Sui Generis-a New York Law Blog

Pre-Order My Latest Book "Cloud Computing for Lawyers" [UPDATED]

2012-01-25T08:18:00-05:00

UPDATE: You can read the Introduction here.

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My latest book, "Cloud Computing for Lawyers" is now available at the ABA's online store. You can pre-order it here.

I can't tell you how excited I am about this book! It includes a ton of useful information from leaders in the legal technology field, including:

The foreward, written by Richard Susskind
The ethics chapter, written by Steph Kimbro
Contributions from Robert Ambrogi, Ben Schorr, Allison Shields, Tomasz Stasiuk and more
Expert advice and practical commentary from Howard Lenow, Jonathan Jaffe, Finis Price, Ben Stevens, Russell Leisner, Steph Kimbro,Tomasz Stasiuk, Robert Krakow, Mason Boswell, Jack Newton, Larry Port, Jeff Nitta, Joel Lessom, and Danny Johnson

Here's a brief description from the ABA site:

As more businesses move their IT systems into the cloud, lawyers need to ask if cloud computing is right for their firm. Cloud Computing for Lawyers features a discussion of cloud computing fundamentals, an overview of legal cloud computing products, and step-by-step instructions for implementing cloud computing in your practice--including practical tips for securing your data. This book will help you:

Understand the current state of cloud computing technology

Weigh the risks and benefits of cloud computing

Evaluate legal cloud computing applications like law practice management, billing, time tracking, e-mail, and e-discovery software

Consider the ethical considerations of storing client data in the cloud

Maintain security and privacy for your online data

It will start shipping at the end of this month.

I'll be speaking on at panel at LegalTech New York on January 30th and will have copies with me, so you'll be able to take a look if you happen to attend LegalTech this year.

There will also be a "Meet the Author" session at ABA TechShow on March 30th at 1:45 and copies of the book will be available for purchase at TechShow.

I'm thrilled that this book is now available and am so thankful to all of my friends and colleagues, both online and off, for their support as I wrote this book. Couldn't have done it without you!

Nicole Black is a Rochester, New York attorney and GigaOM Pro Analyst. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in late 2011. 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 nblack@nicoleblackesq.com.

New York State Ethics Committee On Lawyers Using Groupon-type Services

2012-01-24T14:54:02-05:00

This week's Daily Record column is entitled "New York State Ethics Committee On Lawyers Using Groupon-type Services."

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

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New York State Ethics Committee On Lawyers Using Groupon-type Services

It’s been years since the economy was booming and although the recession is technically “over,” it sure doesn’t feel like it. Which is unfortunate for the legal profession since, when money is tight, the last thing people want to do is hire an attorney unless it’s absolutely necessary. For that reason, competition for those in the market for legal services can sometimes be fierce and many lawyers are seeking to market themselves as creatively as possible in an attempt to attract new clients.

Some are even turning to sites like Groupon, which are online platforms through which local businesses offer group discounts to potential customers. Through these sites, a business can offer customers the opportunity to purchase a service or product at a deeply discounted rate, so long as a minimum number of other patrons agree to purchase the service at that price. If the minimum number of people sign up, then the proceeds from the sale are split between the website and the business offering the discount.

In a previous column, I questioned the wisdom of lawyers using Groupon since, in my opinion, selling legal services alongside spa treatments or car washes does little to enhance the dignity of our profession. Even so, lawyers continue to seek to advertise their services using sites like Groupon and for that reason, in Opinion 897 (12/13/11), the New York State Bar Association’s Committee on Professional Ethics recently grappled with the ethical issues presented when lawyers do so.

One interesting issue considered by the Committee was whether the money retained by Groupon constitutes an improper payment for a referral in violation of Rule 7.2(a). This rule provides, in relevant part, that “(a) lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client.”

The Committee sought guidance from Comment 1 to Rule 7.2(a) which provides that it is permissible for a lawyer to pay for advertising and communications as permitted by the Rules. Accordingly, the Committee concluded that as long as the fees paid to websites like Groupon were reasonable, such fees were ethically permissible, since they are more akin to an advertising fee rather than a referral fee. This is because the website takes no “action to refer a potential client to a particular lawyer – instead it...carrie(s) a particular lawyer’s advertising message to interested consumers and...charge(s) a fee for that service.”

The Committee then examined a number of other ethical quandaries presented by advertising via Groupon, including the need to refund excessive attorney’s fees, compliance with advertising regulations and the risks of forming an improper or premature attorney/client relationship and concluded: “A lawyer may properly market legal services on ‘deal of the day’ or ‘group coupon’ website, provided that the advertisement is not false, deceptive or misleading, and that the advertisement clearly discloses that a lawyer-client relationship will not be created until after the lawyer has checked for conflicts and determined whether the lawyer is competent to perform a service appropriate to the client. If the offered service cannot be performed due to conflicts or competence reasons, the lawyer must give the coupon buyer a full refund. The website advertisement must comply with all of the Rules governing attorney advertising, and if the advertisement is targeted, it must also comply with Rule 7.3 regarding solicitation.”

Thus, although marketing your services via websites like Groupon may not be the most dignified way to advertise your services, doing so isn’t necessarily unethical.

