges may privately express their views on judicial or other candidates for political office, but must take appropriate steps to ensure that their views do not become public. … This may require managing privacy settings on ESM sites by restricting the circle of those having access to the judge’s ESM page, limiting the ability of some connections to see others, limiting who can see the contact list, or blocking a connection altogether.”

So, the good news is that the ABA gave the green light to judges using social media sites and other Web-based forums to forward their election campaigns. But, importantly, the committee stressed the need to fully understand both the ethical implications of doing so and the mechanisms and privacy settings of each platform.

On the Boston Tragedy: And for what?

2013-04-15T18:52:37-04:00

(Photo credit: Wikipedia)

My heart goes out to the Boston victims and their loved ones. Such a horrible, pointless tragedy.

It was one of many on our soil in recent years--some were terrorism and others gun violence.

My heart aches. There have been too many senseless tragedies as of late. Too much sorrow. Our country is suffering from the weight of these collective losses--both due to the tremendous sadness and the gradual eradication of our liberties.

And for what?

Our digital communications are fair game and the government is collecting all of our digital data, without just cause or a warrant. (See "Who's Watching the NSA Watchers" - NYT).

We're undergoing near-strip searches at airports. We can't enter places where large public gatherings occur without having our bags and persons searched. Surveillance cameras are everywhere.

And for what?

With this latest tragedy--there allegedly were no "credible reports" of threats beforehand. And now CNN is reporting that surveillance videos have captured both the bombing itself and possibly the bomb-carrying backpacks as they were left behind. All of this after the fact.

And for what?

And now we'll seek vengeance--which we no doubt deserve. We'll catch the bastards that did this. But, what then--after we obtain "justice" and revenge?

Will we subsequently lose even more rights and constitutionally guaranteed liberties--all in the name of "security"? Will it be worth it? Will it do anything at all to prevent these horrible, heart wrenching national tragedies?

I certainly don't have the answers. But I, like my fellow citizens, am grieving today--and hugging my family closer tonight. Because that's really the only thing you can do on days like today.

Peace. Solidarity. Liberty. Hope.

And for what?

ABA opines on judges using social media

2013-04-01T13:13:56-04:00

This week's Daily Record column is entitled "ABA opines on judges using social media."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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ABA opines on judges using social media

The majority of jurisdictions that have addressed the issue of judges having social media connections have concluded that it is generally permissible for judges to become online “friends” with attorneys appearing before them, as long as the judges are careful to avoid the appearance of impropriety, avoid ex parte communications, and otherwise ensure compliance with applicable ethical rules. (See, 2009 Advisory Opinion 08-176 of the New York Advisory Committee on Judicial Ethics, the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline Opinion 2010-7, and the 2010 Ethics Committee of the Kentucky Judiciary Opinion JE-119).

However, a few contrary opinions have been issued: See, for example, California Judicial Ethics Committee Opinion Number 66 (judges may “friend” attorneys, but must “unfriend” those who appear before them and after doing so, must notify all parties of the “unfriending”); Florida Supreme Court Judicial Ethics Advisory Opinion 2009-20 (judges may join and participate on Facebook, but becoming “friends” with attorneys who may appear before them is impermissible); and Pierre Domville v. State of Florida, No. 4D12-556 (required judge, who was Facebook “friends” with the prosecutor in a case pending before the judge, to recuse himself.)

And now, the debate continues, with the issuance of Formal Opinion 462 by the American Bar Association in February. In it, the ABA addressed the ethical issues that arise when judges use social media in two distinct situations: when interacting with lawyers and others that might appear before them in court and during judicial campaigns.

In this article I’ll address the former situation and in my next article, I’ll discuss the ABA’s decision regarding the use of social media during judicial campaigns.

First, in assessing the issue of whether judges may use social media outside of judicial campaigns, the ABA’s Standing Committee on Ethics and Professional Responsibility wisely acknowledged that online interaction is simply an extension of offline interaction and thus judges’ use of social media (ESM) does more good than harm: “Social interactions of all kinds, including ESM, can be beneficial to judges to prevent them from being thought of as isolated or out of touch.”

Next, the committee discussed the need to evaluate the nature of judges’ social media connections and stressed the importance of context when doing so: “A judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court … In this regard, context is significant designation as an ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.”

