Must-have Apple Watch and iPhone apps for lawyers

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Must-have Apple Watch and iPhone apps for lawyers

The iPhone celebrated its 10-year anniversary this year. In 2017, a decade after its release, it’s still the most popular smartphone with lawyers according to the recently released American Bar Association’s 2017 Legal Technology Survey Report. Of the lawyers surveyed, 96% used smartphones for law-related purposes while away from their office. And, the iPhone was the most popular smartphone by far, with 75% of lawyers surveyed using an iPhone rather an Android.

The Apple Watch, on the other hand, just celebrated its 2-year anniversary. Although I’ve not yet encountered any data on the percentage of lawyers using smartwatches, over time I’ve noticed more and more Watches appearing “in the wild,” including on the wrists of lawyers. So I wasn’t surprised to learn last month that since its launch, more than 30 million Apple Watches have been shipped.

Of course, there are hundreds of thousands of iPhone and Apple Watch apps to choose from, and I’m sure you’ve already got more than a few favorites. But you could always use more, so here are my choices for apps that are must-haves for lawyers.

First, if your practice areas require you to interact with people who speak a different language, a translation app is a must. For your iPhone, consider Speak and Translate, a free app that automatically translates what you say into the spoken word one of of 54 different languages. It also supports text-to-text translations between 117 languages. For your Apple Watch, there’s iTranslate Converse. This app ($4.99/month) allows you to translate conversations in over 100 languages.To use it, you simply speak into your Watch, which then automatically translates your spoken word into the appropriate language.

Another Apple Watch app to consider is Just Press Record ($4.99). This is a very useful app for recording and transcribing conversations and meetings. It allows you to record for an unlimited amount of time and then transfer the recording to your iPhone for transcription.

Another iPhone app that will appeal to lawyers is the free Time & Date Calculator app. Because we spend so much time calculating dates - such as due dates for a motion determining how long ago an incident occurred - a time and date calculator app is a must-have. This app provides a lot of flexibility and built-in tools to help you calculate dates across time zones and even down to the second.

My favorite iPhone scanning app is Scanner Pro. It costs $3.99, and lets you scan a document using your iPhone and then upload it as a PDF. The app also formats the uploaded document with OCR (text recognition) so that you can easily search the text of the document.

And last but not least is the Overcast podcast app for both the iPhone and Apple Watch. Ever since the Serial podcast took the world by storm, lawyers have become huge fans of podcasts. If you’ve jumped on the podcast bandwagon, then you need an intuitive, easy-to-use podcast app like Overcast. It’s a free app that is ad-supported, but you can have an ad-free experience, for $9.99/year. With the iPhone app you can play podcasts right on your phone and the Watch app allows you to choose and control the podcasts playing on your iPhone from across the room.

So there you have it: a few of my favorite iPhone and Apple Watch apps for lawyers. There are plenty more, of course, so don’t let me selections limit you. And if you don’t already own an Apple Watch, what are you waiting for? Add it to your wish list for the holidays. I assure you, you won’t regret it!

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.

 


Virginia Bar Nixes Online Attorney-Client Matching Service

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

In recent months, I’ve written about a handful of ethics opinions from different jurisdictions whereby the ethics committees rejected the use of various online lawyer lawyer directories and lawyer-client matching services such as Avvo, Legal Zoom, and Rocket Lawyer. Virginia now joins their ranks with the issuance of Legal Ethics Opinion 1885.

At issue in this opinion was whether a lawyer may ethically participate in an online attorney-client matching service (ACMS) which operates as follows:

The prospective client selects the advertised legal service and chooses a lawyer identified on ACMS’s website as willing to provide the selected service. The prospective client pays the full amount of the advertised legal fee to the ACMS. Thereafter, the ACMS notifies the selected lawyer of this action, and the lawyer must call the prospective client within a specified period. After speaking to the prospective client, and performing a conflicts check, the lawyer either accepts or declines the proposed representation.

Under this arrangement, if the lawyer accepts the representation, the lawyer agrees to undertake a limited scope representation of the client. Upon completion of the representation, the ACMS deposits the legal fee into the lawyer’s operating account and then electronically withdraws a “marketing fee” from the same account as payment to the ACMS for participation in the matching service.

Although the Legal Ethics Committee did not specify the name of the matching service in the opinion, the setup described is the same as Avvo’s.

Of note, the Committee expressed concern regarding the fact that the ACMS, rather than the lawyer, controlled the attorney fees while the case was pending. According to the Committee, this arrangement circumvented the ethical requirements that lawyers are duty-bound to adhere to:

A Virginia lawyer who participates in the service rendered by the ACMS cannot comply with this Rule of Professional Conduct because she is not, and has never been, the custodian of the advanced fee. She has ceded control of that fee to the ACMS, which decides how to dispose of the client’s fees, both earned and unearned. A lawyer must not accept a legal matter under an arrangement which requires that she delegate the function of holding and disposing of the client’s advanced legal fees to a lay entity. In accepting such representation, the lawyer also violates Rule 1.16(a)(1), which prohibits any representation which would result in the lawyer’s violation of the Rules of Professional Conduct.

The Committee also determined that the business model of the ACMS involved improper legal fee sharing with a non-attorney and was thus unethical, despite the fact that the fee in question was referred to as a “marketing fee”: “Calling the online service’s entitlement a “marketing fee” does not alter the fact that a lawyer is sharing her legal fee with a lay business.”

For those reasons, and others, the Committee concluded that it was impermissible for Virginia attorneys to provide legal services through the ACMS in question:

(A) lawyer who participates in an ACMS using the model identified herein violates Virginia Rules of Professional Conduct because she:

cedes control of her client’s or prospective client’s advanced legal fees to a lay entity;
undertakes representation which will result in a violation of a Rule of Professional Conduct;
relinquishes control of her obligation to refund any unearned fees to a client at the termination of representation;
shares legal fees with a nonlawyer; and
pays another for recommending the lawyer’s services.

