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Slides From My Keynote Last Week

Last week I spoke at the LexisNexis 2011 Practice Management Annual Conference, which was held in Orlando, Florida.

I discussed the evolution of technology since 1995, with a focus on mobile and Internet-based technology, including cloud computing and social media. I explained how these rapid changes, many of which have occurred in the last 6 years, are affecting the practice of law and why staying abreast of technology changes will help attorneys to better represent their clients.

You can view the slide show below. If you would like to view my speaker's notes as you navigate this slide deck, head over to the Slide Share website and click on the tab "Speaker Notes."

 

Thanks for taking the time to view this slide deck!
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Pennsylvania Ethics Committee on Lawyers Using Cloud Computing

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This week's Daily Record column is entitled "Pennsylvania Ethics Committee on Lawyers Using Cloud Computing."

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

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Pennsylvania Ethics Committee on Lawyers Using Cloud Computing

Is it ethical for lawyers to store and access confidential client data in the “Cloud” using computers or mobile devices? As more lawyers become familiar with, and use, these technologies, this question is slowly, but surely, being asked of ethics committees across the country.

As I’ve discussed in prior columns, both Florida and New York ethics committees have addressed this issue and each concluded that lawyers can use cloud computing services to store confidential client data as long as reasonable steps are taken to ensure that client confidentiality is maintained. (See, Professional Ethics Committee of the Florida Bar Op. 10-2 (2011) and New York State Bar Association’s Committee on Professional Ethics Op. 842 (2010)).

The American Bar Association’s Committee on Ethics 20/20 is also in the process of tackling this issue and has proposed that Model Rule 1.6, which addresses lawyers’ duty to maintain confidential information, be revised to add the following section to the rule, which mirrors the language used by the Florida and New York ethics committees:  (c) A lawyer shall make reasonable efforts to prevent the inadvertent  disclosure of, or unauthorized access to, information relating to the representation of a    client.

Meanwhile, the North Carolina Bar has not yet issued a formal opinion and continues to struggle with this issue, having issued two proposed opinions on the ethical obligations of lawyers who choose to use cloud computing platforms in their practice, the most recent of which is the North Carolina Bar Proposed 2011 Formal Ethics Opinion 6 (2011).

And, in January of 2011, the Pennsylvania Bar Association chimed in on the subject, issuing Ethics Opinion No. 2010-060, which addressed two inquiries: (1) Can an attorney ethically allow client confidential material to be stored in “the cloud”by the software manufacturer? and (2) Are there ethical considerations regarding the use of Smartphones, in general and particularly in regard to those that are synchronized through “the cloud” and data can be remotely removed through the phone?

The conclusion reached was quite similar to the New York and Florida committee’s conclusions:  Yes, lawyers may use these technologies, provided that they take appropriate measures to ensure that the confidentiality of client data is not breached.

The author of the opinion explained that taking steps to maintain confidentiality was of paramount importance: “Because cloud computing refers to “offsite” storage of client data, lawyers must be aware of and take appropriate precautions to prevent compromising client confidentiality, i.e., attorneys must take great care to assure that any data stored offsite remains confidential and not accessible to anyone other than those persons authorized by their firms.”

The opinion also provided lawyers with a useful list of issues to consider and steps to take when choosing and utilizing cloud computing platforms. Importantly, it was noted that these security measures are equally applicable to the traditional law office setting: “(A)n attorney using cloud computing is under the same obligation to maintain client confidentiality as is the attorney who uses non-online documents management...” (and) “the (security) measures...will vary based upon the technology and infrastructure of each office.”

The suggested issues to factor into a decision to move to the Cloud include:

  • Backing up data to allow the firm to restore data that has been lost, corrupted, or accidentally deleted;
  • Installing a firewall to limit access to the firm’s network;
  • Limiting information that is provided to others to what is 
required/needed/requested;
  • Avoiding inadvertent disclosure of information such as Social Security 
Numbers;
  • Verifying the identity of individuals to whom the attorney provides 
confidential information;
  • Refusing to disclose confidential information to unauthorized individuals 
(including family members and friends) without client permission;
  • Protecting electronic records containing confidential data, including backups, by encrypting the confidential data;
  • Implementing electronic audit trail procedures to monitor who is accessing the data; and
  • Creating plans to address security breaches, including the identification of persons to be notified about any known or suspected security breach involving confidential data.

