Sui Generis-a New York Law Blog

Speaking Engagement--NYC 1/28

2009-12-29T16:11:46-05:00

I'm pleased to announce that I'll be speaking at the New York State Bar Association's Annual Meeting on January 28th, 2010 in New York City. I've been asked to speak about cloud computing at the "Hot Topics in Legal Technology" track of the conference.

I'm particularly excited about this program since I just recently signed a publishing contract for a book about lawyers and cloud computing, which I expect will be published at the end of 2010.

You can learn more about the program here and you can register for the program here. Hope to see you there!

Focus on Your Online Presence in 2010

2009-12-29T10:34:46-05:00

This week's Daily Record column is entitled "Focus on Your Online Presence in 2010."

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

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Focus on Your Online Presence in 2010

People don’t believe what you tell them. They rarely believe what you show them. They often believe what their friends tell them. They always believe what they tell themselves.

— Seth Godin

You’ve been reading my column for a while, haven’t you? So by now we must be friends, buddies, pals, right?

Right.

So listen to me my friends, my fellow lawyers, my technologically-challenged colleagues: 2010 is the year you must focus on your online presence.

Believe me when I tell you the Internet is where therest of the world spends much of its time. If your business is not there, much like Bender, a character from one of my favorite movies, “The Breakfast Club,” it may as well not exist:

Andrew: You know, Bender ...you don’t even count. I mean if you disappeared forever it wouldn’t make any difference. You may as well not even exist at this school.

I urge you: Do not let your firm suffer the same fate as Bender. I’ve been trying to convince you of this fact for years now and, as Seth Godin aptly notes in the opening quotation here, telling you your online presence is of paramount importance simply
hasn’t been enough. It seems I’ll have to prove it to you by way of example, show you that a strong online presence will pay off in the long run.

Let’s examine an effective online presence and its benefits,shall we? To that end, I offer you my story.

In 2003, I had been practicing law for more than eight years. At the time I was an associate with a Rochester law firm. I loved the firm, but nevertheless was unhappy. I wasn’t sure why I was unhappy, but I knew that I was. I felt as if a part of me was dying and I desperately needed a change. So, I took a self imposed hia-
tus from law.

I returned to law in 2005, opening up shop as a contract attorney and started my first blog, “Sui Generis.”

From there, things began to fall into place. As I blogged, business found me. Lawyers hired me to do work for them and, at the same time, writing and speaking opportunities were offered to me based in large part on the body of work I’d created through my blog.

Those opportunities arose because my online presence —which includes blogs, Web sites and active participation on a number of social media platforms —is very strong.

How strong? My blog is the first result on Google when you search for Rochester, NY lawyer; Rochester, New York criminal lawyer; New York law blog; Rochester, NY technology lawyer; Rochester, New York technology lawyer; Rochester, New York Internet lawyer ; Rochester, NY Internet lawyer; Rochester, NY online lawyer; Rochester; New York online lawyer; Rochester, NY cloud computing lawyer; Rochester,
New York cloud computing lawyer; or Rochester, New York lawyer.

My blog is the third result for this search: Rochester,New York attorney.

For the search Rochester, NY social media lawyer, I am mentioned in nine out of 10 of the Web sites listed on the first page of the results.

Because of my online presence and my high standingin Google rankings, I regularly receive inquiries via e-mail and phone from people seeking an attorney.

The strength of my online presence and the body of work contained in my various law blogs has resulted in many other opportunities, the likes of which otherwise never would have been available to me.

Since I first started blogging in 2005, I have been quoted in the print media nearly 20 times. I have spoken about the intersection of law and technology 14 times since the spring of 2007 and I have four speaking engagements booked this spring at conferences sponsored by the American Bar Association and the New York State Bar Association, among others.

Early on, I began to write this column for The Daily Record and was offered the opportunity to co-author the West Thomson treatise Criminal Law in New York.

Currently I am in the process of writing a book about social media for lawyers, which will be published by the ABA in the spring. I also recently signed a publishing contract to write another book, which will focus on cloud computing for lawyers.

The strength of my online presence, based in large part on the useful content I create and share online, resulted in all of those opportunities. Imagine what an effective online presence can do for you and your law firm.

Shouldn’t 2010 be the year you stop wondering and find out?

Happy Holidays!

2009-12-24T14:37:33-05:00

Wishing you and yours Happy Holidays!

Is 2010 the year lawyers enter the 21st Century?

2009-12-21T13:16:22-05:00

This week's Daily Record column is entitled "Is 2010 the year lawyers enter the 21st Century?"

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

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Is 2010 the year lawyers enter the 21st Century?

We’re probably about five years into a 30-year cycle of trans- formation. … But there is simply no doubt that 25 years from now, when people reflect on the seminal changes of the early days of the century we are about to begin, the impact of networked com- puting will stand in relief.

— Lou Gerstner

Many members of the legal profession simply are ignoring Internet technologies and writing them off as a fad. In doing so, they are refusing to acknowledge a fundamental cultural shift has occurred.

Those lawyers, quite simply, are living in another century. Their failure to acknowledge and learn about the radical changes taking place ultimately will lead to their downfall, as more tech-savvy lawyers take advantage of the cost-effective and time-saving opportunities the new medium provides.

Two of the most important Internet technologies affecting the legal profession in 2010 and beyond are social media or, as I like to call it, “intermedia,” and cloud computing. All lawyers with an interest in keeping their businesses afloat in the coming year would be wise to learn about and selectively use those two tech- nologies in their law practice.

In 2009, “social media” became a household term. Social networking sites such as Facebook, LinkedIn and Twitter saw an explosive growth as more and more businesses realized the connection between networking online and business profits.