This opinion, and the others recently issued, do not preclude lawyers from participating in online lawyer-client matching services. Instead, it’s important to understand both the setup of the particular online service and the ethical rules of your jurisdiction prior to signing up for the service. Read any applicable ethics opinions that have been handed down in your jurisdiction and then carefully choose services with business plans that comport with your ethical obligations.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.


Lawyers and Social Media in 2017

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

Social media has been around for more than a decade. At first lawyers ignored social media, but over time, as it infiltrated our culture, they sat up and took notice. Today, more lawyers than ever use social media. Some use it for networking and marketing, while others interact online to showcase their expertise or gather valuable evidence and information to support their practices, among other reasons.

Regardless of how or why lawyers use social media, the statistics from the 2017 American Bar Association’s Legal Technology Survey Report show that, generally speaking, the number of lawyers using social media has increased year over year, which is in line with the increase in the use of social media by the general population as a whole.

For starters, the use of blogs by law firms is increasing, with large firms leading the way. 71% of firms with 500 or more attorneys maintain at least one blog (compared with 60% in 2016, 58% in 2015, and 62% in 2014), as do 71% of firms with 100-499 attorneys (compared with 52% in 2016, 53% in 2015, and 47% in 2014). Mid-sized firms with 10-49 attorneys were next at 38%, followed by small firms with 2-9 lawyers at 25%, and solo law firms at 15%. The practice areas within firms that were most likely to maintain a blog were employment and labor law at 33%, personal injury law at 32%, and litigation at 31%.

When it came to lawyers who personally maintained a blog for professional reasons, however, the numbers were flipped. Solo lawyers led the way: 15% of solo lawyers blogged, followed by 11% of lawyers from firms of 2-9 lawyers, 11% of lawyers from firms of 100 or more attorneys, and 10% of lawyers from firms of 10-49 attorneys. Of those lawyers, 43% have had a client retain their services because of their blogging efforts.

Moving on to social media, 77% of lawyers surveyed indicated that their firms maintained a social media presence. And, 81% of lawyers reported that they personally used social media for professional purposes.
Interestingly, the age group of lawyers most likely to maintain a personal presence on social media was 40-49 years olds (93%), followed by 40 and under (90%), 50-59 (86%), and 60 or older (73%). Lawyers with the following practice areas were most likely to personally use social media: employment/labor (89%), personal injury (84%), litigation (84%), commercial law (82%), and contracts (81%).

The most popular social network used by lawyers for professional purposes was LinkedIn, with 90% of lawyers reporting that they maintained a profile. Next was Facebook at 40% and then Twitter at 26%. Two lawyer directories were included in the Report, Martindale and Avvo, with only 21% of lawyers reporting that they used each platform.

Of those lawyers who maintained a personal presence on social media, 27% have had a client retain their legal services directly or via referral as a result of their use of social media. Solo and small firms lawyers were the most likely to be retained due to their social media presence. Lawyers in firms of 2-9 lawyers came in first in this regard at 33%, followed by solo lawyers (32%), then lawyers from firms of 10-49 lawyers (22%), and finally lawyers from firms of 100 or more lawyers (18%).

All in all, this year’s report provided lots of interesting data about lawyers’ social media use. Whether you’re a solo lawyer or are part of a much larger law firm, social media can be a valuable tool. My hope is that some of the statistics above will help guide you in making the best use of social networking. The trick is to use social media wisely, and ensure that the time you spend interacting online is both efficient and effective.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.


Significantly More Lawyers Using Cloud Computing in 2017

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

Cloud computing, where data is stored offsite on servers owned by third parties and accessed via an internet connection - has been around for more than a decade now. At first, lawyers have were slow to adopt to the concept even though it offers a host of benefits, including 24/7 access to law firm data, the convenience and flexibility of being able to enter billable time on the go, communicate and collaborate with clients in a secure online environment, and easily manage calendaring and tasks from any internet-enabled device - all at an affordable price.

Despite these benefits, lawyers use of cloud computing initially remained fairly steady at a little over 30% according to the the American Bar Association’s annual Legal Technology Survey Report. However, in 2016 those numbers began to increase and in the 2017 Report that was just released, that percentage increased substantially. These statistics comport with a prediction that I made in one of my Daily Record columns in December 2015:

“Cloud computing will be a different story in 2016. I predict that 2016 is the year that self-reported cloud computing use starts to increase. I make this distinction because over the past 2 years, according to a number of surveys, self-reported cloud computing use by solo and small firm lawyers has remained somewhat stagnant at around ~30%.…But as the concept becomes more familiar over time and lawyers have a better grasp of what cloud computing is and which software platforms and apps are built upon it, more lawyers will begin to report that they use it and/or realize that they’re using it already.”

As I predicted, after remaining stagnant at ~30% from 2013-15, with that percentage increasing to 38% in 2016. Interestingly, this year’s survey results showed a marked increase in the number of lawyers using cloud computing, with that percentage jumping to a whopping 52% for all lawyers in 2017.

Solo and small firm lawyers lead the way in cloud computing use according the 2017 Report. The survey results indicate that 56% of lawyers from firms of 2-9 attorneys used cloud computing (compared to 46% in 2016, 40% in 2015, and 35% in 2014), as did 56% of solo lawyers (compared to 42% in 2016, 37% in 2015, and 35% in 2014), 52% of lawyers from firms of 10-49 attorneys (compared with 33% in 2016, 23% in 2015, and 29% in 2014), and 42% from firms of 100 or more attorneys (compared with 20% in 2016, 17% in 2015, and 19% in 2014).