All in all, the Pennsylvania opinion is an example of a forward-thinking application of existing rules and allows lawyers the flexibility to determine which tools are most appropriate for their particular practice. This decision is wisely based on the premise that although the tools may be changing, lawyers’ ethical obligations remain the same. New technologies don’t warrant new, more stringent rules or requirements, but rather require the careful, thoughtful application of existing rules while leaving lawyers a wide berth to take advantage of emerging tools and technologies.

Nicole Black is a Rochester, New York attorney. 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 early 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.
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Lawyers' Collective "Milkshake Mistake"

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This week's Daily Record column is entitled "Lawyers' Collective "Milkshake Mistake."

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

*****

Lawyers' Collective "Milkshake Mistake"

We’ve all enjoyed a cold milkshake on a hot day, but it turns out that milkshakes are far more than a dessert. Milkshakes, like most products, including legal services, are whatever the consumer needs them to be.

Clay Shirky, noted author and Internet and technology pundit, examines this idea in his book, Cognitive Surplus and Generosity in a Connected Age. In his book, Shirky, (who will be the a keynote speaker at the upcoming Social Media and Communication Symposium at RIT on September 29th), describes how Gerald Berstell, a researcher hired by McDonalds, was tasked to improve the sales of milkshakes.

Unlike the other researchers, rather than focusing on improving the product, Berstell focused on the consumer’s expectations and needs by tracking customers’ purchasing habits. As he did so, he noticed something interesting. Most milkshakes were purchased in the early morning by commuters. Even though McDonald’s marketed the milkshakes as a dessert, its customers disagreed. For most customers, milkshakes were a neat, tasty, convenient and easily transportable breakfast meal--more so than any of McDonald’s other breakfast options.

As Shirky explained: “Not one conventional breakfast item (fit the) bill, and so without regard for the sacred traditions of the morning meal, those customers were hiring the milkshake to do the job they needed done.”

Shirky referred to this phenomenon as “milkshake mistakes,” something that occurs when an industry adopts a narrow view of its products, while simultaneously ignoring the needs and expectations of its customers.

Shirky then turned to traditional media and applied the “milkshake mistake” concept to the changing viewing and leisure habits of consumers. He described how people are now foregoing television to create and consume content online. In other words, rather than watch shows or read articles created by “professionals”, many consumers are instead choosing to spend their leisure time watching YouTube videos or reading blog posts created by “amateurs.”

After noting that this change in viewing habits occurred in record time, he then suggested that perhaps the traditional media industry had never truly understood the needs of its customers: “But what if, all this time, providing professional content isn’t the only job we’ve been hiring the media to do? What if we’ve also been hiring it to make us feel connected, engaged and just less lonely?”

Most lawyers should be able to relate to this concept. How many times has this happened to you? After explaining to a potential client that litigation would cost more than the amount at issue, your potential client retorts: “I don’t care! It’s the principle of the matter!”

This is because although lawyers are purportedly hired to solve legal problems, we’re also hired to make the client feel better about their situation. In many cases the primary underlying motivations behind seeking legal counsel include reducing anxiety, mending bruised egos, satiating anger, achieving justice, and even obtaining revenge against perceived wrongdoers, no matter what the cost.

In other words, lawyers tend to overlook their client’s multi-faceted needs and assume that they’re only being hired for their legal expertise. For many potential clients, that’s simply not the case, and if there is an easier, cheaper way to ease their worries and accomplish their goals that isn’t as intimidating as hiring a lawyer, they’ll use it.  And, just as is the case with traditional media, online tools are a disruptive force that provide consumers with a variety of newfound ways to meet their needs through legal self-help.

The Internet offers legal consumers more alternatives to traditional legal services than ever before--smack dab in the middle of an economic downturn during which the average citizen is highly motivated to solve their own problems and avoid costly legal bills. Whether it’s virtual law offices, legal forms from LegalZoom or RocketLawyer, legal forms for uncontested divorces provided by state court websites,  or crowdsourced legal advice from LawPivot, more and more online platforms are emerging that offer an increasingly vast selection of low cost tools to assist legal consumers with commonly encountered problems.