The committee then described the process that judges must go through when evaluating the existence of known social media connections with parties appearing before them: “Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection. When a judge knows that a party, a witness, or a lawyer appearing before the judge has an ESM connection with the judge … (t)he judge should conduct the same analysis that must be made whenever matters before the court involve persons the judge knows or has a connection with professionally or personally.”

Importantly, the committee noted that judges do not have a proactive duty to research their social media contacts in order to determine if online relationships exist: “(N)othing requires a judge to search all of the judge’s ESM connections if a judge does not have specific knowledge of an ESM connection that rises to the level of an actual or perceived problematic relationship with any individual.”

All in all, this portion of the opinion was very well thought out and the committee did a good job of comprehending and analyzing the nature of social media relationships. The guidelines established are useful and will go far in aiding judges in understanding and evaluating their obligations to disclose social media connections with those who appear before them.

As for the use of social media by judges during judicial campaigns, you’ll have to wait until my next article. But sit tight. It’ll be worth it. I suspect you’ll find that article to be just as interesting and enlightening as this one.

A Mobile Practice Management Infographic and a Giveaway!

2013-03-27T13:47:00-04:00

First, the giveaway. Head on over to the MyCase blog to enter to win a free copy of the JuryPad app, compliments of the good folks at Bench&Bar, LLC. The JuryPad iPad app is designed to streamline the jury selection process by assisting lawyers during voir dire. Using this app you can create voir dire templates and then keep track of potential jurors’ demographics and voir dire responses using a customizable seating chart. Enter to win today!

Next, check out this great infographic that we created and published at the MyCase blog that is chock full of useful and interesting statistics about lawyers use of mobile law practice management tools. It offers lots of insight into how attorneys are communicating with their clients and managing their busy law practices while mobile and on the move.

New Hampshire on the ethics of lawyers using cloud computing

2013-03-26T16:40:34-04:00

This week's Daily Record column is entitled "New Hampshire on the ethics of lawyers using cloud computing."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

New Hampshire on the ethics of lawyers using cloud computing

Cloud computing — it’s an idea that has finally come of age. What was once an unfamiliar and suspect concept is now becoming commonplace as it proliferates the business world. Not surprisingly then, more and more lawyers are taking advantage of the many benefits that cloud computing offers, including cost savings, flexibility, and agility.

As lawyers’ use of cloud computing increases, so too do the number of ethics decisions about lawyers’ use of cloud computing, the most recent of which was issued in February. In Ethics Committee Advisory Opinion #2012-13/4, the New Hampshire Bar Association Board of Governors addressed the ethics of the use of cloud computing in the practice of law.

The committee agreed with and adopted the conclusion reached by other U.S. jurisdictions that have addressed this issue, explaining that “(t)he consensus among states is that a lawyer may use cloud computing consistent with his or her ethical obligations. To date, every state bar association that has issued an opinion on using cloud computing has said that it is permissible, as long as the lawyer takes reasonable steps to ensure that sensitive client information remains confidential.”

Given the consensus amongst bar ethics committees regarding cloud computing, the New Hampshire Committee’s conclusion wasn’t surprising. But the opinion was an interesting one, made notable by the committee’s adept observations about new technologies and the realities of law practice.

First, the committee acknowledged that lawyers have always outsourced the management of confidential data to third parties: “As noted in NH Bar Ethics Op. 2011-12/5, ‘Lawyers regularly engage companies to provide support services. Banks hold client funds; telephone companies carry privileged communications; credit card companies facilitate the payment of bills; computer consultants maintain necessary technology.’ When engaging a cloud computing provider or an intermediary who engages such a provider, the responsibility rests with the lawyer to ensure that the work is performed in a manner consistent with the lawyer’s professional duties.”

Next, the committee wisely noted that lawyers have never been required to ensure absolute security when it comes to confidential client data, and lawyers’ use of cloud computing services does not trigger a higher standard of care: “It bears repeating that a lawyer’s duty is to take reasonable steps to protect confidential client information, not to become an expert in information technology. When it comes to the use of cloud computing, the Rules of Professional Conduct do not impose a strict liability standard. As one ethics committee observed, ‘Such a guarantee is impossible, and a lawyer can no more guarantee against unauthorized access to electronic information than he can guarantee that a burglar will not break into his file room, or that someone will not illegally intercept his mail or steal a fax.’”