Lawyers were also asked to share which cloud computing programs they used in their firms. The 3 most popular legal cloud computing software programs used by lawyers were MyCase, NetDocs, and Clio. The 3 most popular non-legal cloud computing programs used by lawyers were Dropbox, iCloud, and Google Docs.

When asked why they chose to use cloud computing software in their law firms, respondents provided a vast array of reasons. The most popular benefit cited was easy browser access from anywhere (73%), followed by 24/7 availability (64%), low cost of entry and predictable monthly expense (48%), robust data back-up and recovery(45%), quick to get up and running (39%), eliminates IT & software management requirements (30%), and better security than can be provided in-office (25%).

It’s clear that we’ve reached the tipping point now that more than half of all lawyers use cloud computing in their law firms. For lawyers who have not yet made the leap to the cloud, the good news it that there are now more legal cloud computing software choices than ever before.

The trick is coo choose a well-funded, reliable vendor with staying power, so make sure to carefully vet each software provider that you’re considering. You can find a list of questions to ask third party vendors here: https://tinyurl.com/Questions4LegalVendors. It’s also important to check online for reviews from current customers. Finally, reputable vendors will also offer free trial access to their software so make sure to take advantage of that option and then test drive a few different software programs before committing.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.


Bitcoin and Blockchain 101 for lawyers

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

Earlier this month, the Nebraska Ethics and Advisory Committee handed down Opinion 17-03, concluding that it was ethical for lawyers to accept Bitcoin as payment for legal services. It was the first opinion to address this issue and most certainly won’t be the last.

No doubt you’ve been hearing more and more about Bitcoin and Blockchain in recent months. And there’s a good reason for that: the use of Bitcoin as a form of payment for services, legal and otherwise, has been increasing significantly.

Unfortunately most people still have no idea what these concepts mean, and lawyers are no exception. However, because their use is increasing, lawyers should at least have a basic understanding of these terms in order to meet their ethical obligation to maintain technology competence. So let’s dive in and learn about “Bitcoin” and “Blockchain”.”

Simply put, Bitcoin is a digital currency or “cryptocurrency” that differs from traditional currency because it is not backed by any country’s central bank or government. Like traditional currency, bitcoins can be traded for goods or services with vendors who accept bitcoins as payment.

To use Bitcoin, you’ll have to sign up for a Bitcoin Wallet app online (online: https://bitcoin.org/en/choose-your-wallet ) or download a Bitcoin Wallet app to your smartphone. Your Wallet acts as a virtual bank account of sorts that allows you to send or receive bitcoins. You can buy bitcoins using your traditional bank account through a Bitcoin Exchange. Then you can spend bitcoins by locating businesses that accept it using a directory like this one.

Blockchain is a public ledger of all digital currency transactions. In other words, Blockchain is essentially a chronological history of bitcoin transactions, and each individual “block” is similar to a bank statement.

Because Bitcoin is an emerging currency that is increasingly being used by consumers, lawyers need to familiarize themselves with it. As the general population begins to use Bitcoin more often, potential legal clients will begin to expect law firms to accept this type of digital currency.

So accepting Bitcoin may very well give you a competitive advantage. Of course, demand will vary by geographic region and practice area. But, as you well know, the more types of payment you accept, the more easily clients can pay your law firm for services rendered. That’s why so many lawyers now allow clients to pay online by making ACH payments or credit card payments. And, just as accepting debit and credit cards online makes you more marketable and appealing to potential and current clients, so too does accepting other forms of payment such as Bitcoin.

Another reason to familiarize yourself with how Bitcoin works is because it may soon begin to affect certain practice areas. For example, lawyers who handle securities law or financial litigation matters may find that their practices are increasingly impacted by Bitcoin.

That’s why now is the perfect time to get up to speed on Bitcoin and Blockchain. Educate yourself and then make an informed decision as to whether accepting Bitcoin makes sense for your law firm. It will be time well spent. You’ll learn something new and, if you decide to accept Bitcoin, you’ll offer potential clients one more reason reason to retain your firm over a competitor.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.


Florida Court on judges and Facebook friends

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

Florida Court on judges and Facebook friends

Courts and ethics committees have been grappling with the issue of judges using social media for years now. At first, the general consensus seemed to be that judges should avoid social media at all costs since any online connections compromised the judge’s appearance of impartiality.

For example in 2012, Florida’s Fourth District Court of Appeal reached this very conclusion in Pierre Domville v. State of Florida, No. 4D12-556 and disqualified a judge from overseeing a case because the judge was Facebook “friends” with the prosecuting attorney.

In my Daily Record article about this case, I disagreed with this conclusion, explaining that: “Judges are human beings with lives outside the courtroom. They have preexisting friendships with attorney colleagues that didn’t cease to end when they became judges. To issue ethics decisions that prevent judges from interacting on social media with the very same lawyers with whom they regularly interact in public is nothing short of ridiculous. Let’s hope Florida remains in the minority on this issue.”

Fortunately, as time advances and social media use permeates our culture, opinions on judges using social media are likewise changing with the times. Case in point: the an opinion recently issued by the Third District Court of Appeal in Florida, which expressly conflicted with the the Fourth District Court of Appeal’s determination in Domville.

At issue in Law Offices of Herssein and Herssein v. United States Automobile Association, No. 3D17-1421 was whether the judge assigned to the matter should be disqualified since he was Facebook “friends” with counsel for the defendant.

In reaching its determination on the issue, the Court noted that a friendship between a judge and an attorney is typically insufficient, in and of itself, to present an inherent conflict of interest: “(W)e note as a general matter, that “allegations of mere ‘friendship’ with an attorney or an interested party have been deemed insufficient to disqualify a judge.”

The Court also wisely acknowledged that the rate at which social media and its many platforms has changed over the years necessarily affected its analysis in the case at hand: “(E)lectronic social media is evolving at an exponential rate. Acceptance as a Facebook ‘friend’ may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook ‘friends’ varies greatly.”