Nicole Black is a Rochester, New York attorney and GigaOM Pro Analyst. She 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 nblack@nicoleblackesq.com.

Oregon Ethics Board on lawyers, cloud computing

2012-01-19T09:52:15-05:00

This week's Daily Record column is entitled "Oregon Ethics Board on lawyers, cloud computing."

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

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Oregon Ethics Board on lawyers, cloud computing

As cloud computing picks up speed and becomes more commonplace, lawyers are beginning to sit up and take notice. And, understandably, many who are considering using cloud computing services in their law practice wonder about the ethics of using these services, since doing so means that confidential client information is stored on servers owned and maintained by third parties.

As a result, over the last year or two, ethics committees from across the country have issued opinions which address that very issue, including: Professional Ethics Committee of the Florida Bar Op. 10-2 (2011), New York State Bar Association’s Committee on Professional Ethics Op. 842 (2010), Pennsylvania Bar Association Ethics Opinion No. 2010-060 (2010), North Carolina Bar Proposed 2011 Formal Ethics Opinion 6 (2011), and Iowa Committee on Practice Ethics and Guidelines Ethics Opinion 11-01 (2011).

The Oregon State Bar recently joined the pack in December of 2011 when it issued Formal Opinion No. 2011-188 concluded that Oregon attorneys may store client materials a third-party servers as long as there is compliance with the Oregon Rules of Professional Responsibility’s duties of competence and confidentiality which require lawyers to take reasonable steps to ensure the security of confidential client information.

According to the opinion, the reasonable steps that must be taken to ensure the security and confidentiality of client information include: “(E)nsuring the service agreement requires the vendor to preserve the confidentiality and security of the materials. It may also require that vendor notify Lawyer of any nonauthorized third-party access to the materials. Lawyer should also investigate how the vendor backs up and stores its data and metadata to ensure compliance with the Lawyer’s duties.”

Of course, technology changes rapidly these days and cloud computing services are no exception. The method of delivery of the cloud computing services, the location of the servers, and the security measures used to protect the data stored on the third party servers may change at any time. Accordingly, it is imperative that lawyers stay abreast of the changing nature of the cloud computing services provided to their law firms.

This fact was acknowledged in the opinion and of import was the emphasis placed on the continuing obligation of attorneys to reevaluate the security measures used by a cloud computing vendor:
“Although the third-party vendor may have reasonable protective measures in place to safeguard the client materials, the reasonableness of the steps taken will be measured against the technology ‘available at the time to secure data against unintentional disclosure.’ As technology advances, the third-party vendor’s protective measures may become less secure or obsolete over time. Accordingly, Lawyer may be required to reevaluate the protective measures used by the third party vendor to safeguard the client materials.”

Compared to some of the opinions issued by other ethics committees, the Oregon opinion provided less detailed guidance for attorneys considering a move to the cloud.

But, that’s not necessarily a bad thing because, as acknowledged in the opinion, technology changes rapidly. Committees that choose to impose upon attorneys very specific requirements relating to current technology limit the longevity and applicability of the opinion, quickly rendering it obsolete.
The wiser course is to follow the Oregon Bar’s example and draft an opinion that offers elastic, broadly framed guidelines that will apply to future technological advances and thus withstand the test of time.

Virtual Law Offices: California Weighs In

2012-01-10T14:17:01-05:00

This week's Daily Record column is entitled "Virtual Law Offices: California Weighs In."

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

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Virtual Law Offices: California Weighs In

Virtual law offices are a relatively new, emerging concept, but fortunately for legal practitioners, a number of ethics committees are slowly but surely addressing the ethical issues surrounding the practice of law via an online portal.

Most recently, in November 2011, the State bar of California Standing Committee on Professional Responsibility and Conduct addressed the ethics of maintaining a virtual law office in a draft formal ethics opinion (No. 10-0003) (See: www.calbar.ca.gov/Portals/0/documents/publicComment/2012/). This proposed opinion was handed down on November 5th and then opened up for a 90-day public comment period.

The issue considered by the Committee was whether “an attorney (may) 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”).”
Before addressing the ethical issues posed by VLOs, the Committee acknowledged that the cloud-based technologies used by VLOs are similar to the cloud computing software used by some traditional law offices and thus its many of its conclusions in the opinion applied equally to VLOs and brick and mortar offices using cloud computing services. However, because the hypothetical VLO at issue was solely virtual with no brick and mortar components, it presented unique ethical issues which would require due diligence considerations specific to VLOs.

In particular, the VLO practitioner must exercise reasonable care in ensuring that confidential client information is adequately protected from disclosure to unintended third parties. Of note, however, was that while technological expertise on behalf of the attorney was not required, it was essential that any attorney wishing to use cloud computing tools in their law practice have a basic understanding of the technology. As the Committee explained, “(W)hile Attorney is not required to become a technology expert in order to comply with her duty of confidentiality and competence, Attorney does owe her clients a duty to have a basic understanding of the protections afforded by the technology she uses in her practice.”

