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Supreme Court of New Mexico on judges using social media

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

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Supreme Court Of New Mexico On Judges Using Social Media

Judges and social media: according to most judicial ethics commissions, it’s a dicey proposition that doesn’t always work out well for judges. As I’ve discussed in past columns, more often than not, judges are chastised by judicial ethics commissions for their online interactions. In many cases, the conclusions are based on knee jerk reactions to “newfangled technology” and are grounded in an inherent misunderstanding of the nature of online platforms and interactions.

Such is the case with the Supreme Court of New Mexico’s decision last week in State v. Thomas, No. 34,042. In this case, the defendant contended that social media postings by the district court judge exhibited judicial bias, where, during the pendency of the trial, the judge 
posted comments to his election campaign Facebook page regarding his role in the case and his opinion of its outcome.

The Court chose not to address the specific allegations regarding the judge’s social media usage since it was overturning the defendant’s conviction on other grounds. But it then proceeded to provide guidance on judges using social media and offered this blanket statement which essentially discouraged judges from interacting online in nearly all contexts:

“While we make no bright-line ban prohibiting judicial use of social media, we caution that ‘friending,’ online postings, and other activity can easily be misconstrued and create an appearance of impropriety. Online comments are public comments, and a connection via an online social network is a visible relationship, regardless of the strength of the personal connection.”

After issuing this unfortunate mandate, the Court then proceeded to provide some conflicting guidelines designed to assist judges who choose to interact on social media.

First, the Court wisely advised judges to avoid posting about pending matters—advice that the judge in this particular case would have been wise to heed—while simultaneously and inexplicably forbidding judges from making any public comments online whatsoever: “We clarify that a judge who is a candidate should post no personal messages on the pages of these campaign sites other than a statement regarding qualifications, should allow no posting of public comments, and should engage in no dialogue, especially regarding any pending matters that could either be interpreted as ex parte communications or give the appearance of impropriety.”

The Court then continued along this vein by reiterating that judges should avoid most, if not all, online public statements: “Judges should make use of privacy settings to protect their online presence but should also consider any statement posted online to be a public statement and take care to limit such actions accordingly.”

Next, the Court then cautioned that judges must understand the implications of interacting online (which would presumably be via private postings only since all public communications seem to be out of the question): “A judge must understand the requirements of the Code of Judicial Conduct and how the Code may be implicated in the technological characteristics of social media in order to participate responsibly in social networking.”

So, essentially, the Court’s position seems to be that judges should avoid all public communications when interacting online, even communications as benign as, “Here’s a photo of my new granddaughter. Isn’t she cute?” or “What a game last night! Go Bills!” The Court asserts that it’s not creating a bright line rule prohibiting social media use by judges, but the apparent prohibition against public communications —which are the very essence of social media — seemingly belies this claim. For that reason, the Court missed the mark and I would respectfully suggest that the Court’s conclusions regarding judges using social media will not withstand the test of time.

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.


The Stalking Statute And Email: Muddling Through 21st Century Issues

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

*****

Regular readers of my column know that every summer I work on the annual update to the book, Criminal Law In New York, which I co-author with Judge Karen Morris. During the course of my research for the update, I read thousands of criminal law cases handed down over the past year with an eye toward locating those holdings that affect substantive issues relating to the Penal Code. And, given my passion for the intersection of law and technology, I also take an interest in those cases where technology impacts the Penal Code. People v. Marion, 49 Misc.3d 562 (Crim. Ct. City of New York, 2015) is just such a case.

One of the issues in People v. Marion is whether the complainant's work e-mail address constituted a “place of employment or business” for purposes of the stalking statute. The relevant portion of the accusatory instrument alleged the following:

From January 17, 2015 to April 17, 2015, I have received over 100 Instagram messages from the defendant. Specifically, one of the messages stated, “I wish you would let me find you tonight” and “I'll always be by your side.” From January 17, 2015 to April 8, 2015, I have received approximately 10–15 emails from the defendant at both my work and personal email addresses. From January 17, 2015 to January 19, 2015, I have received approximately 80 [calls] from a phone number which I know belongs to the defendant.