Next, the Court turned to the issue of assessing the nature of a Facebook friendship in the present day and explained that a connection on Facebook does not necessarily indicate a close personal connection: “A random name drawn from a list of Facebook ‘friends’ probably belongs to…(a) casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a ‘friend of a friend;’ or even a local celebrity like a coach. An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.“

As such, the Court concluded that it was departing from the holding in Domville and was declining to disqualify the judge in the case at hand: “Because a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere fact
that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’ On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”

It’s heartening to see courts and ethics committees changing with the times and issuing opinions that reflect the current state of social media and technology. Our society is being transformed by the Internet and technology at a rate never before seen. It’s not always easy to keep up, so kudos to Florida’s Third District Court of Appeal for setting a great example and keeping pace.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.


NYC Bar on lawyers’ ethical obligations at the border

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

NYC Bar on lawyers’ ethical obligations at the border

Since the election, border crossings have been subject to greater scrutiny by border control agents. This presents a problem for lawyers, who often cross the border carrying electronic devices which contain confidential client information that they are duty bound to protect. Fortunately, the New York City Bar Association provided timely guidance last month when it addressed this issue in Formal Opinion 2017-5 (online: https://tinyurl.com/NYCBarBorder).

This opinion considered the extent of an attorney’s ethical obligation to “protect confidential information prior to crossing a U.S. border, during border searches, and thereafter.” The specific factual scenario at issue involved an attorney who was traveling abroad and was carrying a portable electronic device that stored confidential client data. When the attorney attempted to cross into the United States, an authorized U.S. border control agent demanded that the attorney “unlock” the device. The attorney did not have client consent to disclose any confidential information.

The lengthy, in depth opinion covered a variety of issues, including the ethical obligations of lawyers in this scenario, the limits of the lawful authority of border control agents, and the types of data that may be accessed an reviewed.

The primary conclusions reached by the Professional Ethics Committee were:

Before crossing the U.S. border attorneys must undertake reasonable efforts to protect confidential information;
At the U.S. border attorneys may disclose clients’ confidential information only to the extent “reasonably necessary” to respond to a government agent’s claim of lawful authority;
If confidential information is disclosed during a border search, an attorney must promptly inform affected clients.

The Committee explained that “reasonable efforts” to protect client data will vary. This determination will necessarily turn on “the ease or inconvenience of avoiding possession of confidential information; the need to maintain access to the particular information and its sensitivity; the risk of a border inspection; and any other relevant considerations.”

Importantly the Committee wisely acknowledged that there is no bright line test available to help lawyers ascertain what conduct is reasonable. This is because of “the rapid pace of technological development and the disparities between the practices, capabilities, and resources of attorneys… (which make it) difficult or impossible to identify a list of minimum mandatory prophylactic or technical measures for an attorney to adopt before crossing the U.S. border.”

According to the Committee, one way to avoid the possibility of being required to disclose confidential information at the border is to ensure that no data is stored locally on your mobile devices. Encrypting devices or storing data in cloud are two of the recommended options that lawyers who take data with them when they travel internationally should consider: A lawyer…who handles more sensitive information should consider technological solutions that permit secure remote access to confidential information without creating local copies on the device; storing confidential information and communications in secure online locations rather than locally on the device; or using encrypted software to attempt to restrict access to mobile devices.”

Finally, the Committee concluded that if a lawyer is faced with a purportedly lawful request to access confidential client data, “the attorney first must take reasonable measures to prevent disclosure of confidential information, which would include informing the border agent that the device or files in question contain privileged or confidential materials, requesting that such materials not be searched or copied, asking to speak to a superior officer and making any other lawful requests to protect the confidential information from disclosure. To demonstrate that the device contains attorney-client materials, the attorney should carry proof of bar membership, such as an attorney ID card, when crossing a U.S. border.”

All in all, this is a very useful, well-researched opinion that provides a wealth of information for lawyers who travel internationally regarding their ethical obligations. It offers in depth guidance to assist lawyers in understanding their duties and includes detailed recommendations for preserving client confidences. If International travel is on your agenda in the near future, you’d be well advised to read this opinion prior to your trip.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.


Ohio Bar green lights cloud computing and virtual law firms

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

Ohio Bar green lights cloud computing and virtual law firms

Cloud computing - where electronic data is stored offsite on servers owned and maintained by a third party - is quite common in 2017. The proliferation of mobile devices, which are essentially useless in the absence of cloud computing, has helped contribute to this trend. Another relevant factor is the convenience and flexibility offered by web-based computing. When data is stored in the cloud, it can be accessed from anywhere using any internet-enabled device, at any time, day or night.

Because of the many benefits offered by cloud computing, more and more lawyers are using cloud-based software to store and access documents, track time and billing, manage their contacts and calendars, accept online credit card payments from clients, and interact and collaborate with clients, experts, co-counsel, and more. Lawyers are even foregoing brick and mortar law firms and launching virtual law practices.

Because of these developments ethical committees across the country are weighing in on lawyers using cloud computing in their practices, with more than 25 permitting it thus far. In June, Ohio joined their ranks when the Ohio Board of Professional Conduct issued Opinion 2017-05 (online:
http://www.ohioadvop.org/wp-content/uploads/2017/03/Adv.-Op.-2017-5.pdf).

There were 2 issues considered in the opinion: “1) Is it proper for a lawyer to provide legal services exclusively, or almost exclusively, via a “virtual law office?” 2) Is it proper for a lawyer
operating primarily as a “virtual law office” to lease a shared, nonexclusive office space
for purpose of occasional face-to-face meetings with clients, or receiving mail?”

The Board acknowledged that lawyers have a continuing duty to maintain technology competence, explaining that “a VLO lawyer should possess a general knowledge of the security safeguards for the technology used in the lawyer's practice, or in the alternate hire or associate with persons who properly can advise and inform the lawyer.”