Not surprisingly, the legal field was not immune from the phenomenon. A good percentage of lawyers in the past year attempted to engage in intermedia in one form or another for the first time, as evidenced by a recent study of online networking in the profession.

The 2009 Networks for Counsel Study —available online here —was conducted by Leader Networks on behalf of LexisNexis Martindale Hubbell. Some key findings include:

Networking remains critical to the legal industry, yet resource constraints make it more difficult than ever.
The use of social networking sites has grown significantly over the past year, with three quarters of all counsel now reporting they are members of a social or professional network.
While some counsel take a “wait and see” attitude about the strategic value of the networks they’ve already joined, there is general belief online networking will change the business and practice of law over the next five years.

Like online networking, cloud computing —where applications, software and data are hosted by the cloud computing provider, offsite —also is gaining greater acceptance in the legal field. According to the Am Law Tech Survey 2009, 84 percent of responding law firms now use SaaS, a form of cloud computing, in some capacity. Most are using it for e-discovery or ancillary functions such as human resources, with only 7 percent use it to manage confidential client data.

As the concept becomes more familiar, however, more firms will use cloud computing for services such as document management or practice management. I predict those numbers will increase exponentially over the next few years as cloud computing providers adapt their products to respond to attorneys’ concerns about the confidentiality and security of their data.

The bottom line is this: Intermedia and cloud computing, once emerging technologies, are being accepted slowly by our profession. Lawyers who choose to ignore them, take heed: You do so at your own risk.

The writing is on the wall; the choice is yours. Learn about emerging technologies and adapt, or your profits will slowly, but surely, disappear.

We’re nearing the end of the first decade of the 21st century. Whenever you’re ready, you’re welcome to join the rest of us in this century —the sooner, the better. We’ll be waiting.

The Evolution of Intermedia

2009-12-15T16:47:04-05:00

This week's Daily Record column is entitled "The evolution of intermedia."

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

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For many lawyers, one of the greatest deterrents to interacting online is a mistaken impression that online networking is a purely “social” endeavor.

After all, as a profession, lawyers tend to take themselves very seriously, and socializing most certainly is a waste of their time —especially since attorneys tend to carefully track and bill each and every moment of the work day.

Our profession’s misapprehension regarding the interactions forming the very basis of Web 2.0 platforms is understandable. After all, online interaction is referred to commonly as “social media,” a name that implies the vast majority of online interaction consists of gossip and inane conversation. That, simply, is an inaccurate characterization. Online interaction runs the gamut, of course, but an increasingly large segment of interaction involves business and professional endeavors.

It is for that reason so many influential people in the online space are increasingly expressing displeasure with the term “social media,” a limiting, simplistic and inaccurate term. Web 2.0 platforms with built-in interactivity such as Facebook, Twitter, YouTube and LinkedIn are being used more widely to conduct business, in promotional efforts, advertising and networking as well as hiring.

Accordingly, “social media” is much too shallow of a term. It fails to encompass the depth of online professional interaction and the sheer number of business transactions that occur on the “social” Web on a daily basis, as evidenced by recent
statistics regarding the increasing use of “social media” platforms by companies and consumers:

Social Media has overtaken porn as the top ranked activity on the Web.
80 percent of companies are using LinkedIn as a primary tool to find employees.
25 percent of search results for the world’s top 20 largest brands are links to user-generated content.
More than 1.5 million pieces of content (Web links, news stories, blog posts, notes, photos, etc.) are shared on Facebook daily.
There are more than 200 million blogs online.
34 percent of bloggers post opinions about products and brands.
78 percent of consumers trust peer recommendations.
Only 14 percent of consumers trust advertisements.

Sources for those statistics can be found at the Socialnomics blog.

The statistics support the premise of the following quote, one of my favorites, from a February article published by Business Week "Debunking Six Social Media Myths”:

For companies, resistance to social media is futile. Millions of people are creating content for the social Web. Your competitors are already there. Your customers have been there for a long time. If your business isn’t putting itself out there, it ought to be.

Of course, as I’ve already pointed out, lawyers continue to resist online engagement, in part because the perceived “social” aspect of online interaction seems silly and superfluous. For that reason, I propose that in the future the term “intermedia” be used, instead of “social media.” It is a more serious, palatable term — one that lawyers and other professionals resistant to emerging technologies more likely would accept.

Intermedia also better encompasses the depth and breadth of online interactions. It is another word for “interactive media,” which I view as the next —or, perhaps, current —stage of the Internet. Intermedia is where the world interacts, interconnects, interfaces, interweaves, intervenes and intersects. It is intergenerational, the intermediate, or next step, between what was and what will be. “Inter” means “put to rest” —and intermedia effectively has “put to rest” or
ended old school, one-way broadcast media.

The language used to describe new concepts is important because it shapes our dialogue and perceptions. The terms used to discuss the Internet and online interactions should evolve as quickly as the medium itself. Otherwise, the adoption of emerging technologies will be delayed —especially in fields like the legal profession, which traditionally are skeptical and suspicious of new technologies and therefore are slow to adapt.

The terminology used to discuss the phenomenon of online interaction must change, and quickly. The use of “intermedia” or a similar term in place of “social media” is the first, and most important step, in that evolution.

An open letter to future lawyers

2009-12-07T13:42:48-05:00

This week's Daily Record column is entitled "An open letter to future lawyers."

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

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I wanted to begin this week’s column by sharing a poem I wrote while in law school, an open letter to future lawyers:

I entered law school fearful and proud —yet knowing who I was
But the metamorphosis rudely and abruptly began.
As the classes … days … weeks passed, case after case
I became “Ms. Black” —someone I didn’t know.
Loneliness and insecurity became mine
And I reveled in my solitude.
All confidence I had in myself was lost
In some dusty old book in the corner of the library.
Perhaps if I sheperdize that book,
I might discover what has become of my self.
If it’s been overruled,
I’d like to know the new holding.
It seems I’ve gained knowledge
But lost my self.
I wonder how that would balance out
On the sacred scales of justice?