I commend the New Hampshire Bar for issuing this forward thinking and enlightened opinion. As always, it is heartening to see a thoughtful decision about the use of emerging technologies in the practice of law, rather than a knee-jerk, Luddite conclusion based on fear and a lack of understanding.

Fortunately, when it comes to cloud computing, the majority of U.S. ethics committees have issued the latter rather than the former. For a full run down of the ethics decisions issued about cloud computing, see the American Bar Association’s handy comparative chart, which can be found online here.

A look at Android resources for lawyers

2013-03-20T13:39:24-04:00

This week's Daily Record column is entitled "A look at Android resources for lawyers."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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A look at Android resources for lawyers

Lawyers love their mobile devices. In fact, as reported in the American Bar Association’s 2012 Legal Tech Survey, a whopping 89 percent of lawyers now use smart phones. And, not surprisingly, one of the most drastic increases in lawyers using mobile tools was the surge in the number of lawyers using tablets for law-related tasks. That percentage nearly doubled over the period of one year, increasing from 15 percent in 2011 to 33 percent in 2012.

But, much like the general population, lawyers’ smart phone and tablet choices are shifting over time. It used to be that most lawyers’ smart phone of choice was a BlackBerry, but no more. According to ABA Tech Survey, BlackBerry use by lawyers declined significantly over the past year, from 46 percent of smart phone users in 2011 to just 31 percent this year. And, most lawyers who made the switch from BlackBerry chose either the iPhone, which was used by 44 percent of respondents in 2012, or an Android phone, which was used by 16 percent.

But don’t discount Android devices — not yet. Android use is on the rise as reported by The New York Times just last week (“Android Devices Set to Overtake iPad in Market Share” March 13): “Shipments of tablets running the Google Android operating system will overtake the iPad this year for the first time, the research firm IDC has predicted … IPad shipments are expected to account for 46 percent of the tablet market in 2013, down from 51 percent last year, the research company said. The market share for devices running Android is expected to grow to 49 percent this year from 42 percent last year.”

So undoubtedly, the number of lawyers using Android devices will increase over the next year. But what’s an Android-toting lawyer to do in a world still dominated by iOS devices and where most information for lawyers about smart phones and tablets presumes the use of Apple devices?

Well have no fear, Android fans, there are quite a few resources available designed to help lawyers navigate the less charted Android waters.

First, there are a few helpful blogs. Let’s start with a legal blog devoted to lawyers who use Android devices: The Droid Lawyer (thedroidlawyer.com). At the Droid Lawyer, Oklahoma attorney Jeffrey Taylor regularly posts about Android apps of interest to attorneys and also provides tips and tricks for making the most of your Android devices. His blog is a must read for any lawyer who owns an Android tablet or smart phone.

Another very helpful blog is Future Lawyer (futurelawyer.typepad.com), which is published by Florida attorney and avid Android user Rick Georges. Although the blog’s primary focus is legal technology, Rick regularly discusses the use of Android devices in a law practice.

Finally, Law Technology Today, a blog run by the American Bar Association’s Law Practice Management Section, also discusses, among other legal technology topics, the use of Android devices by law firms, so it’s worth checking in to read the latest Android tips there as well (www.lawtechnologytoday.org/tag/android/).

And last but not least, if blogs don’t offer you enough Android-related information, there’s always the recently published book, “Android Apps in One Hour For Lawyers,” written by attorney Daniel J. Siegel (ABA 2013). This book covers a vast array of Android apps designed to help lawyers practice law using their Android devices.

However, some of you might not be ready to run out and buy the book just yet. If so, never fear. In the near future, I plan to write an article covering some of the more popular and useful Android apps for lawyers, so stay tuned!

Can lawyers ethically blog about their cases?

2013-03-12T15:17:56-04:00

This week's Daily Record column is entitled "Can lawyers ethically blog about their cases?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Can lawyers ethically blog about their cases?

When blogging first became popular years ago, lawyers were often reluctant to participate due to ethical concerns. Even today, that hesitancy remains despite the large scale adoption of blogging by lawyers and non-lawyers alike.