The Board confirmed that Ohio lawyers are permitted to use cloud computing technologies to run virtual law practices. In order to comply with their ethical obligations, lawyer must take reasonable efforts to prevent the unauthorized disclosure of confidential client data. Steps lawyers should take include analyzing “ several nonexclusive factors including 1) the sensitivity of the information, 2) the likelihood of disclosure if additional safeguards are not employed, 3) the cost of employing additional safeguards, 4) the difficulty of implementing the safeguards, and 5) the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.”

Lawyers must also vet third party cloud computing providers and confirm that the vendor understands that lawyers have a duty of confidentiality, and must also verify that the vendor will maintain and regularly back up law firm data. Finally lawyers must “(r)equire that the vendor give the lawyer notice of subpoenas for client data, nonauthorized access to the stored data, or other breach of security, and a reliable means of retrieving the data if the agreement is terminated or the vendor goes out of business.”

Next the Board moved on to address a virtual attorney’s obligation to clients. According to the Board, due to the unique nature of virtual law offices, lawyers must discuss the technologies that the firm uses with clients, along with the communication methods available, and ascertain which ones are amenable to the client. These determinations should be memorialized in the client fee agreement.

Finally, the Board turned to the issue of the office setup of virtual law firms, concluding that a physical office is not required in Ohio. However, an office address must be provided on letterhead and elsewhere which can consist of “the lawyer’s home or physical office, the address of shared office space, or a registered post office box.” And, the use of shared office space with both lawyers or nonlawyers is permissible as long as steps are taken to maintain the confidentiality of client files.

Overall, this opinion is in line with those issued in other jurisdictions and takes a reasonable stance on lawyers using cloud computing software, such as law practice management software, as part of a virtual law office setup. Notably, Ohio allows provides lawyers with flexibility when it comes to listing an office address, permitting the use of an post office box, rather than requiring virtual lawyers who have no physical office space to use their home address, as some justifications do.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.


U.S. Supreme Court on First Amendment rights and social media

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

Last month the United States Supreme Court weighed in on the intersection of the First Amendment with social media in Packinham v. North Carolina, No. 15–1194

The Court struck down a North Carolina criminal statute on First Amendment grounds. The law provided that registered sex offenders who used social media sites that could be accessed by children could be convicted of a felony. Although the majority’s holding itself was notable, even more interesting and groundbreaking was the language used by the court in reaching its decision.

At the outset, the majority confirmed the far-reaching impact of the internet and social media on our society, and importantly acknowledged that when issuing rulings related to technology, courts must understand that it is ever advancing and always changing: “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.”

Next, the majority turned to social media and noted the potential it has to amplify each and every person’s message, allowing everyone an opportunity to be heard.”These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”

The majority then engaged in what I consider to be the hallmark of every well-decided opinion involving issues related to internet activities: analogized the online conduct to similar offline conduct:. The majority wisely explained: “The better analogy to this case is Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987), where the Court struck down an ordinance prohibiting any ‘First Amendment activities’ at Los Angeles International Airport because the ordinance covered all manner of protected, nondisruptive behavior including ‘talking and reading, or the wearing of campaign buttons or symbolic clothing,’ id., at 571, 575. If a law prohibiting ‘all protected expression’ at a single airport is not constitutional, id., at 574 (emphasis deleted), it follows with even greater force that the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.”

In comparison, the dissent’s position was a great example of the common knee jerk reaction to new technologies sometimes shown by courts and ethics bars across the country, wherein the dissent exhibited a reluctance to adapt to the changing times: “Cyberspace is different from the physical world, and if it is true, as the Court believes, that ‘we cannot appreciate yet’ the ‘full dimensions and vast potential’ of ‘the Cyber Age,’ ibid., we should proceed circumspectly, taking one step at a time.”

Interestingly, this reticence toward embracing new technologies that was expressed by the dissenting justices, Chief Justice Roberts, Justice Thomas, and Justice Alito, is rarely present when those same justices apply emerging technologies to limit constitutional rights, rather than expand them. For example, no such reluctance has been shown when these same justices diminish the Fourth Amendment rights of American citizens, whether it’s permitting the use of technology to enhance the ability of law enforcement to snoop on U.S. citizens or granting law enforcement unfettered investigational access to data stored online. These countervailing approaches to technology by the more conservative members of the court represent a strange, but not entirely surprising, contradiction of ideology, and it’s a trend that I don’t expect will change anytime soon.

Nicole Black is a Rochester, New York attorney, legal technology journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.

 


Free Legal Research With Google Scholar

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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It is indisputable that the internet and advances in technology have leveled the playing field, making it easier than ever for solo and small firm lawyers to compete with larger firms. Nowhere has this been more apparent than in the field of legal research.

Affordable, or even free, legal research tools can make all the difference for solo and small firm lawyers. The trick is knowing which legal research platforms make the most sense for your law firm. These days, there are more tools available than ever, with Google Scholar leading the pack when it comes to free legal research tools.

It used to be that the only legal research options were either to head over to the closest law library or maintain a costly and space-consuming library on your law firm's premises. Along came electronic research capabilities, but even then, it cost an arm and a leg to subscribe to the two most popular platforms, Westlaw or Lexis. The high subscription costs often made these platforms unpalatable for many solo and small firm attorneys.

But this was back in the good ol’ days when Lexis and Westlaw had cornered the legal research market. How times have changed! The internet age ushered in a new era in legal research, making legal information available to everyone at little to no cost. The Cornell Legal Information Institute was one of the first online platforms to make legal information free and easily accessible to lawyers and legal consumers alike--and it continues to do so to this very day.