In reaching its decision, the court noted that the only allegation that amounted to a possible violation of\of Penal Law § 120.45(3), the stalking statute, was the assertion that the defendant sent repeated emails to the complainant at her work email address. Next, the court explained that the People were required to include allegations in the accusatory instrument establishing that the defendant “intentionally, and for no legitimate purpose, engage(d) in a course of conduct directed at a specific person, and (knew) or reasonably should know(n) that such conduct ... is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.”

The court concluded that the allegations against the defendant were insufficient since the “‘fair import’ of the phrase ‘place of employment or business’ is that it refers to an actual, physical location.” The court reasoned that subsection 2 of Penal Law s.120.45 sufficiently addressed the conduct alleged since included the actions of “repeatedly emailing a person with no legitimate purpose other than to cause her emotional harm.”

I believe that the court missed the mark with this conclusion, both in terms of: 1) its assertion that subsection 2 covered the alleged conduct and 2) its conclusion that subsection 3 required that the conduct occur at the physical workplace.

First, subsection 2 requires a higher standard of harm —that material harm be shown — whereas subsection 3 only requires that the conduct is “likely to result in harm.” Undoubtedly the reason that a lower standard of harm was required for subsection 3 is due to the fact that individuals have more at stake when they are stalked at work; not only are they emotionally affected, they may be financially affected as well. Thus, a lower level of harm is required to be shown.

So the court’s assertion that subsection 2 necessarily covers all situations where emails are sent to a person’s business email address is incorrect. A person may receive emails at a business address that are “likely to result in harm” due to the possibility that the employer may discover them but do not actually result in harm as required by subsection 2.

Next, the statute specifically forbids repeated contact that includes “initiating communication…at such person’s place of employment or business.” Sending an email to an individual’s work address undoubtedly constitutes the act of communicating with someone at their place of business. That’s the entire point of a “work” email address versus a personal one. A work email address is where people receive the vast majority of communications relating to their work, and oftentimes, employers have full access to all emails received in that account.

For those reason, I submit that the court interpreted this subsection far too literally, through a narrow, 20th century lens. I am confident that this myopic view of Penal Law 125.45(3) will not withstand the test of time.

 

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.


Manhattan Judge Misses Mark On Gender Discrimination Claim

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

*****

Manhattan Judge Misses Mark On Gender Discrimination Claim

My regular readers know that I typically focus on the intersection of law and technology in this column. But occasionally I come across an issue or case unrelated to technology that merits further comment. Edwards v. Nicolai, 160830/13, a New York County Supreme Court decision, is just such a case.

At issue in this case was whether the plaintiff’s claims alleging gender discrimination could survive a motion to dismiss. The plaintiff alleged that because she was fired due to jealousy on the part of her employer’s wife, who believed that she was “too cute,” that she was discriminated against based on her gender.

The Court concluded that the allegations could not survive the motion to dismiss since being attractive is a trait that could apply equally to both men and women. The Court explained:

“Plaintiff has failed to plead in the Amended Complaint in sufficient detail what the term “too cute" is alleged to mean. The reference to the term "too cute” may not be a remark about physical appearance in the first place. In any event, plaintiff has also failed to allege that a reference to "too cute" is gender related, namely that the term was applied by plaintiff herein to men and women differently…With respect to whether appearance can be the basis of a discrimination claim under other statutory authority, courts have not found discrimination when the subject conduct or policy was not applied differently to men and women.”

Justice Shlomo Hagler completely misses the point. Certainly both men and women can be attractive. But in this case the issue was whether the plaintiff was terminated either because she was attractive to her male employer or because his wife believed he felt that way. In other words, was she terminated due to her uniquely feminine traits that may have appealed to her employer, a (presumably) heterosexual male?

Contrary to the Court’s assertion, she did not allege that she was terminated because she was an objectively attractive person; she was terminated because she was a woman - one who was believed to be attractive to her heterosexual male employer.