To the future lawyers of the world, know that those of us admitted to the bar once were where you are. Most of us still remember. We understand.

But we also know more than you. We’ve been doing this a lot longer than you have. Most of us know what we’re talking about.

So, rule 1: Respect your elders. We’ve got a lot to teach you. And, you’ve got a lot to learn.

Rule 2 is very important: You can’t have everything. You think you can, but you can’t. You’re naïve to think this, but it’s not your fault. You were spoon fed this nonsense as you were growing up, and the people who told you that you could have it all were cruel and negligent for doing so.

Life is all about compromise. Master that skill and you’ve got it made.

Rule 3 is very similar: Palsgraf is a life lesson. Life is unpredictable. Stuff happens. You can’t always control it or predict it.

Get used to it. That’s life. The skill is knowing how to deal with the unexpected-don’t let it throw you off track.

Rule 4: Perspective is everything. When life happens, roll with it as best you can. Alter your perspective and you alter your reality. Master this skill. It will take you far.

Rule 5 is simple: Success is in the eye of the beholder. Don’t let anyone else define success for you —not your parents, professors, career counselors or classmates. Only you know what success is for you. Delegate that determination at the risk of your happiness, stability and sanity.

Rule 6 also is an important one, so pay attention: Defy everyone’s expectations —don’t be an asshole. People think lawyers are jerks for a reason. Don’t live up to their expectations. Treat your clients, your colleagues, your staff and your opposition with respect.

Don’t be sleazy and underhanded. Don’t be arrogant. Avoid being pompous. Trust me, if you ignore this advice, it will come back to haunt you in the long run.

Rule 7:The law is not your mistress. Don’t buy into that idiocy. Your law degreesimply i s a means to an end. It’s a way to pay the bills and feed your family. Hopefully, it’s a fulfilling process for you. If not, then you’re not using your law degree in the right way.

Remember, rule 3 — stuff happens. If you don’t like the career path you’re on and it’s interfering with your life, reassess your path and alter your course.

Finally, rule 8: Do not let the law engulf you. You should not emerge from law school as a bruised and broken shell of the person you once were. Don’t let them do that to you. Retain your true essence. Never forget why you chose this path.

Always, always remember who you are. Never lose sight of you.

Print Media Must Evolve

2009-11-30T12:56:29-05:00

This week's Daily Record column is entitled "Print Media Must Evolve."

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

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Print Media Must Evolve

One of my favorite social media gurus is Gary Vaynerchuk. He really knows his stuff, and presents information in a format —video —that is universally appealing. Vaynerchuk has a personality that is larger than life and his enthusiasm for his passions —wine and social media —is downright contagious.

I’ve been a hard-core fan since I discovered his vlog —video blog —a little over a year ago. In my opinion, the man is brilliant. I was thrilled when he released his first book, “Crush It,” now a New York Times best seller, and had every intention of buying it. I truly wanted to buy it, but I held off because I knew I would never actually read it.

Not because I didn’t want to read it, but because lately I’ve had a difficult time reading “paper” books.

Before you shake your head in befuddlement and begin to mutter about the negative effects of technology, allow me to explain. When the Amazon Kindle was first released in November 2007, the idea of reading a book on some sort of newfangled electronic device seemed unappealing and unnatural. I dismissed the Kindle as some sort of fad that never would catch on.

Then, I bought an iPhone. My life has never been the same. I kid you not: The iPhone changed the way I look at, and interact with, the world. It’s hard to remember how I functioned without my iPhone tucked snugly in my purse, within arm’s reach at all times.

About six months ago, I discovered the Kindle app on my iPhone. I downloaded it, along with my first eBook. It wasn’t the ideal platform for reading a book —an iPhone screen is substantially smaller than a Kindle screen —but it wasn’t as horrible as I’d thought it would be. In fact, it grew on me.

After a while I preferred the format over that of a regular book. It was portable, easily navigable and the electronic books were cheaper than the paper versions.

Fast forward to two weeks ago, when I discovered Vaynerchuk’s book, “Crush It,” in the iPhone app store in “vook” format. (A “vook” is a book that integrates video clips into the text, and can be viewed either on an iPhone or computer Web
browser.)

I purchased and downloaded his vook and began reading. It was fabulous! As I read each chapter on my iPhone, I intermittently viewed supplemental videos. Vaynerchuk was right there with me, explaining his vision and thought processes as no one else could. A few days later I downloaded a cookbook, “The Breakaway Japanese Kitchen,” by Eric Gower, and watched the author prepare the recipes included in the vook. I was a vook convert.

A week after discovering Vaynerchuk’s vook, I sat down for a cup of coffee and absently reached for a magazine. As I did so, I found myself wishing it was in the vook format.

Suddenly, it all clicked.

The future for print magazines is offering readers an ad-free, subscription-based magazine in a digitally-accessible format that uses video and interactivity. In other words, provide a variation of a vook, accessible online, on mobile devices and on ebook readers such as the Kindle and Nook.

The magazine’s Web site could be ad-supported with articles and video clips, but the vook version would be a seamless interface, easily navigable with supplemental videos. So, for example, a travel magazine would include videos of various locales; a
beauty magazine, videos showing how to apply make up; a cooking magazine, videos of the food being prepared; and a technology magazine, videos of various devices being tested.

A few days after I conceived the concept, I learned Condé Nast had just announced it was in the process of creating a workable concept for digital magazines, and that “Wired” would be the first to appear in that format. The digital format would be for use on Apple’s yet-to-be-announced, and long-awaited, Tablet and possibly mobile devices, using Adobe technology. Videos were not mentioned as part of the interactive digital format.

