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When worlds collide – A tweet constitutes an assault

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

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When Worlds Collide: A Tweet Constitutes An Assault

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

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

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

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

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

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

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

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

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

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

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


NY Ethics Committee on lawyers accepting credit card payments

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

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NY Ethics Committee on lawyers accepting credit card payments

The Internet and cloud computing have drastically altered the legal landscape, including the expectations of legal consumers. Because of rapid advancements in technology and 24/7 access to information, the needs of legal clients are necessarily changing with the times. They expect immediate access to information, responsive client service, and flexibility in paying their legal bills, including the ability to make credit card payments online to pay for legal services rendered.

Fortunately for New York lawyers, the ability to accept credit card payments for legal fees was deemed ethical years ago. Of course, even so, questions sometimes arise when lawyers seek to collect credit card payments in unusual way. Such was the case in New York State Bar Association Ethics Opinion 1112.

At issue in this case was whether a firm could include in its retainer agreement language establishing a particular type of credit card payment arrangement. Specifically, the inquiring attorney asked whether a law firm may impose “through its retainer agreement a 20-day time limit for payment upon clients, after which the law firm may automatically bill the client’s credit card for the full amount of the unpaid balance of the moneys outstanding?”

At the outset, the Committee on Professional Ethics acknowledged that when lawyers accept credit card payments from clients, it does not usually present an ethical issue: “It is well-established that, in certain circumstances, New York lawyers may allow their clients to pay their attorneys’ fees by credit card.”

Of course, there are exceptions to that general rule that New York lawyers should be aware of. The Committee explained that there were a number of caveats to the rule: “A lawyer may accept credit card payments of legal fees so long as: (i) the amount of the fee is reasonable; (ii) the lawyer complies with the duty to protect the confidentiality of client information; (iii) the lawyer does not allow the credit card company to compromise the lawyer’s independent professional judgment on behalf of the client; (iv) the lawyer notifies the client before the charges are billed to the credit card and offers the client the opportunity to question any billing errors; and (v) in the event of any dispute regarding the lawyer’s fee, the lawyer attempts to resolve all disputes amicably and promptly and, if applicable, complies with the fee dispute resolution program set forth in 22 N.Y.C.R.R. Part 137.”

Next the Committee turned to the issue at hand, concluding that the retainer agreement could include a clause that allowed a firm to automatically bill the client’s credit card for any outstanding fees, as long as certain other requirements were met: “(T)he proposed 20-day provision would be consistent with the Rules only if the retainer agreement also expressly informed the client of the right to dispute any invoice (and to request fee arbitration in accord with applicable court rules, prior to the imposition of any disputed credit card charges).”

So, not only are lawyers permitted to accept credit cards to pay legal fees, they can also automatically bill a client’s credit card for unpaid fees as long as the retainer agreement includes the necessary language required to provide clients with notice of their legal rights.

That’s good news because today’s legal clients expect to have multiple payment methods available to them; the more methods you offer, the more likely you are to get paid. When you accept online credit card payments from clients, whether through a stand-alone payments platform or through your firm’s law practice management system, it makes it easy for your clients to pay their legal fees, thus ensuring that you get paid quickly. So now that you know it’s ethical for New York lawyers to accept credit card payments from clients, what are you waiting for?

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.


Attorney-client privilege waived when non-password protected files stored online

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

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Attorney-client privilege waived when non-password protected files stored online

Lawyers have been using cloud computing for nearly a decade now. Nearly 30 different jurisdictions, including New York, have issued ethics opinions permitting lawyers to store confidential client data in the cloud as long as reasonable steps are taken to ensure that the data is secure. But what steps must be taken to ensure that the data is securely stored? And if the data is not adequately protected, then how might that affect a pending case?

Some of these questions were answered in Harleysville Insurance Company v. Holding Funeral Home Inc., a decision handed down by the United States District Court, Western District of Virginia last month (online: http://tinyurl.com/mcl5qxp). Issues considered in the case were whether the attorney-client and work product privilege were waived when defense counsel accessed data (via a link found in discovery documents) stored by the plaintiffs online in an unprotected Box.net account.

At the outset, the Court acknowledged the ever-changing state of technology in the 21st century and the necessary obligations of those who choose to take advantage of it. Interestingly, the language used by the Court echoed the language typically used by ethics committees who have opined in recent years on the obligations of lawyers to stay abreast of changes in technology. “The technology involved in information sharing is rapidly evolving. Whether a company chooses to use a new technology is a decision within that company's control. If it chooses to use a new technology, however, it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information”

In reaching its decision, the Court noted that the fact that the data stored online in this case was not protected by a password was pivotal. “(T)he information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise. In essence, Harleysville has conceded that its actions were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to image (sic) an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web.”