Had she been an objectively attractive male, this would never have been an issue since her employer’s wife would not have felt threatened in that situation. Instead, the allegations were grounded in the claim that she was terminated because she was a woman and her employer was a man. The termination occurred due to her uniquely feminine qualities—traits that would not have been appealing to her employer if she were a man.

This case sets dangerous precedent and allows an employer to fire an employee on the grounds that s/he was attracted to said employee due to his or her gender. The terminations would not occur because the employer was, as Judge Hagler asserts, attractive, but would instead occur because the employer-given his or her unique sexual orientation-found the employee attractive specifically because of his or her gender.

This ruling will give employers a free pass to terminate employees based solely on their gender, as long as the employer can claim that s/he happens to be attracted to that particular gender. If that’s not impermissible gender discrimination, then I’m not sure what is.

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.

 


Manhattan Judge Misses Mark On Gender Discrimination Claim

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

*****

Manhattan Judge Misses Mark On Gender Discrimination Claim

My regular readers know that I typically focus on the intersection of law and technology in this column. But occasionally I come across an issue or case unrelated to technology that merits further comment. Edwards v. Nicolai, 160830/13, a New York County Supreme Court decision, is just such a case.

At issue in this case was whether the plaintiff’s claims alleging gender discrimination could survive a motion to dismiss. The plaintiff alleged that because she was fired due to jealousy on the part of her employer’s wife, who believed that she was “too cute,” that she was discriminated against based on her gender.

The Court concluded that the allegations could not survive the motion to dismiss since being attractive is a trait that could apply equally to both men and women. The Court explained:

“Plaintiff has failed to plead in the Amended Complaint in sufficient detail what the term “too cute" is alleged to mean. The reference to the term "too cute” may not be a remark about physical appearance in the first place. In any event, plaintiff has also failed to allege that a reference to "too cute" is gender related, namely that the term was applied by plaintiff herein to men and women differently…With respect to whether appearance can be the basis of a discrimination claim under other statutory authority, courts have not found discrimination when the subject conduct or policy was not applied differently to men and women.”

Justice Shlomo Hagler completely misses the point. Certainly both men and women can be attractive. But in this case the issue was whether the plaintiff was terminated either because she was attractive to her male employer or because his wife believed he felt that way. In other words, was she terminated due to her uniquely feminine traits that may have appealed to her employer, a (presumably) heterosexual male?

Contrary to the Court’s assertion, she did not allege that she was terminated because she was an objectively attractive person; she was terminated because she was a woman - one who was believed to be attractive to her heterosexual male employer.

Had she been an objectively attractive male, this would never have been an issue since her employer’s wife would not have felt threatened in that situation. Instead, the allegations were grounded in the claim that she was terminated because she was a woman and her employer was a man. The termination occurred due to her uniquely feminine qualities—traits that would not have been appealing to her employer if she were a man.

This case sets dangerous precedent and allows an employer to fire an employee on the grounds that s/he was attracted to said employee due to his or her gender. The terminations would not occur because the employer was, as Judge Hagler asserts, attractive, but would instead occur because the employer-given his or her unique sexual orientation-found the employee attractive specifically because of his or her gender.

This ruling will give employers a free pass to terminate employees based solely on their gender, as long as the employer can claim that s/he happens to be attracted to that particular gender. If that’s not impermissible gender discrimination, then I’m not sure what is.

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.

 


Another knee-jerk reaction to technology — this time in California

 

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

*****

Another knee-jerk reaction to technology — this time in California

California legislators and court officials are taking a stand. It’s a murky, misguided one, lacking in common sense, but it’s a stand nonetheless. It’s a stand against progress, the Internet, and the looming threat of this newfangled thing called social media. And they’re going to win this fight, no matter what the cost to the jury and judicial system.

At least, that seems to be their end goal, but I could be wrong. It’s a bit hard to tell since they’re so caught up in preventing conduct that’s been around as long as the jury system (but now wears a 21st century mask) that it’s difficult to discern the rationale behind their muddled thought processes.