I think the format will become mainstream within two years if magazine publishers ensure the digital versions include video, are ad-free and are accessible on e-book platforms and mobile devices. Like books, people want to take their magazines with them in an easily portable format, rather than be tied to a computer.

Some may balk at first, but eventually will embrace the technology. Rest assured, portable digital media is the next wave in the evolution of the dissemination of information. Magazines and newspapers will evolve into a digitally-accessible format or cease to exist. There’s simply no other option.

Change is Good #lflc

2009-11-24T08:54:03-05:00

This week's Daily Record column is entitled "Change is good"

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

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Change is good

Last week I attended on a press pass the Canadian Bar Association’s “Law Firm Leadership Conference.”

The conference’s theme was “Change Management” and, accordingly, the focus was on ways in which law firms can innovate, and thereby alter, the course of theprofession.

One of my all-time favorite legal scholars, Richard Susskind, spoke at the conference, one of the main reasons I chose to attend it. I’m very glad that I did. All in all it was an enjoyable and educational conference, and I left Toronto with a number of thought provoking issues to ponder.

First, should the leaders in our field be benevolent custodians or jealous guardians of the profession? When phrased that way, the answer seems obvious: Of course we want to be benevolent custodians with only the best intentions, carefully making choices that will improve our profession for the generations that inherit it.

The reality, however, is just the opposite. Lawyers tend to carefully guard the profession and are reluctant make changes that might alter the way things have always been done. We revere precedent and distrust change. As a result, we cling to the past, making decisions about technological changes and innovation that ultimately harm our profession in the long run.

That is a mistake since, as Susskind aptly noted, any lawyer who takes the time to research emerging technologies would wholeheartedly agree that these new platforms fundamentally change the practice of law. Attorneys who deny that fact are reacting emotionally, rather than intellectually.

New technologies have the potential to radically alter the ways in which legal services are delivered to consumers. Forward thinking attorneys are embracing virtual law offices, cloud computing, social media and collaboration tools. Innovative practitioners understand the importance of using knowledge management to alter the consumer experience first, and the law firm’s systems second.

There has been much talk in recent years about pricing legal services differently, including the death of the billable hour and the increase of flat fee services. As Susskind stressed, however, the key to change is to deliver legal services effectively and efficiently. Ultimately, it boils down to delivering value to legal consumers by working differently, rather than through pricing services differently.

The key to working differently is the use of emerging technologies. To do so, the legal profession as a whole must embrace technological change. Attorneys must make it a priority to learn about and understand new technologies, then incorporate them into their practices.

As another conference speaker, Patrick Lamb, noted, law firms must change their culture. That’s not simply a matter of using one or two new technologies, but a matter of changing attitudes. He emphasized that law firms’ youngest members are the key to accomplishing the attitude makeover required.

Generation Y attorneys are less attached to the status quo. They are part of the connected generation and grew up with the Internet. For them, it’s not business as usual: They understand how to use the new technologies and are not averse to change. These attorneys are the future and the inheritors of the profession. Law firms should be generous benefactors and give their younger attorneys the opportunity to lead the charge to change.

Because, as we all must understand —change is good.

Is cloud computing really less secure than the status quo?

2009-11-16T10:30:52-05:00

This week's Daily Record column is entitled "Is cloud computing really less secure than the status quo?"

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

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Is cloud computing really less secure than the status quo?

Cloud computing, defined at Webopedia.com as the “sharing [of] computing resources rather than having local servers or personal devices to handle applications,” is a buzzword that has many lawyers up in arms.

For an even better description of cloud computing, watch this Common Craft video online at www.commoncraft.com/cloud-computing-video.

Examples of cloud computing used by many lawyers and their clients on a regular basis include Gmail and other Web-based e-mail services. Many platforms and services available to attorneys for use in their law practice that are cloud computing-based include practice management and document management software.

Cloud computing critics decry the trend of using cloud computing services in law practices. One of the main criticisms is that cloud computing may result in the loss or disclosure of confidential client data. Such concerns certainly are valid, and most certainly there are a number of issues that need to be addressed.

I would argue the security risks posed by cloud computing platforms are far less than the systems currently in place in most U.S. law offices. If the majority of law offices began using cloud computing services in their practice, client data would be far more secure than it is now.

Despite coverage in the mainstream media suggesting otherwise, the vast majority of lawyers are solo practitioners. According to a 2006 report issued by the New York State Commission to Examine Solo and Small Firm Practice, more than 83 percent of New York attorneys are solo practitioners; 14.7 percent work in offices of between two and nine attorneys, and only 1.8 percent of attorneys work in large firms with 10 or more attorneys (See www.nycourts.gov/ip/solosmallfirmpractice/index.shtml.)

In other words, nearly 95 percent of New York lawyers work in very small law offices. The vast majority of those small firms don’t have IT support on staff, and most lawyers in those firms don’t know the first thing about computers.

Undoubtedly those attorneys continue to use systems and software from the late 1990s —at least, that’s the case in many law offices I’ve visited. Their anti-virus software is antiquated and their practice management software, if they even have it, has never been updated because most attorneys are too busy practicing law to bother with that “computer stuff.” Many don’t understand the importance of updating software and the security issues created when security patches are not installed.

For the vast majority lawyers, as long as their computers are basically functional, it’s business as usual because, as we all know, if it ain’t broke, don’t fix it.

I would argue these law offices —like the vast majority throughout the country —are walking security hazards. Anyone with minimal computer skills and a passing interest in hacking into a law office’s computer system could do so in a heartbeat.