Next, the Court concluded that because the data was not stored in a password protected account, the attorney work product privilege likewise did not apply: “Harleysville's disclosure should not be considered ‘inadvertent' under federal law. Harleysville has not claimed that its agent's posting of its Claims File to the Box Site was not an intentional act. Also, based on my reasoning above, I cannot find that Harleysville, or its counsel, took reasonable steps to prevent its disclosure or to rectify the situation. Therefore, I find that Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine.”

Finally, the court considered whether defense counsel’s conduct in viewing the unprotected Box file was unethical. The Court concluded that the defense counsel’s actions warranted sanctions because “defense counsel should have realized that the Box Site might contain privileged or protected information…and should have contacted Harleysville's counsel and revealed that it had access to this information.”

So the lesson to be learned from this case is that it is critical to ensure that any information you store online is adequately protected. By using platforms designed for lawyers that are encrypted and password protected, you’re able to meet your ethical obligations and avoid waiving any privileges related to that data. The key is to ensure that you understand the technology that you’re using and that you take sufficient steps to vet any third party providers who will be housing your client’s information.

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.


Survey shows how lawyers use technology in 2017

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

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Survey shows how lawyers use technology in 2017

Technology has become part of the fabric of our lives. Its effects are inescapable and its impact on our culture has been tremendous. In the business world, technology has helped to streamline processes and improve efficiencies. Although most lawyers weren’t first in line when it came to using technology in their practices, over time the benefits of doing so became clear. That’s why today’s lawyers are increasingly incorporating the latest tools and software into their law firms.

As shown in a survey recently conducted by Above the Law in partnership with MyCase (the company for which I work) lawyers’ technology needs and decisions vary depending on a number of factors, including firm size. The goal of the survey was to determine how lawyers would use technology in the upcoming year. The focus was on learning more about the goals and challenges lawyers faced in running their practices and the types of technologies they planned to incorporate into their firms in 2017 to solve those problems.

As part of the survey, lawyers were asked: 1) What will you do in 2017 to modernize your law firm? and 2) What is the biggest challenge at your law firm?

Nearly 650 lawyers responded to the survey from firms of all sizes. The largest number of respondents (52%) were from firms of 20 or more lawyers, followed by solo lawyers (18%), firms with 2-5 lawyers (13%), firms with 5-10 lawyers (11%), and mid-sized firms with 10-20 lawyers (6%).

When lawyers were asked about the steps they would take in 2017 to modernize their firms, the most popular response was that they planned to move towards a paperless law office (21%). Other responses included revamping the firm’s website (18%), investing in legal practice management software (10%), moving to the cloud (8%), and accepting online payments from legal clients (3%).

Solo and small firm lawyers were the most likely to take steps to accept online payments in 2017(10%), while larger firm lawyers prioritized revamping their firm’s website (44%). Another area of focus for solo and small firm lawyers was investing in law practice management software, with 32% reporting that was a priority in the coming year.

The responses to the challenges faced by lawyers were particularly enlightening. By far, the biggest hurdles lawyers encounter are managing their workload (19%) and bringing in new business (16%). In some ways, these replies were counterintuitive, but the responses to these pressures clearly varied by firm size, with 26% of solos reporting difficulties obtaining clients, compared to only 13% of large firm lawyers. In comparison, 21% of large firm lawyers reported issues managing their workload, while only 14% of solos did. So it’s readily apparent that large firm lawyers and solos encounter very different challenges in their day-to-day practices.

Other common issues that lawyers reported facing in their practices included communicating with clients (8%), tracking time and billing (7%), managing case files (7%), choosing the right technology (6%), and getting paid (4%). Interestingly, getting paid was the most difficult for solo attorneys, with 8% reporting this was a hurdle they faced. Mid-sized firms with 10-20 lawyers were next at 5%, followed by firms with 5-10 lawyers at 4%. Large and small firms reported less of an issue with collecting payment, with large firms at 3% and small firms with 2-5 lawyers at 2%.

How do your plans for 2017 compare? There’s no reason to run your law firm as if it were still 1995. Technology has revolutionized the way that business is being conducted. Smart lawyers understand the realities of practicing law in the 21st century and the benefits of taking advantage of the latest tools and software. By doing so, you’re able to run your law practice more efficiently, allowing you to be a more effective lawyer. So what are you waiting for? What steps will you take in 2017 to modernize your law firm?

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