Let me back up. I’m getting a bit ahead of myself. Let’s start with the facts. There is California legislation pending that is supported by state court officials that will result in fines being imposed on jurors (up to $1,500) for using the Internet to research and communicate about pending cases. This legislation was drafted in response to the purported threat of increasing mistrials due to juror misconduct.

Now let’s face reality. Mistrials have always occurred due to juror misconduct. Jurors have always disregarded court instructions and researched cases using outside resources. This is nothing new.

In the past, jurors read newspapers or watched the evening news to obtain information about pending cases. Jurors also discussed the cases with their spouses or neighbors. Nowadays, jurors continue to use more traditional methods to learn about cases and parties, but also have the Internet available to them and conduct online research and share their experiences via social networks.

The only difference is that jurors’ impermissible online activities can now be documented and tracked. It’s a simple matter to access digital data evidencing a blatant disregard of a court’s instructions, but it’s another matter entirely to prove that a juror read a newspaper or spoke to another person about a pending case in violation of a judicial order to refrain from doing so. So, because the violative digital interactions are more easily preserved, more mistrials may be arising due to those particular actions.

But it’s important to acknowledge that it’s not the behavior that has changed, it’s the method. Jurors are violating court orders in more trackable ways. And now that judges can prove jurors are ignoring them, heads are gonna roll! Jurors heads. Ok not their heads. But their wallets will most certainly be impacted. And that’ll teach ‘em, right?

One thing it will undoubtedly teach them is that sitting on a jury is a risky—and potentially costly—business. Instead of encouraging citizens to participate in the democratic process of serving on a jury, this legislation will have the opposite effect. People will be more reluctant to serve on juries and our judicial system will suffer. Jurors will find ways to avoid jury duty (and potential fines) and the concept of “ a jury of your peers” will become an antiquated concept that is so 20th century.

If that’s the goal of the California legislature, then Bravo! They’re well on their way to stifling voluntary citizen participation in the jury process. But it that’s not the intention, then perhaps it would be wise to reconsider penalizing jurors for simply being human in the 21st century.

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.


Facebook, privacy settings and spoliation

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

*****

Facebook, privacy settings and spoliation

Once again, social media and the law collide, this time in the Western District of New York. In March, United States Magistrate Judge Marian Payson handed down a decision in Thurmond v. Bowman, 2016 WL 1295957 addressing allegations that the plaintiff should be sanctioned for spoliation after revising the privacy settings to her Facebook account.

Two interesting issues were addressed in this case, which arose from claims that the defendants violated the Fair Housing Act and other statutes when they declined to rent an apartment to the plaintiff after learning that she had two children: 1) whether spoliation sanctions were warranted for the alleged inadvertent deletion by the Plaintiff of 3 Facebook posts and 2) whether sanctions were warranted due to the plaintiff’s revision of the privacy settings of her Facebook account after being warned by the court to preserve there status quo of her Facebook account.

First, the court considered the motion for spoliation sanctions. The defense alleged that the Facebook postings at issue were relevant to the Plaintiff’s claims of emotional distress. They asserted that they had accessed the Plaintiff’s publicly viewable Facebook posts and had printed out many of them. Then a few days later—after the court had admonished the Plaintiff to preserve the status quo of her Facebook account—many of the posts were no longer publicly available and it was later learned that three of the posts consisting of photos of the Plaintiff’s children had been deleted from her account. The motion seeking spoliation sanctions then followed.

The Court first addressed the relevance of the social media postings to the plaintiff’s claims of emotional distress and wisely noted that per se relevance did not apply: “(W)ithin the specific factual context of a given case, social media postings may be relevant to particular claims or defenses, including where social media posts may contradict claims of physical or emotional injury…That said, ‘[a] plaintiff's entire social networking account is not necessarily relevant simply because he or she is seeking emotional distress damages.’…As some courts have cautioned, “the relationship of routine expressions of mood [in a social media posting] to a claim for emotional distress damages is much more tenuous [than the relationship between a post ‘reflecting engagement in a physical activity” to a claim for physical injury damages].’”