Hopefully, a recent Virginia decision, Horace Frazier Hunter v. Record No. 121472, handed down in February of this year, will quell some of the remaining concerns. According to the decision issued by the Virginia Supreme Court, not only can Virginia lawyers ethically blog about their cases, they can even list the names of their clients when doing so, as long as their blog includes an appropriate disclaimer.

In this case, the Virginia State Bar had determined that criminal defense attorney Horace Frazier Hunter had violated client confidences by discussing information about closed cases, including discussing favorable case outcomes and including the client’s name when doing so. Hunter appealed the decision, which ultimately reached the Virginia Supreme Court.

Among the issues considered by the court were whether his blog posts were considered to be commercial speech and whether he could ethically discuss public information about his clients without their consent.

First, the court addressed the issue of whether Hunter’s blog posts constituted commercial speech and thus were subject to regulation by the Virginia State Bar. The court concluded that the posts were commercial speech because, among other things: 1) Hunter admitted that his motivation for posting was, in part, economic; 2) the posts served as an advertisement since they highlighted favorable results obtained on behalf of clients; 3) Hunter referred to his lawyering skills in the vast majority of his posts; 4) the blog was part of his law firm’s website rather than a freestanding blog; and 5) the blog was not interactive since it did not permit comments.

Next, the court moved on to the issue of whether Hunter had violated client confidentiality by discussing the outcomes of closed cases and including client’s names in the blog posts. The court concluded that First Amendment protections applied since the cases discussed on the blog were closed: “It is settled that attorney speech about public information from cases is protected by the First Amendment, but it may be regulated if it poses a substantial likelihood of materially prejudicing a pending case.”

“The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession,” the court explained.

“Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

However, although the court held that Hunter’s posts were protected by the First Amendment, it also concluded that the bar could regulate the speech and require disclaimers, since the speech had the potential to be misleading. The court reversed and remanded the case for additional considerations regarding the issue of appropriate disclaimers.

All in all, I think this was a good decision, with one exception. I disagree with the court’s assertion that the failure to allow commenting on blog posts is evidence that a blog is intended for commercial purposes. That is simply not the case.

Permitting comments on blogs has fallen out of favor among many bloggers, myself included, due to the massive amounts of spam comments that are posted. So I, like many other bloggers, have simply decided to no longer permit comments in order to avoid spending unnecessary amounts of time moderating comments from spambots, marketers and self-promoters.

But, aside from that one area of disagreement, this was, overall, a good decision. My hope is that decisions like this one will have the effect of encouraging lawyers to learn more about blogging and other opportunities to interact online.

Another NY decision on social media evidence discovery

2013-03-01T10:22:08-05:00

This week's Daily Record column is entitled "Another NY decision on social media evidence discovery."

A pdf of the article can be found and my past Daily Record articles can be accessed here.

*****

Another NY decision on social media evidence discovery

Social media evidence is a hot topic these days, as lawyers are now realizing that there is a wealth of information available online that can be used to prosecute or defend legal claims. As attorneys increasingly seek to obtain access to the social media accounts of litigants, more cases are arising which address the discoverability of this type of evidence.

New York courts are no exception to this trend, and in January, yet another court handed down a decision which addressed a motion to compel the production of social media information.

In Fawcett v. Altieri, 2013 N.Y. Slip Op. 23010, the Richmond County Supreme Court addressed this issue of the discoverability of social media records. In this case, the mother of an infant plaintiff brought a personal injury lawsuit on her son’s behalf against a high school and the parents of another student.

The claims arose from an incident where her son was allegedly injured during an altercation with another student that occurred on school grounds. During the discovery phase of litigation, the defendants brought a motion to compel the production of the infant plaintiff’s social media data.

Prior to addressing the facts of the case on appeal, the court first reviewed the relevant case law and then set forth the appropriate standard: “A survey of cases dealing with the production of social media accounts, in both the criminal and civil contexts, reveal a two prong analysis before courts compel the production of the contents of social media accounts.

This inquiry requires a determination by the court as to whether the content contained on/in a social media account is “material and necessary;” and then a balancing test as to whether the production of this content would result in a violation of the account holder’s privacy rights.”

Next, the court differentiated between public and private social media postings, and elaborated on the necessary showing that a party seeking to compel the records must make: “Information posted in open on social media accounts are freely discoverable and do not require court orders to disclose them … In order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand.”