Of course lawyers serve an important function in our society and I’m not suggesting that all forms of traditional legal services will ever be replaced by online tools or platforms. But the legal profession must avoid making the “milkshake mistake.” The delivery of legal services is changing and consumers now have more choices when it comes to meeting their needs. Astute, forward-thinking lawyers will recognize, not ignore this phenomenon, and find ways to position their law practice to meet the needs of legal consumers in the midst of this rapidly changing technological landscape.

If you’d like to hear more from Shirky and others (Nicole Black will be speaking on a panel as well) the RIT Social Media and Communication Symposium will be held on Sept. 29, 2011 and the cost is $35 for the day (www.rit.edu).

Nicole Black is a Rochester, New York attorney. 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 early 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.

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Technology Changing at Lightning-Fast Speeds

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This week's Daily Record column is entitled "Technology Changing at Lightning-Fast Speeds."

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

*****

Technology Changing at Lightning-Fast Speeds

In last week’s column, I expressed alarm regarding what I perceived to be a shift in thinking on the issue of electronic communications on the part of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility in Formal Opinion No. 11-459. Prior decisions, regarding communications with clients, such as  ABA Formal Opinion No. 99-413, focused on the sensitivity of the issues being discussed when determining the most appropriate and secure method of communication.

However, in Op. No. 11-459 the Committee appeared to depart from its prior reasoning when it stated that “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.”  This conclusion implies that any type of electronic communication poses a risk, and a corresponding duty to warn, simply by virtue of the method of dissemination of information.

I don’t believe that the Committee’s intent was to discourage attorneys from using electronic communications with their clients. Far from it. Instead, I believe this broadly worded conclusion was an unintentional oversight. However, its effect is far reaching since the Committee’s conclusions, while not binding, are used as a reference by state ethics committees and thus set the tone on matters of ethics nationwide.

This arguably unintentional message sent to attorneys--that electronic methods of communication are inherently suspect--could not have come at a more pivotal time. Our profession is at a crossroads and any message that discourages adaptation to new technologies could have drastic effects, both short term and long term.

This is because technology is advancing at a rate never before seen. Think back to our lives just a decade ago, as we pass the 10th anniversary of September 11th. That horrible day that is forever etched into our collective conscious also serves as a technological benchmark. Recall that there were no smart phones, no cell phones with built in cameras or video capabilities, no ability to instantaneously provide updates and information via tweets or status messages.

For many of us, the past 10 years passed unbelievably quickly and it seems as if September 11th happened just yesterday. And yet, since then, so much about our day-to-day lives has changed. And much of that change accelerated at an incredible, never-before-seen rate during the latter half of the decade.

By way of perspective, consider this timeline:

February 2004--Facebook launched as student only site
April 2005--Gmail launched in private beta
June 2006--Google Spreadsheets, Google’s first non-email cloud product, launched
July 2006--Twitter launched
August 2006--Amazon EC2 cloud product released in private beta
September 2006--Facebook opened to the public. Its number of users increased from 12 million in 12/06 to 50 million in 10/07
June 2007--iPhone released in US
November 2007--Kindle released in US
July 2008--Apple launches the App Store
April 2010--iPad released in US
June 28, 2011--Google Plus launched in private beta and had more than 25 million users within 4 weeks

Over the last 7 years, technology has transformed our personal and professional lives.  New, extremely profitable businesses exist that weren’t even conceivable just 5 years ago. Think about it--the rate of change has been mind boggling and unlike anything we’ve ever experienced.

Now, social media and smart phones are ubiquitous. Mobile apps, a concept that didn’t even exist until 3 years ago, will bring in more than $15 billion in revenue this year. The first Kindle wasn’t released until the end of 2007, but Amazon’s eBook store will generate more than $5 billion in revenue by the end of 2011 and 15% of Simon  & Schuster’s revenue comes from eBooks.

More than 30 million iPads have been sold in little over a year. National news broadcasts regularly include references to tweets and Facebook pages. News breaks on Twitter and Google’s search engine tracks the flu more quickly and accurately than does the Center for Disease Control.