The Court then concluded that the three missing posts, which the plaintiff contended that she inadvertently deleted, were not relevant to the claims of emotional distress and thus the defendants had suffered no harm: “With respect to the three deleted posts, defendants have failed to articulate any basis upon which to conclude that they are relevant to the issue of emotional distress. I likewise can think of none. (W)ith respect to the three Facebook posts that are missing from the printed posts produced to defendants…, I find that they are not relevant to this action; in any event, defendants possess two of the postings and part of the third, as well as many other photographs depicting Thurmond's children. Thus, the deletion of the three posts from Thurmond's account cannot be said to have harmed defendants in their defense of this action and sanctions for spoliation are not warranted.”

Finally, the Court addressed the issue of whether sanctions were warranted due to the plaintiff’s blatant disregard of the Court’s preservation order. The Court declined to issue sanctions but admonished the plaintiff for her actions: “By altering her Facebook account, Thurmond violated the Court's May 21 order. Her conduct had the effect of hiding her postings from public view, and hence from defendants' counsel's view. Of course, it does not appear that the postings were deleted, and they remain available for defendants' use, and defendants have not shown that they were prejudiced by Thurmond's conduct in violating the order. Nevertheless, it is troubling that the posts were removed from public view after this Court issued a consent order designed to preserve the status quo of her social media accounts…(and) Plaintiff is admonished that any instances of future similar conduct are likely to result in sanctions.”

So let this be a lesson to you: tread carefully when it comes to advising clients regarding preserving social media account information, especially when litigation is pending. And always ensure that the social media data—all of the digital data, not just the printed version—is preserved and available for disclosure. Otherwise spoliation sanctions will undoubtedly follow, to the detriment of your client’s case.

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.


New York judge rules Instagram contact violates order of protection

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

*****

Every year, as I work on the annual update to the book, Criminal Law In New York, which I co-author with Judge Karen Morris, I take notice when I come across cases where social media and criminal law intersect. People v. Lemons, 2016 WL 1735472, which was pointed out to me by my fellow Daily Record columnist Scott Malouf, is just such a case.

At issue in People v. Lemons is whether actions taken by the defendant using the social media platform Instagram constituted a communication that was in violation of a pending order of protection. In the accusatory instrument the complainant alleged that there was an order of protection in place that forbade the defendant from contacting her by electronic or other means and that the defendant violated it by sending her a “follow” request on Instagram.

The defendant brought a motion to dismiss the accusatory instrument for facial insufficiency, contending that the follow request he allegedly initiated via Instagram, which caused a notification to be sent to the complainant, via Instagram did not violate the order of protection because he did not directly communicate with her.

The Court rejected his argument, concluding that the request that he allegedly initiated through Instagram was, in fact, a communication: “(T)he Court has little trouble concluding that when the defendant sent the complainant a message through the Instagram app this was “communication or any other contact by ... other electronic or any other means,” and was forbidden by terms of the order of protection. The electronic communication originated with the defendant and ended up in the complainant's Instagram inbox, where she saw it.”

According to the Court, he effectively communicated with the complainant even thought it was not a direct communication. The Court explained that he initiated the connection request knowing it would set a series of events in motion which would result in a notification from Instagram to the complainant regarding his interest in connecting with her on the platform: “(E)ven though the specific allegation in the information is that the communication did not flow directly from the defendant to the complainant, since defendant asked Instagram, and not the complainant herself, for permission to view the complainant's page, and Instagram forwarded that request to her. There is no reason to conclude that this forwarding was anything other than an automatic and automated feature built directly into the app, and thus there is also no reason to conclude that the communication was made only to Instagram, and not to the complainant.”

