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February 2014

Judges must keep up with social media

Stacked3This week's Daily Record column is entitled "Judges must keep up with social media ." My past Daily Record articles can be accessed here.

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Judges must keep up with social media 

In 2011, I wrote about a federal court arraignment here in Rochester where a member of Hells Angels was accused of threatening a witness by “poking” him on Facebook. Unfortunately, neither the judge nor the attorneys involved in the matter understood Facebook privacy settings, so the judge ultimately opened up the issue to the peanut gallery, asking a probation officer, a court reporter and a newspaper reporter in attendance for insight into how Facebook privacy settings work.

Fast forward to 2014 and you would think that things would have changed just a bit. After all, social media has been around for quite some time now and is a part of our mainstream culture.

Then again, it’s a rapidly evolving medium, with new platforms being released all the time, making it difficult for even tech-savvy folks to keep up. So it’s no wonder that lawyers and judges continue to encounter difficulties when faced with cases involving allegations of unlawful contact via social media.

It’s no surprise then that these issues continue to crop up in courts across the country. The problem is that judges are conducting business as usual and setting bail in these cases even though they often lack a complete, or even partial, understanding of the issues and social media platforms involved.

A great example of this occurred a few weeks ago in Salem, Mass., where a man named Thomas Gagnon was accused of violating a restraining order by sending his former girlfriend an invitation to join his Google Plus circle.

According to an article from The Salem News, the judge set bail in this case even though he knew nothing about the inner workings of the Google Plus social network: “(A) Salem District Court judge yesterday admitted he wasn’t sure exactly how such invitations work on Google’s social media site, but he set bail for Gagnon, 32, at $500 and ordered him to stay away from the woman’s home and obey the restraining order she took out on Monday.”

And if that wasn’t troubling enough, the judge set bail even though Gagnon’s attorney raised legitimate questions at the arraignment about Google Plus and issues surrounding whether the platform automatically generates requests to connect on occasion depending on a user’s settings or interactions with the platform.

His attorney’s concerns were arguably valid in light of a recent moves by Google to integrate Google Plus into the lives of anyone that uses its other services, including Gmail and YouTube. Google’s attempts to broaden the user base of Google Plus by integrating these products has resulted in some users asserting that Google has mined their Gmail contacts and then sent out automatic Google Plus notifications.

In other words, there’s a legitimate argument to be made that Gagnon had nothing to do with the connection request. So setting bail and depriving him of his liberty based on accusations which may not have been grounded in fact — and about which the judge admittedly had no understanding — was negligent at best, and egregious at worse.

True, social media platforms are changing at a break neck pace and staying abreast of every nuance is a full-time job — one that judges never agreed to take on. That being said, social media isn’t going away and judges must exercise more care than was evidenced in this case prior to depriving individuals of their liberty.

It is the judge’s job to ensure that the defendant understands the charges — and that simply cannot be done if the judge doesn’t understand them. It’s simply common sense.

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.


NYC bar issues odd report on cloud computing

Stacked3This week's Daily Record column is entitled "NYC bar issues odd report on cloud computing." My past Daily Record articles can be accessed here.

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NYC bar issues odd report on cloud computing

In November, the New York City Bar Association’s Committee on Small Law Firms issued a lengthy 28-page report entitled The Cloud and the Small Law firm: Business, Ethics, and Privilege Considerations.

I obtained a copy and eagerly began to read it, but when I reached this sarcastic sentence smack dab in the middle of the introduction (no embellishments added), I knew I was in for a doozy of a report: “For small firms, particularly, these (IT) costs were astronomical, if not utterly prohibitive. There had to be a better way, but where? And then this new prayer seemed to be answered; THE ‘CLOUD’ BURST FORTH!”

Things only went downhill from there. The entire report had a somewhat surreal, outdated quality about it, almost as if it had been written in 2007, when cloud computing first emerged on the scene.

The report was fraught with strange assertions like this one, found in the conclusion (emphasis added): “Lawyers have a wide variety of choices in Cloud services, and these will expand as Internet access gains nationwide reach and portable devices to access those services become cheaper, more durable and more secure.”

It was if the committee had written the report years ago, when Internet access was not readily available and mobile devices were as big as a brick, and then inexplicably decided to hold off on releasing it until 2013.

So, you probably won’t be surprised to learn that the committee’s analysis and recommendations regarding lawyers’ use of cloud computing were overly cautious, at best, and antiquated, at worst.

For example, the committee advised that “the provider should not possess the encryption key unless there is a compelling reason for it to have the key.”

This suggestion presumes lawyers seek only data storage in the cloud and ignores the fact that most cloud-based products are software products (software as a service or SaaS), such as email, billing, document management or law practice management software. These platforms run software on the provider’s end that necessarily requires the ability for the programs to interpret, create connections, organize and categorize the data. If the data is encrypted from the provider (as opposed to being encrypted from unauthorized prying eyes) while on the provider’s servers, the software is inoperable and useless to the attorney hoping to use it.

Another problematic recommendation was that lawyers should “obtain (their) clients’ consent before storing their information in the cloud or relying on cloud-based software for client-critical functions.“ Client consent is generally not a requirement when attorneys outsource the storage or handling of confidential client data in paper format, such as when storing old paper files in a warehouse or providing a process server with confidential documents. Electronic data should be treated no differently simply because the confidential information is stored in a different format.

