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Florida Bar on the ethics of cloud computing

Stacked3This week's Daily Record column is entitled "Florida Bar on the ethics of cloud computing."

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

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

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

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

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

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

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

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

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

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

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


What’s coming in legal innovation in 2013

Stacked3This week's Daily Record column is entitled "What’s coming in legal innovation in 2013."

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

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What’s coming in legal innovation in 2013

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

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

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

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

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

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

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

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

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

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


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

Stacked3This week's Daily Record column is entitled "LegalTech 2013: Old habits die hard, but die they do."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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