As is often the case in well-reasoned decisions issued by judges regarding online interactions, Judge Statsinger compared the defendant’s actions in this case to similar “offline” behavior that was analogous to the actions alleged to have been taken by the defendant: “The situation described here is exactly the same as if the defendant, using his iPhone, had asked Siri to place a call to the complainant, instead of dialing her number himself. Just as in this hypothetical there could be no legitimate claim that the defendant communicated only with Siri and did not himself telephone the complainant, here there can be no legitimate claim that the defendant communicated only with Instagram, and not with the complainant.”

This was an interesting issue of first impression in New York and Judge Statsinger did a great job analyzing the issues and provided a clear, concise, and logical decision. One more social media platform has now been addressed in this context. Rest assured—many more will follow.

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.


New York Bar seeking to require lawyers to be more tech-savvy

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

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New York Bar seeking to require lawyers to be more tech-savvy

In 2012, the American Bar Association amended the comments to Model Rule 1.1 to include the requirement that lawyers “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” (Emphasis added). Since that time, more than 20 states have followed suit and required that their attorneys likewise educate themselves about the ever-changing legal technology landscape.

Last year, New York jumped on the bandwagon and modified the comment to Rule 1.1 (along with a number of other comments) so that it now mirrors the ABA comment discussed above and requires lawyers to “keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.”

Now the New York State Bar Association’s Committee on Standards of Attorney Conduct is proposing changes to the Rules of Professional conduct themselves (as opposed to the comments) (online: http://www.courts.state.ny.us/rules/comments/PDF/ProfConduct.pdf). After reviewing the ABA’s 2012 updates to the Model Rules, the Committee suggested that a number changes be enacted that directly affect New York lawyers’ obligations regarding technology. Let’s take a look at a few of the more notable recommendations.

First there’s the proposed change to Rule 1.0 which expands the definition of "computer-accessed communication” and clarifies that it includes any “electronic communication or any other form of recorded communication or recorded representation,” including those specifically enumerated in the rule.

There were also proposed changes to Rule 1.4, which addresses lawyer communications with clients. The proposed changes amend the current role to replace the more narrow term ''telephone calls" with the broader “communications,” which obviously encompasses the ever-expanding array of digital communications.

Next, Rule l.6(c), which addresses confidentiality of information issues, was also touched by the proposed changes. The new version expands upon the current version and requires that lawyers themselves take reasonable efforts to safeguard client information instead of simply obligating them to ensure that their agents do so, as the current version of the rule now requires.

The Committee explained that the revised rule would require lawyers to make “reasonable efforts” to prevent “(i) inadvertent disclosure (such as when a lawyer or
secretary accidentally sends an e-mail to the wrong person); (ii) unauthorized disclosure
(such as when a paralegal reveals information to an opposing party without the client's
consent); and (iii) unauthorized access (such as when hackers break into a law firm's
computer network).”

According to the Committee, the rationale for the proposed change to Rule 1.6(c) was driven by the acknowledgement that lawyers are increasingly storing confidential client data online: “Today…much of a lawyer's or law firm's data is stored electronically (including on smart phones, iPads, laptops, and other portable devices that can easily be lost or misplaced), and the threats to security are more complex…(L)awyers frequently communicate electronically with clients, co-counsel, experts, and others; and relatively few lawyers are experts in technology or computers.”

In the past I’ve criticized the current version of the rule to the extent that it requires lawyers to supervise and oversee those with expertise outside the realm of the lawyer’s training, such as IT expertise. To the extent that the revised language simply requires lawyers to take steps to ensure that they’ve vetted the third parties to whom they outsource IT or data storage, then this language makes sense. This is especially so given the revision to the comments to Rule 1.1 (discussed above) which requires lawyers to stay abreast of changes in technology. In other words, lawyers must take steps to educate themselves about technology so that they’ll have a basic understanding sufficient to allow them to vet third party technology providers.

At least, that’s my perspective. If yours differs, make sure your voice is heard! The Bar is now seeking comments from New York lawyers regarding proposed changes. Comments should be sent via email to rulecomments@nycourts.gov through June 1st.

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.