Cloud computing providers are newcomers to the legal software market. Their products aren’t perfect, but they are responding quickly to concerns raised regarding security and other issues. The cloud computing providers that offer software services host the software and data at extremely secure facilities with high levels of bank-grade encryption and update their programs automatically. The attorneys using the services no longer need to worry about these issues and are, in my opinion, in far better shape security-wise than they were before they began using cloud computing services.

Discounting the technologies by using scare tactics and rhetoric is short-sighted and harms the profession in the long run. Cloud computing technology providers are receptive to feedback and continuously adapt their products to meet critics’
legitimate concerns. While the technologies may not be perfect, they are improving rapidly and are a much better alternative to the current computing status quo at most law offices.

Does Cloud Computing Compromise Clients?

2009-11-09T11:49:55-05:00

This week's Daily Record column is entitled "Does cloud computing compromise clients?"

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

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Does cloud computing compromise clients?

I predict that within about two to three years, lawyers in most jurisdictions will communicate and collaborate with clients using some type of an encrypted network.

A number of states, including Massachusetts and Nevada, already have passed laws or regulations requiring certain types of confidential data to be sent electronically only via encrypted communications. More laws of that nature most certainly will follow, both at the state and federal level.

In my opinion, such laws —most of which apply primarily to financial institutions —ultimately will incorporate some of the types of client information contained in attorney-client communications, in large part because of rising concerns due to recent large-scale data disclosures.

In fact, that type of data breach is one of the primary reservations expressed by lawyers when considering whether to implement cloud computing platforms in their law practice.

A recent federal court decision fanned the fire, causing many attorneys to decry the use of cloud computing and assert that doing so violated the very basic obligation to protect confidential client communications and data.

In a decision issued last week by the U.S. District Court for District of Oregon, in In re U.S., Nos. 08-9131-MC, 08-9147- MC, the government argued successfully that it need not notify the account holder regarding a warrant served on the ISP holder of the e-mail account. In reaching its decision, the court gave lip service to the concept that e-mails are entitled to Fourth Amendment protections, but then stated:

Much of the reluctance to apply traditional notions of third-party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.

In comparison, however, see footnote 7 from the October Memorandum and Order issued by the U.S. District Court, Eastern District of New York, inU.S. v. Cioffi:

One preliminary matter is not in question: The government does not dispute that Tannin has a reasonable expectation of privacy in the contents of his personal e-mail account.” See U.S. v. Zavala, 541 F3d 562,577 (Fifth Circuit 2008) (‘[C]ell phones contain a wealth of private information, including emails, text messages, call histories, address books, and subscriber numbers. [The defendant] had a reasonable expectation of privacy regarding this information.’); U.S. v. Forrester, 512 F3d 500, 511 (Ninth Circuit 2008) (‘E-mail, like physical mail, has an outside address ‘visible’ to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient. The privacy interests in these two forms of communication are identical. The contents may deserve Fourth Amendment protection, but the address and size of the package do not.’).

Accordingly, despite the fact the dicta in the Oregon decision flies in the face of binding precedent, online commentators repeatedly raised concerns regarding the decision, asserting it was further evidence that the use of cloud computing in law practices is ill-advised.

I would assert to the contrary the Oregon dicta is further evidence that the incorporation of encrypted client communications in cloud computing may well be the primary factor that convinces attorneys to accept cloud computing services as a legitimate law practice management alternative to traditional software packages.

A number of well-established cloud computing providers already incorporate encrypted communications in their platforms. For example, VLOTech, Clio and NetDocuments allow for varying types of encrypted communication with clients. Another online legal platform, NKrypt, is devoted to providing a secure, encrypted e-mail network.

Cloud computing providers are adapting quickly to and responding to the concerns raised by lawyers. As a result, lawyers are becoming increasingly comfortable with the concept of cloud computing. In fact, according to the 2009 Am Law Tech Survey, 84 percent of responding law firms already use SaaS (Software as a Service), a form of cloud computing, in some capacity.

As cloud computing becomes more prevalent in the legal field, more lawyers will understand the importance of carefully negotiating their contracts with the services providers to ensure that, for example, they are notified if a warrant relating to their data is served.

Mark my words: Cloud computing is the wave of the future, and encrypted communication is one of the keys to putting attorney’s minds at ease regarding an emerging technology. Astute providers will incorporate encrypted communication into their platforms, and smart lawyers will learn about and use the emerging technology in their practice.

Tricks for efficient online interaction

2009-11-02T16:30:08-05:00

This week's Daily Record column is entitled "Tricks for efficient online interaction"

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

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Tricks for efficient online interaction

Many lawyers understand the importance of networking, but let’s face it — running a law practice takes time and no one ever seems to have enough of it. In fact, the lack of time is one of the main reasons lawyers offer as an excuse to avoid online networking.

If you use the right timesaving tools, however, you will be able to streamline your online networking experience, so that the time you spend online will be more effective and efficient.

The first thing you need to do is use Firefox as your default Web browser. The tools you can add to the browser bar will make your life online much simpler.

My first add-on recommendation? Ditch Google Reader as the RSS feed reader and switch to Feedly (www.feedly.com). Feedly pulls the feeds you subscribe to using Google Reader and presents them to you in a far more user-friendly interface. Feeds appear in a magazine-like view that is much easier on the eyes and sorting through new items is simple and intuitive.

Feedly doesn’t stop there, however. It also allows blogs posts and articles appearing in your feed to be shared quickly and easily. Choose the appropriate button in the tool bar appearing at the top of each item in your feed and, with the click of a button, you can share content on Twitter or Facebook. Feedly automatically creates the body of the post and shortens the link for you. E-mail the content to a client or colleague to whom it might be of interest, add it to your delicious bookmarks or clip it to Evernote.

Feedly also has a new experiment called “Karma,” which allows tracking of the links you’ve shared on Twitter. You can see which links are most popular, how many times people have re-tweeted your links and how many times people clicked through to the content.