Importantly, the court emphasized that overly broad requests were improper, in part because of the nature of the information often shared via social media: “The courts should not accommodate blanket searches for any kind of information or photos to impeach a person’s character, which may be embarrassing, but are irrelevant to the facts of the case at hand.”

Applying those standards to the case at hand, the court concluded that the defendants had failed to make the necessary showing. “This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.” the court explained. As such, the court denied the motion to compel, since it was overly broad.

This case, like other recent New York cases, curtails unlimited access to all forms of social media data and treats this type of evidence no differently than other more traditional types of evidence, such as letters, diaries or recordings. Fishing expeditions should be discouraged and all motions to compel information shared privately, whether on social media or otherwise, should have a credible basis.

This decision, which upholds that standard, is further proof that New York’s courts are doing a good job of applying traditional evidentiary concepts to the realities of life in the 21st century.

Florida Bar on the ethics of cloud computing

2013-02-19T10:06:54-05:00

This week's Daily Record column is entitled "Florida Bar on the ethics of cloud computing."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

By now, cloud computing should be a familiar concept, even if you don’t yet use it in your law practice. It has been around for years now and as a result, law firms are increasingly taking advantage of the benefits offered by this flexible, affordable technology.

For that reason, bar associations across the United States are being asked to opine on the ethics of lawyers using cloud computing in their law practices, with the most recent one being the Professional Ethics Committee of the Florida Bar, which issued Proposed Advisory Opinion 12-3 in January of this year.

At the outset of this opinion, the committee examined the concept of cloud computing, settling on the following definition: “Cloud computing” is defined as “Internet-based computing in which large groups of remote servers are networked so as to allow sharing of data-processing tasks, centralized data storage, and online access to computer services or resources.”

It then explained that the primary issue presented by the use of cloud computing by lawyers is confidentiality: “The main concern regarding cloud computing relates to confidentiality. Lawyers have an obligation to maintain as confidential all information that relates to a client’s representation, regardless of the source. Rule 4-1.6, Rules Regulating The Florida Bar.”

Importantly, as part of its analysis of this issue, the committee noted that Florida attorneys are required to stay abreast of changes in technology as part of their ethical obligations: “(T)his committee has previously opined that lawyers have an obligation to remain current not only in developments in the law, but also developments in technology that affect the practice of law. Florida Ethics Opinion 10-2.” In other words, ignorance of technology is no excuse and lawyers must ensure that they have an understanding of the technologies available to them, even if they choose not to use them in their practice.

Next, the committee turned to the issue at hand, noting that a number of ethics opinions have been issued in other jurisdictions which address the issue of whether lawyers can use cloud computing in their practices and that every ethics committee concluded that doing so was permissible. The opinions reviewed included: Alabama Ethics Opinion 40 2010-02, Arizona Ethics Opinion 09-04 (2009), Iowa Ethics Opinion 11-01 (2011), Nevada Formal Ethics Opinion 33 (2006), New York State Bar Ethics Opinion 842 (2010), and 57 Pennsylvania Ethics Opinion 2011-200.

After reviewing all of the opinions, the committee concluded that Florida attorneys could ethically use cloud computing in their law practices: “In summary, lawyers may use cloud computing if they take reasonable precautions to ensure that confidentiality of client information is maintained. The lawyer should research the service provider to be used, should ensure that the service provider maintains adequate security, should ensure that the lawyer has adequate access to the information stored remotely, and should consider backing up the data elsewhere as a precaution.”

And last, but not least, the committee cautioned that when dealing with particularly sensitive information, lawyers should consider whether housing said data in the cloud would be appropriate even where all of the above conditions were met.

Thus, Florida, one of the more conservative bars in the United States, joins other jurisdictions by giving the green light to the use of cloud computing by lawyers. The Florida bar’s acknowledgement of cloud computing as a viable option for Florida attorneys simply offers further confirmation, to the extent that it’s even needed at this point, that cloud computing is a secure, reliable technology that can safely be used by law firms.