The Committee listed a number of factors that an attorney must address when choosing a VLO cloud computing provider, including: 1) the credentials of the vendor, 2) data security issues, 3) whether the cloud vendor will transmit client data across jurisdictional boundaries, 4) the attorney’s ability to supervise the vendor, and 3) the terms of the contract with the vendor. The Committee stressed that these obligations are continuing and the attorney must continue to reassess these issues, as needed, throughout the term of the contract with the vendor.

The Committee also advised that client consent regarding the storage of client data on a third party server was not required in regard to the hypothetical VLO discussed in the opinion, since that system was password protected and encrypted, and each client was permitted access only to his or her own matter. However, the Committee cautioned that a different type of VLO set up might require client consent, as might changing security standards over time, and thus the issue of client consent must be carefully considered based on the specific technology set up of the VLO each time an attorney establishes a virtual law practice.

The Committee also addressed, at length, the unique ethical issues presented by the delivery of legal services through a VLO. These obligations include ensuring that the intake process provides both the attorney and the client with sufficient information regarding legal services to be provided and the scope of representation. The attorney must also ensure that the client has an understanding of and access to sufficient technology to support representation via the VLO. Finally, the attorney has an obligation to keep the client sufficiently informed of the status of the matter and to adequately supervise “subordinate attorneys, and non-attorney employees or agents” even if those employees operate out of different physical locations.

All in all, this proposed opinion provided a very thoughtful and detailed analysis of the ethical issues presented when an attorney establishes a virtual law practice.

The only aspect of the opinion that troubled me was the suggestion that, in some cases, lawyers who outsourced the storage of confidential client data to third party providers might need to obtain client consent prior to doing so. Client consent is generally not a requirement when attorneys outsource the storage or handling of confidential client data in paper format, such as when storing old paper files in a warehouse or providing a process server with confidential documents. Electronic data should be treated no differently simply because the confidential information is stored in a different format. The suggestion that, in some cases, it might be treated differently in the future does not bode well for cloud computing and sets dangerous precedent.

That being said, aside from that one issue, this is a well thought out opinion that provides legal practitioners with a helpful overview of the ethical issues presented by VLOs and offers useful guidance for attorneys considering establishing this type of law practice.

New York Ethics Committee on Lawyers’ Use of Social Media During Trials

2012-01-04T12:48:52-05:00

This week's Daily Record column is entitled "New York Ethics Committee on Lawyers’ Use of Social Media During Trials."

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

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New York Ethics Committee on Lawyers’ Use of Social Media During Trials

Despite the rise in social media use by the general population, many lawyers continue to be reluctant to use social media to support their law practices. Nevertheless, widespread social media use is a phenomenon that is becoming increasingly difficult for lawyers to ignore, as social media issues repeatedly crop in their cases.

For example, in a December column I discussed two New York criminal cases which focused on whether contact via social media websites constitutes a crime and in a November column, I analyzed two New York civil cases which addressed the issue of lawyers mining social media sites for evidence.

Social media use is also affecting jury trials and one interesting issue that has arisen is whether it is ethically permissible for lawyers to investigate jurors’ use of social media during the pendency of a trial and what lawyers must do if misconduct is discovered. The New York County Lawyers’ Association Committee on Professional Ethics addressed that very issue in Formal Opinion No. 743.

At the outset, the Committee cited RPA 3.5, which prohibits contact with jurors during the pendency of trials. The Committee explained that pursuant to RPA 3.5 it is ethically permissible for attorneys to conduct research and follow a jurors’ social media interactions only if the jurors are unaware the monitoring. In other words, lawyers may only passively follow a juror’s public social media interactions and may not take any actions that would make the jurors aware of their efforts.

So that means lawyers must ensure that jurors receive no notifications regarding the monitoring, thus precluding them from making a “friend” request of an individual juror on Facebook, “following” a juror on Twitter (since Twitter users are notified of new followers), signing up for a juror’s blog’s RSS feed via an email subscription, or visiting a juror’s LinkedIn profile (since LinkedIn provides users with information regarding those who recently viewed their profile).

Another ethical issue that lawyers may encounter when monitoring jurors’ social media use is the discovery of juror misconduct. In that case, if a lawyer discovers that a juror has violated the court’s instructions through the use of social media, then RPC 3.5 requires that the lawyer immediately report the misconduct to the court.

Importantly, as the Committee explained, a lawyer may not use knowledge of the misconduct to benefit his or her client’s case: “Further, the lawyer who learns of improper juror deliberations may not use this information to benefit the lawyer's client in settlement negotiations, or even to inform the lawyer's settlement negotiations. The lawyer may not research a juror's social networking site, ascertain the status of improper juror deliberations and then accept a settlement offer based on that information, prior to notifying the court. Rather, the lawyer must "promptly" notify the court of the impropriety—i.e., before taking any further significant action on the case.”

The Committee also clarified that lawyers have no ethical obligation to monitor jurors’ social media activities, but should they choose to do so, must notify the court of any improprieties discovered.

Thus, the decision to monitor jurors’ social media use during trial is a strategic one and requires careful consideration prior to its implementation, since information discovered could result in a mistrial or otherwise disrupt the proceedings. Similarly, if you decide to track jurors’ online interactions, it is important to have a thorough understanding of the various social media platforms, lest you inadvertently violate your ethical obligations by triggering a notification or otherwise notifying a juror of your monitoring efforts.