Next up, the committee also recommended that lawyers ensure that they have the ability to access their data in the absence of an Internet connection: “(Find) a vendor who offers synchronization and storage of the cloud data to your device, or gives you the option of backing up your data automatically or manually to your local device.”

In other words, according to the committee, lawyers should continue to pay for and maintain costly on-site servers, thus defeating one of the primary benefits of cloud computing products: affordability and reduced IT costs.

One last example is the committee’s advisement that lawyers must supervise the cloud vendor’s provision of services: “Rule 5.3 requires an attorney to make reasonable efforts to supervise the work of nonlawyers that are ‘associated with’ the lawyer. Ethics opinions have extended this supervisory duty to the outsourcing context.”

This requirement is problematic since it holds lawyers to the same standard no matter what type of function is being outsourced. There is a big difference between outsourcing legal and administrative functions as opposed to outsourcing data management and storage to online legal service providers. Quite frankly it’s unreasonable to expect lawyers — or even some legal IT consultants — to oversee complex tasks requiring very specific expertise such as computer programming, encryption, data storage, and the delivery of said services. Asking them to do so is unrealistic.

At the end of the day, I don’t expect the recommendations in this report will withstand the test of time. In fact, I would argue that many of them are outdated already. At least, one can only hope.

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.


Let's Meet Up New York City in Early February

Nyc
Every year I attend LegalTech New York and this year is no different! I'm really looking forward to it and if you'll be there as well--or if you just happen to be in or near New York City in early February--it'd be great to meet up.

On February 5th at noon I'll be at the MyCase Meet Up. It's a FREE lunch so I hope you can join me. Reserve your spot here, but hurry! Space is limited!

Later that same day, I'll be at Lisa Solomon's NYC LegalTech Solo/Small Firm Meetup. You can learn more about that event--and sign up for it--here

I hope to see you at one of those events! And feel free to reach out to me at niki@mycase.com if you'd like to connect while I'm in town that week.


6 must-have apps for every lawyer’s new iPad

Stacked3This week's Daily Record column is entitled "6 must-have apps for every lawyer’s new iPad." My past Daily Record articles can be accessed here.

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6 must-have apps for every lawyer’s new iPad

You received exactly what you’d asked for this holiday season and now you’re holding a shiny new iPad in your hands. Now what? How do you figure out which apps to download to help to make you a more effective, efficient lawyer? Well, you’re in luck! Get started by downloading the 6 apps suggested below:

 

First, purchase PDF Expert ($9.99). It’s my favorite app for PDF annotation and storage. Using this app, you can easily import documents from many sources, including email attachments, your computer’s hard drive, Dropbox, SkyDrive and GoogleDocs. You can import a range of file types, including iWork, MS Office, Power Point, text files, images, music and video files and more.

 

Then, using this app you can fill in forms, add typewritten text in any number of fonts and colors, or insert handwritten text into documents. You can also mark up documents by highlighting text or striking through words.

 

Fastcase is another great app. This free app includes cases and statutes from all 50 states and the federal government and allows you to conduct free legal research on the fly, even if you don’t have a Fastcase subscription.

 

For a mobile scanner, consider the Scanner Pro app ($2.99). It allows you to use your iPad’s camera to capture an image of the document, then converts it into a PDF which you can then email or upload into any number of integrated online storage services.

 

Every lawyer needs a “to-do” app and Any.DO is a great choice. This free app is user-friendly and versatile and is flexible enough to fit into most workflows. It’s available as a browser extension for Chrome and other Web browsers as well as an iPad app. You can add tasks via the Web interface or the smartphone app, and can even share them with others if necessary.

 

But what sets it apart is the way that it integrates with your smartphone and with Gmail. So, if you add a task using your smartphone and the app will automatically include a link to any contact information stored on your phone relating to that person. The Web browser extension integrates with Gmail, prompting you to add an email-related task at the end of each email. The task you create is then linked to the email, so that you can quickly return to the email, should you need to do so in the future. Finally, the developers recently came out with a great, free calendar app, Cal, that integrates with Any.DO and GCal or your native iOS calendar.

 

Next, download Google Now. This free app is Google’s intelligent personal assistant that is designed to provide you with the information most relevant to your daily life, right on your smartphone. Like Siri, Apple’s personal assistant, the Google Now app responds to voice commands and also provides “information cards” catered to your needs, based on your interaction with your phone. The information is gleaned from your phone’s GPS data and the data that Google has collected regarding your search history. It then personalizes its results and predicts which “information cards” will be most useful to you.

 

And last but not least, don’t forget about law practice management apps. Most reputable Web-based law practice management companies offer iPad (and iPhone) apps which provide lawyers with 24/7 access to their firm’s documents, client files, contact information and more. And, some, such as MyCase’s app (the company for which I work), even offer a client-facing app which allows clients to securely communicate with their lawyers and access all of their case-related information as well.

 

So there you have it — a great list of apps to get you started. Download a few of them and see how much your new iDevice helps you to streamline your law practice and improve your productivity in 2014!

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.