Finally, Feedly allows content to be shared quickly via e-mail or Twitter as pages are viewed on the Web via a mini-tool bar appearing at the very bottom left corner of each Web page.

Another favorite tool is Shareaholic (www.shareaholic.com),also a Firefox browser toolbar add-on. Like Feedly, Shareaholic automatically generates the body of each post and shortens links, allowing you to quickly share content on different Web platforms. One of the benefits of Shareaholic is the breadth of networking sites it supports, including Twitter, Facebook, LinkedIn, Friendfeed, Digg, Reddit, StumbleUpon, Evernote, delicious, Diigo and Twine.

Should you decide to test the waters and begin interacting on Twitter, a number of platforms and tools are available to make your Twitter experience far more pleasant.

Three very popular desktop Twitter platforms are Tweetdeck(www.tweetdeck.com), Seesmic (www.seesmic.com) and Tweetie (www.ate bits.com/tweetie-mac). The platforms offer different features that simplify your Twitter user experience. Tweetree (www.tweet ree.com) and Tweetvisor (www.tweet visor.com) are two online Web interfaces that accomplish the same goal.

Another really useful Firefox add-on is Mr. Tweet (https://addons.mozilla.org/enUS/firefox/addon/12647), which once installed automatically provides useful information about your followers on Twitter, in turn allowing you to efficiently sort through and maintain your relationships there.

Microsoft Outlook users should be aware of Twinbox (www.techhit.com/TwInbox/twitter_plugin_outlook.html), an add-in that seamlessly integrates Twitter and Outlook, making it easy for you to manage a Twitter account directly from Outlook.

Twitter applications can be used on your smartphone to keep up with the conversation stream. Popular iPhone Twitter applications include Tweetie (www.tweetie.com), Tweetdeck (www.tweetdeck.com) and Twitterific (www.twitterific.com).

Arguably, the most popular BlackBerry applicationis Twitterberry (www.twitter berry.com). Other Black-Berry applications to consider are Twibble (www.twibble.com) and Tiny Tweeter (www.tinytweeter.com). If the Palm Pre is your smart phone of choice, Tweed (http://tweed.pivotallabs.com/) is a good Twitter application to consider.

Finally, Social Mention (www.socialmention.com) is a great, free resource that allows real-time searches of online social networking sites for mentions of you, your business, your competitors, key words relevant to an area of practice or other topics. Search results can be filtered to locate mentions from certain types of sites, such as Twitter, blogs, or video sites such as YouTube. Search results also provide interesting data about the results, including whether the sentiment expressed is positive or negative.

Online networking does not need to be an overwhelming experience. With the proper tools, online interactions can be made more efficient, and more streamlined than you ever dreamed possible. Put these tools to use and make online networking work for your law practice.

Real-time Web a Game Changer

2009-10-27T12:54:17-04:00

This week's Daily Record column is entitled "Real-time Web a Game Changer."

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

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Real-time Web a Game Changer

You’ll have to forgive me for having online technologies, including social media, on my mind a lot lately.

I’ve been speaking about social media for lawyers quite a bit in recent months and am now enmeshed in the process of writing a book with Carolyn Elefant about social media for lawyers, which will be published by the American Bar Association.

As a result, I’ve spent a good deal of time mulling over how the rapidly changing world of online technology will affect the legal profession. The technologies are evolving at a rapid pace and changing the world around us on a global scale.

Rest assured, our profession is not immune to the paradigm shift. Social media, cloud computing, mobile computing, real-time Web and real-time search are some of the core areas predicted to be game changers over the coming year.

Lawyers cannot afford to ignore the trends and should, at the very least, make an effort to learn and understand the concepts.

Two major developments were announced last week that will make one of the predicted game changing trends —real-time Web and real-time search —a more viable reality. Twitter announced agreements with Bing (Microsoft’s search engine) and Google to allow both engines full access to its data, as produced in real time.

Microsoft also negotiated an agreement with Facebook that will allow Bing access to some of Facebook’s data.

Of course, some of you are probably wondering: What is the real-time Web, and why should I care? Good question.

In July, Wikipedia described the real-time Web as:

[T]he concept of searching for and finding information online as it is produced. Advancements in web search technology coupled with growing use of social media enable online activities to be queried as they occur. A traditional web search crawls and indexes web pages periodically, returning results based on relevance to the search query. The real time web delivers the most popular topics recently discussed or posted by users. The content is often “soft” in that it is based on the social web —people’s opinions, attitudes, thoughts and interests —as opposed to hard news or facts.

Now in its infancy, the real-time Web soon will be commonplace, and will allow instantaneous access to information on any topic or event, as soon as that information becomes available, and as the event is occurring.

At first glance, that may not seem to be an earth-shattering concept, but it is a paradigm shift worthy of note. Lawyers should sit up and take notice.

User-generated content, the fundamental building block of the “social Web,” now is more influential, and instantaneously is given more credence as a
result of appearing in search engine results as soon as it is created.

Criticisms of legal employers or law schools appearing on Twitter have become infinitely more powerful.

Small businesses, including law firms, that use Twitter or Facebook as part of their marketing efforts online can strategically tweak their marketing approach on those platforms to mirror trends and topics affecting their business, and thereby appear higher in search engine results.

Astute lawyers likewise will use real-time search to locate issues and trends that may affect their areas of practice, then tailor their marketing and litigation
efforts accordingly. Class action attorneys, for instance, can search for real-time complaints about a particular drug or product and predict when or where a class of injured people may exist long before their technologically deficient colleagues get wind of it.

Make no mistake about it —real-time search finally is here, and it’s going to alter the way that business is done. It’s a game changer, folks.