In other words, the lesson to be learned from this ethics decision and the social media cases that I have written about in recent months is that, nowadays, in order to be an effective lawyer, it is important to have a full understanding of the major social media platforms, including your ethical obligations when using them, so that you can ascertain how their use may impact your client’s case. The failure to do so could arguably amount to malpractice.

Legal Technology Predictions for 2012

2011-12-30T10:18:45-05:00

This week's Daily Record column is entitled "Legal Technology Predictions for 2012."

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

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Legal Technology Predictions for 2012

If 2011 was the year that lawyers finally took notice of Internet-based and mobile technologies--if only because these tools affected evidentiary issues in their practices--then 2012 will be the year that most lawyers not yet using these tools will make a conscious decision to put off using many of them in their practice.

This is because for many lawyers, the continued economic recession will cause increased financial pressures and competition for clients, requiring lawyers to work harder just to make ends meet. Accordingly, emerging legal technologies will be a low priority since the time and monetary investment needed to learn about and implement these tools into their law practices will deter them from doing so.

That being said, 2012 won’t be a technology vacuum for the legal field. Lawyers will become increasingly mobile and the use of iPads and other tablet devices will continue to increase dramatically. iPads will be the tablet device of choice since the iPad offers the best selection of work-related apps thus making it particularly appealing to lawyers.

Smart phone use will also continue to rise, with the iPhone leading the way, in large part due to its compatibility with iPads. The use of Android devices will come in at a close second, with Blackberry use declining rapidly.

However, when it comes to cloud computing and social media, the future doesn’t look so bright in 2012. I believe that attorneys’ use of cloud computing tools will rise very slowly over the next year, while social media use will remain nearly stagnant as some attorneys currently participating will drop out and will then be replaced by a nearly identical number of attorneys looking to test the social media waters.

Specifically, regarding cloud computing, I predict that there will be a cloud backlash as a number of ethics decisions are handed down in 2012 which will discourage the use of cloud computing tools. Nevertheless, some lawyers will still choose to use cloud computing in their law practices, but most will likely choose to use these tools for non-confidential information, such as billing or the storage of forms and other less sensitive data in the cloud.

The good news is that the cloud backlash will reverse itself in mid-2013, much like what occurred with the email backlash in the 1990s. Rest assured, mass adoption of cloud computing tools for the processing and storage of confidential information is the future, it will just take the legal field a while to realize the inevitability of that fact.

Regarding lawyers’ use of social media in 2012, the numbers will generally remain stagnant.

LinkedIn will be the most active in terms of new participants, but the participation will generally be limited to the creation of profiles with no further interaction.

The use of Facebook will also increase slightly in 2012, as lawyers join with the primary goal of keeping in touch with family and friends.

The percentage of lawyers with active legal blogs and Twitter accounts will likely remain stagnant, as the number of lawyers abandoning their blogs and Twitter accounts will be nearly identical to the number of lawyers creating new legal blogs or Twitter accounts.

There will be a sizable increase in the number of AmLaw 200 firms participating on Twitter and publishing legal blogs, although their Twitter participation will be mostly promotional and their blogs will consist of bland legalese and will be devoid of personality. For the most part, AmLaw 200 firms’ social media participation will lack the essential element that makes social media use worthwhile: personal interaction. For that reason, their social media participation will be mostly ineffective.

Finally, by the end of 2012, Google Plus, Google’s new social network, will finally come into its own. Currently, Google Plus is in its infancy, but the Google development team is in the process of integrating Google Plus into all aspects of Internet users’ day-to-day online interactions, from search and media consumption to communicating with friends and family. As Google Plus begins to compete with the already established social networks and becomes increasingly mainstream in late 2012, lawyers will begin to take notice and the number of lawyers using Google Plus will begin to rise.

So, those are my predictions. I feel fairly confident about them, but hope I’m wrong about some of them--in particular the cloud computing backlash. I truly hope that, come this time next year, I’ll look back and breathe a sigh of relief that the backlash I predicted never occurred. If that’s the case, I’ll truly be proud of my profession and the ethics committees for their forward thinking adoption of a technology that is undoubtedly the future the of computing.

2011 holiday gifts for the tech-savvy lawyer

2011-12-20T14:58:16-05:00

This week's Daily Record column is entitled "2011 holiday gifts for the tech-savvy lawyer."

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

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2011 holiday gifts for the tech-savvy lawyer

If you’re in the market for gift ideas for the tech-savvy lawyer in your life, look no further. This holiday season, there are lots of options, whether you’re looking for something inexpensive, such as a book, or are looking to go all out with the purchase of a smart phone or tablet computer. Here are just a few suggestions to get you started.*

First, if you’re in the market for a smart phone, the newly released iPhone 4S is a strong contender because of its built in speech-to-text dictation system. This means that every time the keyboard pops up, whether in an email, text or web search, you have the option to dictate input rather than type it, and your speech is then immediately, and accurately, transcribed for you. Additionally, the Siri Assistant function makes it esy for you to dictate emails,texts, appointments,reminders, web searches, and more. Over time this function should improve, making the iPhone and other smart phones that follow suit, indispensable to the legal practitioner.