Finally, while it took radio 38 years to reach 50 millions users, television 13 years, and Facebook 3 1/2 years, it took Google Plus just 4 weeks to reach 25 million users.

It is indisputable--change is occurring at an incredible rate and this exponential change is affecting every aspect of our lives. The legal field is not exempt from this societal transformation and leaders in the legal field would be wise to acknowledge the level of change that is occurring, understand it, accept it and encourage lawyers to do the same. Because ethics committees set the tone, it is therefore imperative that they lead the way by issuing thoughtful and carefully worded opinions that provide lawyers with much-needed guidance in navigating this new and ever-changing world. To do anything else would be a disservice to the profession.

Nicole Black is a Rochester, New York attorney. 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 early 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.

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Emails between lawyer and client and the risk of third party access

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This week's Daily Record column is entitled "Emails between lawyer and client and the risk of third party access."

My past Daily Record articles can be accessed here.

*****

Emails between lawyer and client and the risk of third party access

Do lawyers have an ethical obligation to warn clients of the risk of third party access to all types of electronic communication between attorney and client? This question was addressed last month in an ethics decision, Formal Opinion No. 11-459, issued by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility.

It’s an interesting question given that lawyers have been sending confidential client documents and data via unencrypted email for over a decade and yet this specific question is just now being raised. That this issue is suddenly coming to light in 2011 is particularly surprising given that ethics committees in multiple jurisdictions concluded many years ago that, in most cases, attorneys may use unencrypted e-mail to communicate with clients without violating their ethical obligations to maintain client confidentiality. See, for example, American Bar Association Formal Opinion No. 99-413, N.Y. State 709 (1998), State of Maine Ethics Opinion #195 (2008), Ohio Ethics Opinion No. 99-2 (April 9, 1999), Hawaii Ethics Opinion No. 40 (April 26, 2001), Utah Ethics Opinion No. 00-01 (March 9, 2000), Florida Ethics Opinion No. 00-4 (July 15, 2000), Delaware Ethics Opinion No. 2001-2 (2001), and Virginia Ethics Opinion No. 1791 (December 22, 2003).

In last month’s decision, the Committee analyzed the issue of third party access to email within the context of a hypothetical employment claim wherein the employer accessed an employee’s arguably privileged emails with counsel, which were sent using either a work email account or company-owned devices.

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, the Committee 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. Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.”

After re-reading this language and the entire decision multiple times, I still can’t decide if this is a step forward or a step back. Is the Committee implicitly supporting cloud computing platforms that offer encrypted communication, as some of my colleagues have suggested, or is it actually suggesting that any time an attorney uses a form of electronic communication to converse with a client, the client must be warned of the risk of third party interception? If the latter interpretation is correct, then I find this decision to be particularly problematic since the Committee appears to be treating electronic communications differently than other types of communication, even though, regardless of the form of communication, there is always a risk of third party interception. No form of communication is 100% secure.
 
In fact, in 1999, in ABA Formal Opinion No. 99-413, cited above and referenced in last month’s decision, the Committee acknowledged as much, concluding that client consent regarding the use of email was unnecessary: “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.”

However, in Op. 99-413, lawyers were cautioned to exercise extreme care and consider taking extra precautions when transmitting highly sensitive information: “The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet e-mail. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation.” In other words, an attorney’s obligation centered around the type of information being discussed, not the mode of transmission. The more sensitive the content of the discussion, the more care needed to be taken to reduce unintended disclosure to third parties.

Returning to last month’s decision, it makes sense when limited the hypothetical employment litigation scenario and the risks posed when attorney-client discussions occur via employer accounts or devices. But I am alarmed by the (perhaps unintended) consequences of the Committee’s broadly worded conclusion and its implication--that any type of electronic communication poses a risk simply by virtue of the method of dissemination of information. The shift of focus from the type of information being discussed to the method of communication is troubling and will arguably discourage attorneys from utilizing emerging technologies such as cloud computing.

Whether that was the Committee’s intent remains to be seen, but, in my opinion, that seems to be the natural, and troubling, consequence of its secondary holding.

Nicole Black is a Rochester, New York attorney. 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 early 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.

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