At the very least, learn about it and understand its ramifications. If you’re feeling especially daring, put it to work for your law practice. It can never hurt to stay ahead of the curve, especially when most of your competitors don’t even realize the curve exists.

Who are you, Nicole Black (aka @nikiblack), and what do you do?

2009-10-25T12:22:04-04:00

Some of you may wonder just that--who is Nicole Black? However, more likely than not, most of you probably don't care. I realize that--and answering that question really isn't my goal here, so please excuse what appears to be extreme navel gazing.

The primary purpose of this post is to clarify, for search engine purposes, who I am, what I do and why.

This is my strongest domain name in terms of SEO which is why I'm posting this here. I'll be linking to it on my other blogs and if you have a blog, I would be ever so grateful if you would link to it as well (even if it consists of just a single word in an unrelated post that links back to this post-I'm just hoping for inbound links).

That will help push this post up in search engine rankings so that when people search for my name or my Twitter ID this is where they'll end up and they'll be sure receive accurate, truthful information about me.

I am 39 years old, have been married for 11 years and have 2 children. I have lived in Rochester, NY for most of my adult life.

I graduated from Albany Law School in 1995 and was admitted to the New York State Bar in 1996.

I interned in the Monroe County Public Defender's Office appeals bureau from 1995-1996. During that time, I accomplished one of the most significant wins of my legal career: I was successful in overturning a murder conviction in the matter of People v. Sierra, 231 A.D.2d 907, 647 N.Y.S.2d 891 (4th Dep't 1996).

Shortly after I argued that appeal, I was hired as an Assistant Public Defender and worked there for nearly 4 years, handling over 3000 criminal cases during that time frame. I conducted countless hearings and trials, including a number of jury trials.

In 1999 I left the Public Defender's Office and was hired as an associate at Trevett, Cristo, Salzer & Andolina. I continued to handle criminal defense matters. I handled assigned counsel matters, my own retained criminal defense matters and worked with some of the partners at the firm--widely held to be some of the best criminal defense attorneys in town--on their cases. I also handled all types of civil litigation matters, ranging from personal injury litigation (plaintiff and defense), commercial litigation and built up my own employment discrimination book of practice.

In 2002 my first child was born. Later that year, I was told that I was on partnership track and would likely make partner the following year. My internal reaction to the knowledge--dread--caused me to take a deep look inward. I realized that I wasn't happy. I knew that I wasn't where I wanted to be in life and if I stayed on that track, I'd most likely be stuck for good.

I loved the firm and the people in it. That's not what was making me unhappy. I wasn't sure what was, but I knew that I felt like a part of me was dying--and I needed a change.

So, I took a self imposed hiatus from the law in 2003 and had my second child. I returned to the law in 2005, opening up shop as a contract attorney and started my first blog--this blog.

From there, things fell into place for me. As I blogged, business found me. Lawyers hired me to do work for them, and at the same time, writing and speaking opportunities were offered to me.

I began to write a weekly column for the Daily Record and was offered the opportunity to co-author the West Thomson treatise Criminal Law in New York.

And, in early 2007, Ed Fiandach approached me to do work for his office, a well-recognized DWI defense firm. After I'd handled a few projects for him, he asked if I would consider becoming of counsel with the firm and handle appeals (including appellate arguments) and memos to the court for their office.

I happily agreed, with the understanding that I could continue my writing and blogging. I wanted to be able to continue to express myself without reservation.

Ed agreed and also advised me that if I ever wanted to make court appearances, including hearings and trials, that option was available to me as well. I declined, since I knew that if I did so, I would lose the flexibility for which I had worked so hard.

I continue to handle projects for the firm. The demand for my assistance with projects varies to this day, depending on any number of factors: the economy, demand within the office, the number of appeals filed by the DA's office, and my own schedule. Just last month I declined a few projects due to a number of writing deadlines that I was facing.

While criminal defense has always been one of my primary passions, I've found another since re-entering the legal field in 2005: a fascination with the intersection of law and technology.

I regularly write, blog and speak about this topic. Earlier this year, I founded lawtechTalk, which is the vehicle through which I seek to empower and encourage lawyers to accept change and technological advancement by bringing them the most up-to-date information through personal consultations, speaking engagements, and online presentations.

I continue to speak regularly about the intersection of law and technology and am in the process of writing a book about social media for lawyers, which I am fortunate to be co-authoring with Carolyn Elefant.

I find the balance between my various endeavors to be perfect. I no longer experience a sense of dread when I think about where my professional career is leading me. I feel passion every day for the issues that occupy my thoughts as a result of my chosen career path.

As I re-read the previous paragraph, I realize just how lucky I am. Each day is an adventure--and one that I welcome. You can't get much better than that now, can you?

Law Schools Failing Their Clientele

2009-10-20T12:55:18-04:00

This week's Daily Record column is entitled "Law schools failing their clientele."

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

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Law schools failing their clientele

Law schools need an attitude adjustment. Their current educational platform is a near total failure and provides graduates with little, if any, practical knowledge.

The current system teaches students how to “think like lawyers,” but essentially ignores the obligation to teach them how to actually practice law. It is rooted in an archaic mindset that looks backward rather than forward.

Most law schools’ curricula tend to ignore the realities of the business world and discourage students from using emerging technologies. Surprisingly, the incorporation and acceptance of emerging technologies, including social media, actually is discouraged in many cases.

As law schools rest on their laurels, relying on antiquated teaching techniques that do little to prepare students for the realities of law practice, the profession as a
whole suffers.

In recent months, I’ve had many discussions with law students and recent graduates about this issue.

Inevitably, whenever I speak with recent law school graduates they express a nearly universal feeling of being completely unprepared to practice law.

Many express consternation with their plight. Even attorneys who have been practicing law for a number of years as associates feel unprepared to venture out on their own.