Another great gift for the lawyer in your life is a tablet computer. Although there are a number of non-Apple contenders, including the Kindle Fire and the Samsung Galaxy, the iPad is considered by many to be the best tablet available right now. In fact, according to the 2011 ABA Legal Technology Survey, the iPad is used by 89% of lawyers who use a tablet device for work-related tasks.

There a good reason for this statistic--of all tablets, the iPad offers the best selection of work-related apps that make it all the more functional for mobile lawyers. A few non-legal apps worth considering include my PDF annotation app of choice, SignMyPad, my favorite note taking app, Sundry Notes, and Zite, a news reader app that I use nearly every day.

There are also a growing number of iPad-only apps designed specifically for the legal profession, including Fastcase, Trial Pad, Trial Touch, Exhibit A, RTLC: Evidence, Jury Tracker, iJuror, Jury Duty, ExhibitViewiPad, The Deponent App, iPleading, Mobile Transcript for iPad, LawStack, LawBox, and CaseManager.

If you’re looking for iPad accessories, my iPad case of choice is the JavoEdge Axis case. Another option is to buy a case that includes a built-in keyboard--the perfect choice for a lawyer on the go. The Logitech Keyboard Case for the iPad2 comes highly recommended and is one that I’m considering buying in the very near future.

Finally, last but not least, books always make good presents. There are a number of useful technology-related books for lawyers that were published over the last year, including “iPad in One Hour for Lawyers” by Tom Mighell and “Virtual Law Practice: How to Deliver Legal Services Online” by Stephanie Kimbro. Other books of interest include: 1) “Chef Supreme,” a cookbook that is a group effort authored by the spouses of the United States Supreme Court Justices in honor of Martin Ginsburg, Justice Ruth Bader Ginsburg’s late husband, 2) the newly revamped “Solo by Choice,” written by my co-author Carolyn Elefant, and 3) for Harry Potter fans, “Law Made Fun Through Harry Potter,” by my other co-author, Karen Morris.

And, if these suggestions aren’t enough for you, you can always check out The Billable Hour (thebillablehour.com), a website that offers unique gifts specifically tailored to lawyers and legal professionals.

* All of the suggestions above are based on my personal experience and preferences, but rest assured--I haven’t been compensated monetarily by any of the vendors for these recommendations, although a few of the iPad app developers did allow me complimentary access to test out their apps.

When Does Contact Via Social Media Constitute a Crime?

2011-12-14T13:28:00-05:00

This week's Daily Record column is entitled "When Does Contact Via Social Media Constitute a Crime?"

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

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When Does Contact Via Social Media Constitute a Crime?

As the use of social media becomes commonplace, criminal courts are increasingly faced with the task of determining which types of social media contact violate the law.

For that reason alone, it’s important for lawyers to familiarize themselves with social media, since it’s difficult to determine whether conduct occurring via social media sites violates the law in the absence of a basic understanding of social media.

This very scenario resulted in a somewhat unintentionally comical arraignment here in Rochester last May, as explained by reporter Gary Craig in a Democrat and Chronicle article entitled “Threat Alleged Via Facebook ‘Poke.”

As explained in the article, at first, the judge was unable to proceed, but after obtaining information about the inner workings of social media from the peanut gallery, the judge declined to revoke the defendant’s bail and reserved the right to re-consider the issue at a later point in time:

“Federal prosecutors are alleging that a Hell's Angels member threatened a witness - through a Facebook page "poke." The allegations, which run counter to the motorcycle club's "tough-guy" image, were challenged this morning by a federal judge. Beforehand, however, the courtroom became an open forum in which lawyers, a probation officer, a court reporter, and, yes, even a newspaper reporter were asked by the judge for insight into how Facebook privacy settings work. (Only a few - newspaper reporter excluded - could provide answers.)”

Just a month prior to this arraignment, the Town of Webster Justice Court addressed a very similar issue in People v. Welte, 920 N.Y.S.2d 627. At issue in Welte was whether an accusatory instrument was legally sufficient where the defendant was charged with criminal contempt in the second degree and stalking in the fourth degree.

In this case, the complainant, the mother of the defendant’s child, alleged that the she had a “no contact” order of protection against the defendant and that the order required that he have no direct contact with her, either directly or through a third party. It was further alleged that he violated the order of protection by obtaining a copy of her Facebook “friends list” and then communicated with her “friends” via Facebook.

This was an issue of first impression and the court noted that there was little, if any, guidance available. So, Justice Thomas DiSalvo wisely applied precedent regarding comparative offline behaviors that were violative of orders of protection to the online conduct alleged in this case, which makes perfect sense, since online behavior is simply an extension of offline conduct:

“Changes in technology, including the way people communicate, continue to present unique challenges to the courts. As of the date of this decision there are no reported cases of anyone charged with violating an order of protection by accessing Facebook. One must then look to cases wherein defendants are charged with indirectly contacting protected persons by making statement to others.”