But it was the launch of Google Scholar's fully searchable legal case database in November of 2009 that truly revolutionized legal research. Suddenly, lawyers everywhere could search vast caselaw databases for free. Since then, Google Scholar’s research capabilities have improved substantially, making it easier than ever to conduct legal research and check the citations of relevant cases.

So what's covered in Google Scholar's database? A lot. It includes court opinions from all 50 states and all federal courts, and even provides links to relevant law review articles in citation check results. The specific jurisdictions covered are described in Google Scholar’s FAQ as follows: “Google Scholar allows you to search and read published opinions of US state appellate and supreme court cases since 1950, US federal district, appellate, tax and bankruptcy courts since 1923 and US Supreme Court cases since 1791. In addition, it includes citations for cases cited by indexed opinions or journal articles which allows you to find influential cases (usually older or international) which are not yet online or publicly available.”

To use Google Scholar, simply head over to the Google Scholar home page (online: https://scholar.google.com/) and check the "legal documents" category under the search box and select the courts you’d like to search.

From there, searching Google Scholar is as easy as searching Google. Simply enter natural search terms into the search box and in no time flat you’ll have your results. You can then limit the results by court or date. You can further refine your search terms using advanced search functions, and can even enter boolean search terms. Google Scholar also includes the ability to perform fairly sophisticated cite checks of caselaw, which include information on the relevance of citing cases to a specific legal issue.
Every year since its roll out, Google Scholar’s legal research capabilities have improved and new features have been added, with the end result being a robust, easy-to-use legal research tool. It may not have the bells and whistles of some of its more costly competitors, but for lawyers seeking to conduct legal research on a budget, it’s worth looking into.

Interested in learning more about using Google Scholar for legal research? You can find a full tutorial with screenshots here.

Nicole Black is a Rochester, New York attorney, legal technology journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.


New Jersey judge permits service via Facebook

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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New Jersey judge permits service via Facebook

If you’re a litigator, then I can only assume that by now you fully understand how social media platforms impact your practice. At this point in time, one way or another, you’ve undoubtedly encountered social media issues while representing your clients. Whether it’s crimes being committed using social media platforms, mining social media for evidence, researching jurors on social media, or using social media as a method for service of process, social media crops up in a multitude of ways during the litigation process.

This trend began in approximately 2010, when social media use began to appear in criminal cases as the basis for criminal acts. From there it took a few years before lawyers began to affirmatively use social media on their client’s behalf during litigation matters. I’ve been tracking those trends for some time now, including the use of social media platforms for service of process.

For example, in October 2014, I wrote about two judges who had issued orders permitting service upon litigants using Facebook: a U.S. Magistrate judge for the Eastern District of Virginia (Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear) and a New York family court judge (Noel B. v. Anna Maria A., Docket No. F-00787-13/14B). Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case (Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096)).

Last year, I wrote about Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), where United States Magistrate Judge for the Eastern District of New York, Cheryl L. Pollak permitted an alternate method of service via Facebook, but also required the plaintiff to attempt to effect service using other methods as well.

The issue was addressed even more recently in Axberg v. Langston, Docket No. MRS-C-157 (2016). In this post-adoption case, as reported in the New Jersey Law Journal, Judge Stephan C. Hansbury, Morris County P.J. (ret.), considered the issue of whether service of process could be effected via social media - specifically using Facebook.

In this case, the plaintiffs filed an order to show cause and a verified complaint seeking to restrain the defendant, the purported biological father of their adopted son, from contacting them and/or their son on social media. According to the complaint, the defendant had reached out to their son, his sister, and his adoptive father on Facebook and Instagram, claiming to be his biological father.

After unsuccessfully attempting to serve the defendant via more traditional methods, including regular and certified mail, the plaintiffs sought permission to serve the defendant using Facebook. In reaching its decision, the Court applied the 3-prong test established in Baidoo (above) and determined that the Facebook page in question was the defendant’s, that it appeared to be regularly updated, and due to the unique nature of this case, no other supplemental service method was necessary. Accordingly, the Court concluded that service via Facebook, and Facebook alone, was a sufficient method of service.

Following the Court’s decision, service of process using Facebook was thus accomplished and the defendant soon replied, sending a private message to the plaintiffs counsel on Facebook indicating that he’d received it, stating “I’ll see you in court.” He subsequently appeared via telephone on the return date of the matter.

Another court, another day. Service of process using social media platforms is becoming increasingly common, which is not unexpected. After all, the practice of law can only resist societal changes for so long. Social media is a force to be reckoned with and it’s not going away. Rather than turn a blind eye to it, learn about it and use it to the benefit of your clients. After all, knowledge is power and you have an obligation to provide zealous representation to your clients - something that is impossible to do if you’re not adequately armed with the tools needed to do so.

Nicole Black is a Rochester, New York attorney, legal technology journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.

 

 


NYSBA issues updated social media guidelines for lawyers

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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NYSBA issues updated social media guidelines for lawyers

I’ve always believed that social media use by lawyers should be treated no differently than any other type of communication by lawyers. After all, online interactions are simply an extension of offline interactions, and the medium doesn’t change the message. For that reason, it has pained me to see so many ethics committees issuing so many opinions over the years on the many perceived nuances of online communication by lawyers.

Many of these opinions are simply unnecessary and constitute knee jerk reactions to a new way of interacting. And many are based on faulty reasoning grounded in the assumption that online communications are somehow different than those occurring offline and thus warrant the application of new, more stringent standards. Others, however, necessarily address issues that are unique to online communications. One good example is opinions that address the issue of whether the passive notifications received by LinkedIn users (who also happen to be jurors) which indicate that a lawyer has viewed their profile constitute impermissible juror contact.

Regardless of whether I agree with the sheer volume of opinions or their merit, the end result is that lawyers are left to their own devices when it comes to reviewing the many opinions and deciphering which types of on online interactions are ethical. Navigating the maze of ethics opinions can be a difficult and overwhelming task and for that reason, some attorneys simply choose to forego using social media altogether.