One associate in a firm who has been practicing law for more than two years, had aspirations to start his own criminal defense practice, but indicated he felt he lacked the experience to do so.

His reluctance and anxiety are particularly disturbing given that,according to a recent study, nearly 80 percent of lawyers either are solos or practice in small firms. Most law schools ignore that reality and prepare students for the miniscule possibility they will spend their careers toiling away in Big Law.

As a result, future lawyers and practicing lawyers are virtually unanimous in their criticism of the current curricula and the teaching methods used.

When I asked my followers on Twitter for their opinions on theissue, most said they believe law schools simply are failing to prepare students for the realities of law practice.

RWSJR: “Most of the people I know who went to law school in the early ‘90s no longer, or have never, practiced law. Expectations not managed.” —Ralph Smithers Jr., insurance professional and husband of a criminal defense attorney

SMungmung: “The Socratic system is not effective; shift of teaching strategies = right direction but still remains theoretical. Need more clinics!” —New York attorney

Jenslegalpad: “More practical classes. ... Sure we’re all smart enough to figure it out on our own, but after $90K in tuition, should we have to?” —Jennifer H. Bernstrein, New York

Shawnjroberts: “Law schools need to have required internships like med schools, to guarantee practical experience.” —Shawn J. Roberts, Oklahoma attorney

BabFab: “Project Management! Running a big litigation is all about PM. Law schools need to teach these skills.” —New York

DisabilityGuy: “I was told by new law students that using computers to take notes was strongly discouraged during orientation.” (Widener Law School) —Stephen Butler, Delaware attorney

“The job search process…is focused on the top 5 percent of the class. Few schools do a good job of catering to the rest of the class. … [T]here are almost zero resources in the schools to help [students who want to start their own practices].” — Bobbi-Sue Doyle-Hazard, Massachusetts attorney

Overall, the consensus is that the current system is broken. Until law schools drastically revise current curricula and their attitude toward change, the legal profession will suffer. Law schools need to radically alter the current philosophy in order to serve the needs of their clientele —the future leaders of our profession.

The failure to do so will be felt for years to come.

Still more social media for lawyers: Participate!

2009-10-06T09:47:21-04:00

This week's Daily Record column is entitled "Still more social media for lawyers: Participate!"

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

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Still more social media for lawyers: Participate!

My thoughts continue to be focused on social media because of two upcoming speaking engagements on lawyers and social media.

The first is sponsored by Gotham Media Ventures, to be held Thursday in New York City. I’ll also be speaking Oct. 16 in Los Angeles at the American Bar Association’s Solo and Small Firm conference.

One important concept I intend to stress to attendees at both conferences is that engaging in focused online participation and interaction is the best way to amplify
and reap the benefits from an online presence.

It’s not difficult to do, as long as you’ve followed the advice from my two previous columns in this series:

Establish a basic online presence and identify the online platforms with which you are most comfortable participating. The final step is to dive in and interact.

Learn and interact, exchange information and network and share your content, including blog posts, recent achievements and media mentions.

Of course, an individual’s level of participation and interaction vary from one platform to next The key to effective participation is to be genuine, transparent, and to provide useful, relevant information no matter what the context.

Interact and converse, rather than merely broadcast and boast. Don’t be afraid to share personal interests occasionally alongside professional ones. Doing so humanizes you and makes you appear more approachable to potential clients and other attorneys.

Attorneys with a law blog should respond to people who comment on posts. Post comments to other law blogs, leave links to your blog when inputting your name and contact information.

Link to other law bloggers’ posts, discuss the points raised and offer your take on the issue.

Engage in a conversation with other bloggers. You’ll make new connections, increase the number of incoming links to your blog —important for search engine optimization —and, perhaps, you might even learn something new.

If online forums are your platform of choice —groups on Facebook, LinkedIn, or online legal communities Lawlink (lawlink.com), Martindale-Hubbell’s “Connected” (martindale.com/connected) and the ABA’s legal network, “Legally Minded” (legallyminded.com) —be sure to check in a few times each week

When visiting a forum, reply to posts from other attorneys if you’re able to offer useful commentary or information. Start new discussions relating to your areas of practice by asking for input regarding a change in the law, soliciting advice as to the procedures in a particular court or jurisdiction or asking participants for opinions on how to handle a particularly thorny procedural
issue.

By participating in online legal forums, you’ll gain useful information, increase your reach online and network with new colleagues.

Users also can engage in conversations with colleagues using the status update feature on Facebook and LinkedIn. Post your firm’s most recent blog posts to your accounts on those sites, post occasional updates about your professional activities and accomplishments, link to interesting news stories relevant to your areas of practice and comment on your colleagues’ recent activities. By doing so, you’ll provide colleagues and friends with useful and relevant information, engage with them, maintain professional and personal relationships and promote your practice and accomplishments.

Finally, if Twitter is your online platform of choice, follow my 50-30-10-10 rule. 50 percent of “tweets” should provide followers with links to articles, blog posts and other online content you think might be of interest; the percentage includes “re-tweets,” or re-posts of tweets from other users, of relevant content; 30 percent should be replies to other users’ tweets —in other words, engage in conversations with others 20 percent of the time; 10 percent of tweets should consist of self-promotion, including your firm’s blog posts and information about professional
activities and accomplishments;

Tweet about your personal interests and hobbies about 10 percent of the time. Doing so, again, will do much to humanize you, make you more interesting to your followers and allow you to connect with non-legal users who share similar interests.

That segment of your audience should not be ignored —they are your potential clients or referrers, with whom we all know it’s always a good idea to connect.

In summary, an effective online presence revolves around visibility, relevancy, personality and engagement. Find the forums with which you are most comfortable and put these principles to work. You’ll find it well worth your time and effort.