After considering applicable case law and applying it to the facts of this case, including the specific language used in the order of protection at issue, Justice DiSalvo concluded that the allegations that the defendant simply contacted friends of the complainant were insufficient to support the charges alleged:

“In the instant case the defendant's action in contacting the complainants friends and family via her “Friends List” would not in the normal course of events violate any provision of law. In addition, the defendant was not directed to stay away from the friends and family of the complainant. Lastly, the accusatory instruments do not allege that the defendant was intentionally attempting to contact the complainant through her friends list, only that the defendant was not to contact her through a third person.”

In other words, as I always say, the medium doesn’t change the message. That a new form of communication is used does not make the contact immediately suspect. Instead, it is important to have a basic understanding of the technology being used and to then examine the content of the message and the context in which is was received in order to ascertain whether the conduct constituted a crime.

Law Made Fun Through Harry Potter's Adventures

2011-12-08T14:56:24-05:00

Last week I mentioned that my co-author, Carolyn Elefant (with whom I co-author Social Media for Lawyers: The Next Frontier), recently updated and revamped her well known primer for solo attorneys, "Solo by Choice: How to Be the Lawyer You've Always Wanted to Be."

This week, I'd like to highlight a new book written by my other co-author, Karen Morris (with whom I co-author Criminal Law in New York). Karen recently published a new book, "Law Made Fun Through Harry Potter's Adventures" along with her co-author Bradley Carroll.

Here's a brief description of the book:

If you love wizards, witches, and Hogwarts, and if you are curious about the law, this book is for you. It explores the intersection of Harry Potter's adventures and the law of our society.

You may have read all the books in the series, repeatedly seen all the movies, and yet never realized that the story includes many, many legal issues. Or you may have identified legal matters in the books but never knew if they were true-to-life.

This book will expand your horizons by introducing you to the law using Harry's world and his adventures as the guide.

I love the concept of this book! If you're a lawyer (or lawyer-wanna-be) who loves Harry Potter or you've got a child who is interested in Harry Potter (and who isn't?) who is also considering whether to be a lawyer, this would be a great present for the holidays. You can buy it here.

Cloud Computing and the Electrical Grid, Part 2

2011-12-05T16:54:18-05:00

This week's Daily Record column is entitled "Cloud Computing and the Electrical Grid, Part 2."

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

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Cloud Computing and the Electrical Grid, Part 2

In last week’s column, we began our examination of the similarities between cloud computing and electricity. This week, we’ll consider how and why the outsourcing of power production occurred and how that process parallels what is happening today as businesses increasingly turn to the cloud for their computing needs.

As we learned last week, in his book, The Big Switch, Nicholas Carr compares the electrical grid to cloud computing. He explains the basis for this comparison: “In the early days of electrification, factories had to build their own generators if they wanted to use the power of electricity— just as today’s companies have had to set their own information systems to use the power of computing.”

So, before addressing the outsourcing of computing power, it’s important to understand how and why power production was outsourced. According to Carr, businesses were initially reluctant to out-source the generation of electricity: “Factory owners, having always supplied their own power, were loath to entrust such a critical function to an outsider.”

Attitudes eventually began to shift, and, as the economic realities became difficult to ignore, factory owners began to outsource power production. As technology improved over time, small, central stations were built, thus allowing electricity to be distributed to private homes and small businesses. Carr describes this process as follows: “Manufacturers came to find that the benefits of buying electricity from a utility went far beyond cheaper kilowatts. By avoiding the purchase of pricey equipment, they reduced their own fixed costs and freed up capital for more productive purposes. They were able to trim their corporate staffs, temper the risk of technology obsolescence and malfunction, and relieve their managers of a major distraction.”

We are in the middle of a very similar sequence of events in regard to business computing and the mass adoption of cloud computing. The fiber-optic cables laid at the turn of the twenty-first century are now providing the bandwidth needed to take advantage of cloud-computing alternatives. Privately owned corporate data centers are underutilized and wasteful. More and more resources are being expended to maintain the status quo. For many companies, continuing to operate legacy computing systems is a complex and costly proposition when compared to the simplicity and cost-effectiveness of outsourcing the same functions to a cloud- computing provider. We have reached the tipping point.

Of course, cloud computing is not the ideal solution for every business. In fact, for some businesses, cloud computing simply does not make sense. That might be the case for some law firms, at least for now. If your firm already has a desktop or server-based practice management, billing, or other type of software system recently put into place that works, then cloud computing may not be the best alternative—at least not right now.

New Edition of "Solo by Choice" by Carolyn Elefant

2011-12-02T14:25:05-05:00

My co-author and good friend, Carolyn Elefant, recently updated and revamped her well known primer for solo attorneys, "Solo by Choice: How to Be the Lawyer You've Always Wanted to Be."

My copy arrived in the mail just a week ago and I haven't yet had a chance to read it in full (although I plan to do so over the holidays), but the original was a wonderful resource for attorneys and from what I've seen of it thus far, this latest version manages to improve on an already great book. In addition to updated material, it includes a separate, smaller book, The Companion Guide, which boasts profiles of a number of solo lawyers and their advice regarding starting and running a solo practice.

Although I haven't yet had a chance to read the latest edition in full and pen a review, a number of others have already done so, should you be interested in what they have to say:

If these reviews are any indication, the latest edition of Solo by Choice is a must-have for any lawyer thinking of hanging up a shingle. So, if you're thinking of starting your own practice, this book is, by all accounts, a wonderful, useful resource. You can buy it here.