What’s coming in legal innovation in 2013

2013-02-12T10:26:03-05:00

This week's Daily Record column is entitled "What’s coming in legal innovation in 2013."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

What’s coming in legal innovation in 2013

At the end of January, I attended LegalTech 2013, a legal technology conference sponsored every year by American Lawyer Media. This conference is attended by thousands of legal and IT professionals seeking to learn about the latest legal technologies and innovations. If nothing else, this conference is oftentimes a convergence of some of the most innovative and influential people and companies in the legal technology space, and this year was no exception.

But, at this year’s conference, I discovered that most of the innovative legal thinking could be found on the sidelines rather than on the exhibit floor — which was largely dominated by companies offering ediscovery services.

Throughout the conference, I met with the founders of a number of legal technology companies and had the opportunity to learn about their products. As I did so, a trend emerged: many of the most innovative legal technology concepts revolved around using online platforms to provide lawyers with economical tools to enhance and simplify their practices. Among the most interesting were LexisNexis’ MedMal Navigator, Picture it Settled, LawToolBox, and LegalShare.

As I mentioned in an earlier article, MedMal Navigator offers medical malpractice attorneys uniquely tailored access to Lexis’ vast amounts of content and includes built-in assisted legal research dashboard which includes an interactive Q & A tool that walks lawyers through the process of analyzing the applicable standard of care, aids in assessing case values, and helps lawyers locate similar verdicts and settlements.

Contrary to my earlier understanding, you do not have to be a LexisNexis subscriber to use MedMal Navigator and can even choose to utilize and pay for only select “pods” of information, such as the medical experts pod, the case valuation pod, or the standard of care assessment pod. This payment scheme makes this tool all the more accessible and appealing and I believe that this innovative offering has the potential to be a very valuable tool to medical malpractice litigators.

Also of interest to litigators is Picture it Settled, a Web-based application with a mobile app offering as well that uses predictive analytics including vast amounts of settlement data to assist lawyers during negotiations. Using this tool during negotiations, lawyers can, based on real-time input of offers and counter-offers, estimate when the opposing party will settle and for how much.

Another tool that litigators will no doubt find useful is LawTool Box. This Web-based tool is a rule-based deadline manager. It includes the court rules and deadlines of different jurisdictions and then integrates them into a firm’s calendar for a given case using Outlook and other calendaring systems. And, if a due date for a particular task changes, all subsequent due dates are revised accordingly.

Finally, there’s LegalShare, an interesting online legal document marketplace. Legalshare is an online repository of legal documents, including pleadings and memos, contributed by other lawyers and available for purchase on a per document basis. Lawyers can both buy and sell documents. This online tool is ideal for solo and small firm lawyers who don’t have access to the vast document databases available to large firm lawyers and who can’t afford to pay for Westlaw or LexisNexis’ legal research services that include access to pleadings and legal forms. So, for solo lawyers who are practicing law in a depressed economy, the ability to purchase relevant documents at low cost gives them an affordable head start when drafting their own pleadings and memos.

So, as I learned about these different online tools for lawyers, I realized that innovation in the legal field is alive and well. The Internet, mobile and cloud computing facilitate the creative delivery of affordable and very useful tools for solos, small firms and litigators. That’s why it’s so important for lawyers to make an effort to stay on top of emerging technology trends and new products. Then figure out which ones could improve and streamline your law practice and put them to use for you.

LegalTech 2013: Old habits die hard, but die they do

2013-02-06T09:29:43-05:00

This week's Daily Record column is entitled "LegalTech 2013: Old habits die hard, but die they do."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

LegalTech 2013: Old habits die hard, but die they do

It’s February again. And if you’re a regular reader of mine, you know what that means: it’s once again time for my annual article on LegalTech.

If you’re not familiar with this conference, which was held in Manhattan last week, it’s a legal technology conference sponsored every year by American Lawyer Media. Each year, it’s attended by thousands of legal and IT professionals seeking to learn about the latest legal technologies and innovations. Attendees are primarily from large law firms, ranging from attorneys to IT staff, although firms of all sizes are represented.

LegalTech 2013 included multiple educational tracks, focusing on a variety of legal technology issues, with e-discovery dominating even more so than usual. Aside from e-discovery, other tracks included knowledge management, information governance, records management, project management, practice management, risk management, and big data–lots and lots of big data. And, interestingly, there were no tracks devoted to mobile technology or cloud computing, although there were a few individual sessions which addressed these topics.