That’s where the recently updated “Social Media Ethics Guidelines,” issued by the the Commercial and Federal Litigation Section of the New York State Bar Association, come in.


These guidelines were first released in 2014 with the intent to provide lawyers with guidance in navigating the many ethical issues encountered when using social media in a professional context. The Guidelines were revised in 2015 and, then, just 2 weeks ago, a newly updated version of the Guidelines was released.

Some of the more notable revisions include:

  • Attorney Competence (§ 1.A) reflects that 27 states have adopted some duty of technical competence.
  • Maintaining Client Confidences (§ 5.E) offers information on how an attorney can respond to online reviews as well as services that offer to import contacts.
  • Positional Conflicts (§2.E) is new and discusses DC Bar Ethics Opinion 370 regarding whether social media posts adverse to a client’s interest may present a conflict of interest. The revised appendix describes social media terminology and some of the more popular social media platforms.
  • The newly added social media definitions are particularly useful, and I have to admit that although I’ve always considered myself to be more social media-savvy than most lawyers (having written a book on lawyers using social media), even I learned a few things after reading through the definitions.

So, if you haven’t yet read the updated Guidelines, make sure to set aside some time in order to do so. They provide a very useful, extensive round up of how ethics committees across the country have approached lawyers using social media. The Guidelines are a great resource that will serve as a handy reference guide for your professional online social media activities.

 

Nicole Black is a Rochester, New York attorney, legal technology journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.

 


Judges weigh in on researching jurors online

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Judges Weigh In On Researching Jurors Online

Now that social media is simply part of our day-to-day lives, it’s no surprise that it’s also appearing in legal cases. Lawyers routinely seek to access social media data during the discovery phase of trial, mine social media for evidence to use during trial, and research jurors prior to voir dire.

In the past I’ve covered the various ethics opinions regarding lawyers mining social media for evidence and researching jurors using social media. New York, D.C., Pennsylvania, Oregon, and quite a few other jurisdictions have addressed these issues. But it’s not just ethics committees that are weighing in on social media use in litigation. Many Judges are throwing their hats in the ring as well and are establishing procedures for their courtrooms that address the use of social media evidence at trial.

Oftentimes judges recognize that online research alone isn’t necessarily problematic. For example, in 2014 it was reported in a Tampa Bay Times article that in a ruling issued by Circuit Judge Anthony Rondolino, he indicated that allowing parties to research jurors online and then share any relevant information obtained with the court could help to avoid mistrials. His rationale was based on the premise that jurors don’t always disclose relevant information during voir dire, although the failure to do so isn’t necessarily intentional and can sometimes arise from a failure to understand the questions being posed to them.

Other judges are more wary of online research when it comes to jurors, such as U.S. District Judge Rodney Gilstrap of the Eastern District of Texas. Earlier this year he issued a standing order that prohibits “all attorneys, parties, and their respective employees and agents, including jury consultants rom contacting jurors through social media.” However, simply researching jurors by viewing public profiles was permitted, even where jurors might receive passive notifications of the viewing of their profile: “(T)hey are not prohibited from conducting or causing another to conduct any
type of online investigation merely because a juror or potential juror may become aware that his or her ESM is being reviewed. For example, lawyers are not prohibited from reviewing the LinkedIn accounts of jurors or potential jurors even if network settings would alert that juror or potential juror to the fact that a lawyer from the case has reviewed his or her LinkedIn account.”

And last, but not least, in 20116, the U.S. District Court for the Northern District of New York, adopted a local rule in early 2016 that allows lawyers and their agents to research jurors using social media so long as the information viewed is publicly accessible. However, the rule provides that passive notifications indicating that a specific person has viewed a juror’s social media profile are not permitted. Importantly, the rule provides that “If an attorney becomes aware of a juror’s posting on the internet about the case in which she or he is serving, the attorney shall report the issue to the court.”

So, the times they are indeed a’changin’, my friends. Social media is here to stay and in many cases, that’s not a bad thing. It can be a valuable tool for litigation purposes, as long as you are aware of the applicable ethical guidelines and rules of court. So use social media to your clients’ advantage, but make sure to use it wisely.

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


ABA Issues New Opinion On Secure Online Communication With Clients

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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In 1999, the American Bar Association issued Formal Opinion 99-413, which permitted lawyers to use email to communicate with clients. In that opinion, the ABA Committee on Ethics and Professional Responsibility concluded: “Lawyers have a reasonable expectation of privacy in

communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet,

despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.”

Times have most certainly changed since 1999. So, too, has technology. While email used to be the best method available for electronic communication with legal clients, technology has advanced such that the security issues inherent in email make it a less desirable way to communicate with clients compared to alternative and far more secure online communication tools.

That’s why the ABA issued Formal Opinion 477 on May 11, 2017. In this opinion, the Committee concluded that because there are more secure electronic communication methods available in 2017, lawyers may want to consider avoiding email for many client communications and use other, more secure electronic methods instead.

At the outset, the Committee acknowledged that today most lawyers “primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients” including “desktop, laptop and notebook computers, tablet devices, smartphones, and cloud resource and storage locations.”

Next, the Committee noted that pursuant to an amendment to the Model Rules adopted by the ABA in 2012, lawyers now have a continuing duty to stay abreast of changes in technology. As part of that duty lawyers must take reasonable efforts to protect confidential client information from disclosure and in doing so must assess “the methods of electronic communications employed, and the types of available security measures for each method.” Furthermore, when dealing with highly sensitive confidential client information, lawyers must “inform the client of the risks involved” and advise that either extra measures should be taken to protect email transmissions or that email should be avoided altogether.