Cloud Computing and the Electrical Grid, Part 1

2011-12-01T10:27:34-05:00

This week's Daily Record column is entitled "Cloud Computing and the Electrical Grid, Part 1."

A PDF of this article can be found here and my past Daily Record articles can be accessed here.

*****

Cloud Computing and the Electrical Grid, Part 1

In his book, The Big Switch, Nicholas Carr compares the democratization of electricity to the transformation that is now occurring in computing. He suggests that the history of the production and distribution of electricity directly parallels that which is occurring in computing today. Just like electricity, which was once a resource privately owned and produced by large businesses for their own use and then later became supplied to the masses by public utilities, so too is the processing of information becoming a utility.

The similarities between these two phenomena, electricity and computing, are what makes this comparison so appealing. The greatest similarity is that both need not be produced locally, but rather can be delivered to the end user from any location. Likewise, both innovations—electricity and computing—inarguably changed the way that we live, and each altered the framework of our culture on a fundamental level. Finally, each was shaped by similar economic forces driven by the very essence of the product being delivered, whether electricity or computing power. In other words, the unique nature of each product and the increased demand for access to it necessarily affected its method of delivery.

Of course, as Carr concedes, it’s not a perfect analogy and there are a number of important conceptual differences between information technology and electricity. Nevertheless, the similarities between the two are striking and worth a second look. So, in this column and next week’s column, let’s examine these similarities.

First, both electricity and computing are innovations that greatly altered the business world and our society as a whole. Each has had far-reaching consequences that changed the very structure of our world.

It is indisputable that both cloud computing and electricity have affected our day-to-day lives on a fundamental level. Generally speaking, not a moment goes by that we are not somehow tapped into the electrical grid as part of our day-to-day routine. In fact, it is difficult to imagine modern life without electricity.

We were rudely reminded of this fact on August 14, 2003, when the Northeastern and Northwestern United States and parts of Canada suffered a widespread power outage. Over fifty-five million people were affected by the blackout, which lasted more than twenty-four hours in some areas. It was not until access to electricity was abruptly and unexpectedly removed from our lives that our dependency upon it became apparent. On that hot, humid summer evening, as the sun began to set, people spilled into the streets of their neighborhoods, taking advantage of the last few minutes of daylight. Children played in the streets, rather than watched television. Neighbors gathered on porches, conversing quietly until late in the evening. That evening felt like a time warp, taking us back to a time that existed not that long ago—a time when computers, air conditioning, and the television did not exist. The power outage served as a reminder of how electricity is inexorably intertwined with our daily lives.

Likewise, with the advent of smart phones and the increasing use of mobile devices, the same can be said of computing. If we are not already connected to the information highway, immediate access is just a click away. Smart phones, tablet computers, free WiFi, and the ever-increasing use of personal WiFi hotspots, such as Verizon’s MiFi or Sprint’s personal WiFi, ensure that Internet access is readily available no matter where you are. And if you have access to an Internet connection, then you have access to the cloud. Like electricity, cloud computing soon will be ubiquitous.

Another important and telling similarity between computing and electricity is the way in which the delivery methods of each were affected by economic forces and technological advancements. Like computers, electricity was initially used only by businesses. The companies that required electricity produced the power that was needed to operate its factories and run its manufacturing processes. Accordingly, toward the end of the nineteenth century, most power plants were privately owned by large businesses.

The same can be said regarding computing power, especially in the legal field. Most law offices continue to own and maintain computer hardware on site. Outsourcing computing power is looked upon with suspicion and cloud computing is not yet the norm. But, in my opinion, it will be the norm in the very near future.

Next week we’ll examine how and why the outsourcing of power production occurred and how that process parallels what is happening today as businesses increasingly turn to the cloud for their computing needs.

Why I support the Occupy Wall Street Movement

2011-11-22T19:21:39-05:00

Image by Rob Sheridan via Flickr

The Occupy Wall Street Movement is calling attention to any number of problematic issues confronting our society right now. Many of us see what we want to see in the movement. I see it as rejection of corporate personhood and the undue influence of corporations at all levels of government and society. They've literally got their fingers in the policies that affect every aspect of our lives, touching everything from the food we eat and the value of our homes and bank accounts to the spin the media puts on these issues.

As with any citizen revolt, the first step is to draw attention to the problems, which the protestors have done--quite successfully. They've brought other issues to light as well, including the overzealous police force and the hypocrisy of our government when it comes to supporting protests in the Middle East while squelching them on our own soil.

The unrest and despair of the middle and bottom of the US populace has been brought to light successfully. And, clearly, a lot of people are unhappy with the current state of affairs. Big banks and corporations can only get so many breaks while, during that very same timeframe, the average person suffers financially, barely scraping by for years on end before something has to give.

The next step is to organize, obtain monetary support and locate well-known or dynamic spokespersons, determine agendas and continue to raise consciousness. If this is truly a movement with staying power, that will occur. If it's just a blip in the history of our country, that will be obvious in due time.

But, I for one am proud of the "slackers" and "complainers" who are taking to the streets, exercising their first amendment rights and expressing their dissatisfaction with the status quo. After all, isn't that what this country is all about?