The minimal focus on mobile and cloud computing was in glaring contrast to last year’s conference, where these topics were covered extensively. My colleagues and I discussed this curious shift at length, eventually concluding that the apparent lack of interest was likely due to the ubiquity of these technologies and a reluctant acceptance by the legal field that mobile and cloud computing is here to stay.

This hypothesis is supported by the fact that nearly every e-discovery software company that exhibited at LegalTech offered a cloud computing option. Further support comes from Iron Mountain’s new offering. Iron Mountain, long-time provider of legal document and file storage, now provides law firms with digitized versions of their documents which are then stored in the cloud and are thus accessible at anytime from anywhere via computers or mobile devices.

More evidence includes the fact that both Thomson Reuters and Lexis now offer cloud-based law practice management platforms, with Lexis debuting their solution, Firm Manager, at last year’s LegalTech, and Thomson announcing their new product, Firm Central, this year. That means that both companies have joined the ranks of veteran cloud-based law practice management providers MyCase (the company for which I work), Clio and Rocket Matter, among others.

Also relevant is that the “bring your own device” (BYOD) phenomenon is now a reluctantly accepted reality for most large firm IT departments. Instead of prohibiting lawyers from using iDevices and Android devices, most IT departments are, at long last, allowing lawyers to use their mobile devices of choice. This is because many lawyers were already using them without their IT department’s blessing, thus presenting obvious security risks.

So, these factors — cloud platforms as the default and the BYOD phenomenon — suggest that the inevitability of cloud and mobile computing is now a given since fighting the tidal wave of technological change is no longer an option. These technologies are now accepted as viable alternatives to more traditional IT setups and are no longer viewed as the “new kid on the block.” For that reason, they weren’t mentioned as frequently at LegalTech because they simply merit less discussion than in year’s past.

In other words, old habits die hard, but die they do — which was the topic of the Keynote given on Day 3 of LegalTech: “The Power of a Crisis: Remaking the Habits of Lawyers.” The keynote was given by Charles Duhigg, an investigative reporter for The New York Times and author of the book “The Power of Habit: Why We Do What We Do in Life and Business.”

Duhigg’s premise was that the science of habit formation could help the legal industry to change its ways and thus better serve clients. First, he discussed the benefits of examining old habits and chipping away at the building blocks upon which they are based. He explained that the “habit loop” consists of three parts: the cue, the routine and the reward.

The cue is the event that sets the loop in motion. So, for example, a stressful event that causes you to crave a cigarette. The routine is the act of smoking. And the reward is the rush you get from the nicotine. According to Duhigg, the key to breaking destructive or counterproductive habit loops is to become aware of the cues and then alter the rewards.

He then applied this theory to the legal profession, explaining that historically, lawyers have been unwilling to change the ways that legal services are delivered. However, in order for lawyers to continue to thrive, they must break the habit loops to which they’ve become accustomed but that no longer work in the midst of an unprecedented and rapidly changing legal landscape. And, to break those habits, the cues and rewards for doing business as usual will have to change. He then assured us that it could be done, but didn’t offer much by way of example.

As I thought about the issues Duhigg raised in his keynote, I realized that whether the legal field likes it or not, it’s being forced to break its habit loops. This is because, in recent years, rapid technological change, increased competition from non-traditional sources (such as do-it-yourself websites like Legal Zoom and Rocket Lawyer), and the ailing economy have drastically affected the profitability of doing business as usual. In other words, both the cues (the demand for traditional legal representation) and the rewards (profits) for delivering legal services as we’ve always done are decreasing.

So, because the cues and rewards are changing due to factors outside the control of our profession, larger law firms will be forced to change the way that legal services are delivered, or pay the price, as Dewey LeBoeuf did.

In order to thrive in this new world economy, innovative lawyers will necessarily have to reimagine the delivery of legal services in order to thrive. These forward-thinking lawyers will meet the changing demand for affordable, responsive legal representation, all the while providing legal services in more efficient, cost effective ways. Those lawyers who meet this challenge head on and break the habit loops that no longer serve our profession will ultimately provide better representation to their clients and, as an added bonus, avoid extinction in the process.

Old habits die hard. But I’m confident that our profession can and will change. In fact, it’s already in the process of doing so — and for that reason, I can’t wait to see what the future will bring.