Factors to be considered when determining the appropriate way to communicate with clients in each case include:

  • the sensitivity of the information,
  • the likelihood of disclosure if additional safeguards are not employed,
  • the cost of employing additional safeguards,
  • the difficulty of implementing the safeguards, and
  • the extent to which the safeguards adversely affect the lawyer’s ability to represent

clients (e.g., by making a device or important piece of software excessively difficult to use).

The obligation to evaluate and choose appropriate technology to protect client data may be outsourced “through association with another lawyer or expert, or by education.”

Importantly, the Committee emphasized that “(a) fact-based analysis means that particularly strong protective measures, like encryption, are warranted in some circumstances.” The Committee explained that as long as lawyers have implemented basic and reasonably available methods of common electronic security measures, using unencrypted email may be appropriate for routine or low sensitivity communications, but that due to “cyber-threats and (the fact that) the proliferation of electronic communications devices have changed the landscape…it is not always reasonable to rely on the use of unencrypted email.” As such, lawyers must assess how to communicate about client matters on a case-by case basis.

The Committee recommended that lawyers take certain steps when making this assessment for each case: 1) understand the nature of the threat, 2) understand how client confidential information is transmitted and where it is stored, and 3) understand and use reasonable electronic security measures, 4) determine how electronic communications about client matters should be protected, 5) label client confidential information, 6) train lawyers ad non lawyer assistants in technology and information security, and 7) conduct due diligence on vendors providing communication technology.

The Committee concluded that the duty to vet the security measures taken by each third party provider that stores a law firm’s confidential client data is a continuing one and lawyers must “periodically reassess these factors to confirm that the lawyer’s actions continue to comply with the ethical obligations and have not been rendered inadequate by changes in circumstances or technology.”

Of note, the Committee explained that client matters involving proprietary information such as “industrial designs, mergers and acquisitions or trade secrets, and industries like healthcare, banking, defense or education, may present a higher risk of data theft” and as such reasonable efforts in those in higher risk scenarios generally requires that greater effort be taken to protect client data than simply using unsecure email to communicate. The Committee suggested a number of more secure alternatives including using secure Wi-Fi, a Virtual Private Network, and a secure Internet portal such as those routinely included with law practice management software.

The Committee clarified that cloud-based online collaboration portals are a viable option to ensure secure communication: “(I)f client information is of sufficient sensitivity, a lawyer should encrypt the transmission and determine how to do so to sufficiently protect it, and consider the use of password protection for any attachments. Alternatively, lawyers can consider the use of a well vetted and secure third-party cloud based file storage system to exchange documents normally attached to emails.”

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


When worlds collide – A tweet constitutes an assault

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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When Worlds Collide: A Tweet Constitutes An Assault

Sometimes a tweet is just a tweet in the online world, and other times it can amount to an assault in the “real” world. At least, that’s the difficult lesson learned by John Rayne Rivello, a Maryland man who was indicted in Texas and charged with the hate crime, Aggravated Assault with a Deadly Weapon, in violation of PC 22.02(a)(2).

In December 2016, Rivello allegedly sent a tweet to Kurt Eichenwald, a senior reporter for Newsweek, following Eichenwald’s appearance on Fox News. The tweet included an image with the accompanying text, “YOU DESERVE A SEIZURE FOR YOUR POSTS.”

Eichenwald suffered from epilepsy, something he’d shared publicly in the past. The image that accompanied the tweet was an animated GIF of a strobe light intended to trigger seizures in those who were susceptible to them. The tweet had the intended effect and caused Eichenwald to suffer from an 8-minute seizure, after which he was unable to speak and was then reportedly incapacitated for a number of days.

As a result of the incident, an investigation was conducted resulting in Rivello’s indictment and arrest last week. This case is interesting for two reasons. First, the allegations in this case represent a unique intersection of technology with criminal conduct. Second, the investigation that was conducted to support the charges involved law enforcement access to Rivello’s Twitter and iCloud accounts.

Turning to the allegations, they are unusual in that the “deadly weapon” is considered to be Rivello’s hands, electronic devices, and the content of the tweet he sent. Each item alone is arguably harmless, but according to the indictment, when combined within the context of this incident, became a deadly weapon with which Rivello knowingly caused injury.

Specifically, the Grand Jury’s indictment alleged that on December 16, 2016, he “intentionally, knowingly, and recklessly caused bodily injury to Kurt Eichenwald, a disabled person…by inducing a seizure with an animated strobe image, knowing that the complainant was susceptible to seizures and that such animations are capable of causing seizures, and said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF), and an Electronic Device and Hands, during the commission of the assault…And further that the Defendant did intentionally select said Kurt Eichnewald primarily because of the said Defendant’s prejudice or bias against a group identified by race, ancestry, or religion, namely: persons of Jewish faith or descent.”

The investigation conducted by law enforcement is also noteworthy since it represents an increasing trend in today’s technology-infused world: digital footprints are becoming a regular source of evidence in criminal cases. In this case, search warrants were issued allowing the police to review Rivello’s Twitter and iCloud accounts. Evidence obtained included direct messages sent by Rivello to other Twitter users including that he knew that Eichenwald had epilepsy, intended for the tweet with the strobe GIF to trigger an epileptic seizure, and that the hoped the seizure would kill Eichenwald.

After reviewing files stored in his iCloud account, investigators discovered research regarding the victim, epilepsy seizure triggers, and the progress of the investigation into the attack on Eichenwald. The evidence obtained from Rivello’s online accounts established that his sent the Tweet and helped to show the necessary intent and his motive to harm Eichenwald.

This indictment is clear evidence that the times they are a’changin’, with the online world and the offline world rapidly merging. The influence of social media and technology on our day-to-day lives is inescapable and cannot be ignored. What was once viewed as a fad is now part of the very fabric of our world and lawyers who ignore the effects of technology do so at their own peril.

It’s undeniable: the online world impacts your cases, your clients, and your practice. Embrace it or be left behind.

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