6 year blog anniversary

2011-11-22T17:55:41-05:00

Cover of A Long Strange Trip

Wow. I just realized that yesterday was my 6 year blog anniversary. My very first post was a round up of posts about then-Judge Alito.

What a long strange trip it's been! But what a fun ride! Thanks to everyone for your support and friendship. That's what's made it all worthwhile!

Also, congrats to 2 other bloggers celebrating blog anniversaries: my technology law blogger colleague, Bob Ambrogi (9 years blogging and arguably the original technology law blogger) and my fellow New York law blogger, Eric Turkewitz (5 years).

Is a cloud backlash on the horizon?

2011-11-22T10:21:36-05:00

This week's Daily Record column is entitled "Is a cloud backlash on the horizon?."

A PDF of this article can be found here and my past Daily Record articles can be accessed here.

*****

Is a cloud backlash on the horizon?

In the mid-1990s, email was a fairly new phenomenon and a number of state bar associations wanted nothing to do with it. For example, ethics committees in both South Carolina (Opinion 94-27 1995)) and Iowa (Iowa Ethics Opinion 96-1 1996) concluded that the use of email by lawyers to communicate with clients breached confidentiality unless precautions were taken to prevent interception or client consent acknowledging the risks of using of email was obtained.

A few years later, in 1999, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility helped to reverse the email backlash trend when it issued ABA Formal Opinion No. 99-413. In this opinion, the Committee determined that client consent regarding the use of email was unnecessary.

Thus, the ABA gave its blessing to the use of email for communications with clients. By doing so, the Committee implicitly condoned attorneys’ use of unencrypted electronic communications with their clients. The green light was given for sending confidential communications through an untold number of servers owned by third parties located in any number of geographic regions, and, in many cases, if either the attorney or the client used a web-based email service, the emails and any confidential information contained therein or attached thereto were stored on servers owned by third parties.

For those of you familiar with cloud computing, the above description of the storage of email on third party servers should sound familiar, since web-based email is simply a form of cloud computing--the only difference being that with most cloud computing platforms, the data is sent via a secure connection, and, in many cases, is either encrypted en route or is encrypted while stored on third party servers.

Fast forward to August 2011, when the Committee issued its decision on the use of email in employment cases by clients via employer-owned technologies. In Formal Opinion No. 11-459, the Committee, after reaching the narrow conclusion that in employment cases lawyers have an obligation to warn clients of the risk of discussing the case using employer-owned devices or accounts, then offered the following very broadly-worded proposition, applicable to all type of cases, not just employment matters: “A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, to which a third party may gain access. The risk may vary.”

As I explained in an earlier column (September 5, 2011), this language troubles me since it appears to be a step backwards to the mindset of the mid-1990s email backlash. This apparent shift of focus from the type of information being discussed to the method of communication implies that any type of electronic communication poses a risk simply by virtue of the method of dissemination of information.

So, I was all the more concerned when I read the most recent version of the report accompanying the ABA Commission on Ethics 20/20‘s suggested revisions to the ABA Model Rules of Professional Conduct.

By way of background, the ABA Commission on Ethics 20/20 was established in 2009 (online at www.abanet.org/ethics2020) and the stated purpose of the Commission is to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.” Over the past year, the Commission has released multiple versions of proposed changes to the Rules and has sought input from the legal community prior to issuing its final recommendations.

On pages 6 and 8 of the most recent September report accompanying the latest version of suggested revisions to the Model Rules, when discussing the proposed changes to Model Rule 5.3, which applies to the use on nonlawyer assistance outside of a firm, the Commission states: “As an initial matter, nonlawyer services are provided not only by individuals...but also by entities, such as...“cloud computing” providers...The proposed Comments do not describe the lawyer’s obligation to obtain consent when disclosing confidential information to nonlawyer service providers outside the firm. The Commission concluded that there are many circumstances where such consent is unnecessary. For example, lawyers regularly send documents to outside vendors for scanning or copying, but there is ordinarily no need to obtain the client’s consent to have those services performed. There are, however, other situations where client consent might be advisable or required. The Commission concluded that lawyers would benefit from further clarification of this issue in the form of an opinion from the Standing Committee on Ethics and Professional Responsibility and has requested that the Committee undertake consideration of this issue." (Emphasis added).

In light of my prior suspicions regarding the possibility of a cloud backlash, this new development seems ominous to me. My hope is that I’m wrong, and that if the ABA Committee on Ethics and Responsibility does address the issue of consent when using any form of electronic communication, it concludes that the standard applicable to unencrypted email communications should likewise apply to the use of cloud computing platforms, which are inherently more secure than unencrypted email.

In other words, as was stated in ABA Formal Opinion No. 99-413, understanding gained regarding new technologies like cloud computing should always trump fear: “Although earlier state bar ethics opinions on the use of Internet e-mail tended to find a violation of the state analogues of Rule 1.6 because of the susceptibility to interception by unauthorized persons and, therefore, required express client consent to the use of e-mail, more recent opinions reflecting lawyers' greater understanding of the technology involved approve the use of unencrypted Internet e-mail without express client consent.”