Cloud Computing

NYC Bar on lawyers’ ethical obligations at the border

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

*****

NYC Bar on lawyers’ ethical obligations at the border

Since the election, border crossings have been subject to greater scrutiny by border control agents. This presents a problem for lawyers, who often cross the border carrying electronic devices which contain confidential client information that they are duty bound to protect. Fortunately, the New York City Bar Association provided timely guidance last month when it addressed this issue in Formal Opinion 2017-5 (online: https://tinyurl.com/NYCBarBorder).

This opinion considered the extent of an attorney’s ethical obligation to “protect confidential information prior to crossing a U.S. border, during border searches, and thereafter.” The specific factual scenario at issue involved an attorney who was traveling abroad and was carrying a portable electronic device that stored confidential client data. When the attorney attempted to cross into the United States, an authorized U.S. border control agent demanded that the attorney “unlock” the device. The attorney did not have client consent to disclose any confidential information.

The lengthy, in depth opinion covered a variety of issues, including the ethical obligations of lawyers in this scenario, the limits of the lawful authority of border control agents, and the types of data that may be accessed an reviewed.

The primary conclusions reached by the Professional Ethics Committee were:

Before crossing the U.S. border attorneys must undertake reasonable efforts to protect confidential information;
At the U.S. border attorneys may disclose clients’ confidential information only to the extent “reasonably necessary” to respond to a government agent’s claim of lawful authority;
If confidential information is disclosed during a border search, an attorney must promptly inform affected clients.

The Committee explained that “reasonable efforts” to protect client data will vary. This determination will necessarily turn on “the ease or inconvenience of avoiding possession of confidential information; the need to maintain access to the particular information and its sensitivity; the risk of a border inspection; and any other relevant considerations.”

Importantly the Committee wisely acknowledged that there is no bright line test available to help lawyers ascertain what conduct is reasonable. This is because of “the rapid pace of technological development and the disparities between the practices, capabilities, and resources of attorneys… (which make it) difficult or impossible to identify a list of minimum mandatory prophylactic or technical measures for an attorney to adopt before crossing the U.S. border.”

According to the Committee, one way to avoid the possibility of being required to disclose confidential information at the border is to ensure that no data is stored locally on your mobile devices. Encrypting devices or storing data in cloud are two of the recommended options that lawyers who take data with them when they travel internationally should consider: A lawyer…who handles more sensitive information should consider technological solutions that permit secure remote access to confidential information without creating local copies on the device; storing confidential information and communications in secure online locations rather than locally on the device; or using encrypted software to attempt to restrict access to mobile devices.”

Finally, the Committee concluded that if a lawyer is faced with a purportedly lawful request to access confidential client data, “the attorney first must take reasonable measures to prevent disclosure of confidential information, which would include informing the border agent that the device or files in question contain privileged or confidential materials, requesting that such materials not be searched or copied, asking to speak to a superior officer and making any other lawful requests to protect the confidential information from disclosure. To demonstrate that the device contains attorney-client materials, the attorney should carry proof of bar membership, such as an attorney ID card, when crossing a U.S. border.”

All in all, this is a very useful, well-researched opinion that provides a wealth of information for lawyers who travel internationally regarding their ethical obligations. It offers in depth guidance to assist lawyers in understanding their duties and includes detailed recommendations for preserving client confidences. If International travel is on your agenda in the near future, you’d be well advised to read this opinion prior to your trip.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. 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 can be reached at niki@mycase.com.


Ohio Bar green lights cloud computing and virtual law firms

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

*****

Ohio Bar green lights cloud computing and virtual law firms

Cloud computing - where electronic data is stored offsite on servers owned and maintained by a third party - is quite common in 2017. The proliferation of mobile devices, which are essentially useless in the absence of cloud computing, has helped contribute to this trend. Another relevant factor is the convenience and flexibility offered by web-based computing. When data is stored in the cloud, it can be accessed from anywhere using any internet-enabled device, at any time, day or night.

Because of the many benefits offered by cloud computing, more and more lawyers are using cloud-based software to store and access documents, track time and billing, manage their contacts and calendars, accept online credit card payments from clients, and interact and collaborate with clients, experts, co-counsel, and more. Lawyers are even foregoing brick and mortar law firms and launching virtual law practices.

Because of these developments ethical committees across the country are weighing in on lawyers using cloud computing in their practices, with more than 25 permitting it thus far. In June, Ohio joined their ranks when the Ohio Board of Professional Conduct issued Opinion 2017-05 (online:
http://www.ohioadvop.org/wp-content/uploads/2017/03/Adv.-Op.-2017-5.pdf).

There were 2 issues considered in the opinion: “1) Is it proper for a lawyer to provide legal services exclusively, or almost exclusively, via a “virtual law office?” 2) Is it proper for a lawyer
operating primarily as a “virtual law office” to lease a shared, nonexclusive office space
for purpose of occasional face-to-face meetings with clients, or receiving mail?”

The Board acknowledged that lawyers have a continuing duty to maintain technology competence, explaining that “a VLO lawyer should possess a general knowledge of the security safeguards for the technology used in the lawyer's practice, or in the alternate hire or associate with persons who properly can advise and inform the lawyer.”

The Board confirmed that Ohio lawyers are permitted to use cloud computing technologies to run virtual law practices. In order to comply with their ethical obligations, lawyer must take reasonable efforts to prevent the unauthorized disclosure of confidential client data. Steps lawyers should take include analyzing “ several nonexclusive factors including 1) the sensitivity of the information, 2) the likelihood of disclosure if additional safeguards are not employed, 3) the cost of employing additional safeguards, 4) the difficulty of implementing the safeguards, and 5) the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.”

Lawyers must also vet third party cloud computing providers and confirm that the vendor understands that lawyers have a duty of confidentiality, and must also verify that the vendor will maintain and regularly back up law firm data. Finally lawyers must “(r)equire that the vendor give the lawyer notice of subpoenas for client data, nonauthorized access to the stored data, or other breach of security, and a reliable means of retrieving the data if the agreement is terminated or the vendor goes out of business.”

Next the Board moved on to address a virtual attorney’s obligation to clients. According to the Board, due to the unique nature of virtual law offices, lawyers must discuss the technologies that the firm uses with clients, along with the communication methods available, and ascertain which ones are amenable to the client. These determinations should be memorialized in the client fee agreement.

Finally, the Board turned to the issue of the office setup of virtual law firms, concluding that a physical office is not required in Ohio. However, an office address must be provided on letterhead and elsewhere which can consist of “the lawyer’s home or physical office, the address of shared office space, or a registered post office box.” And, the use of shared office space with both lawyers or nonlawyers is permissible as long as steps are taken to maintain the confidentiality of client files.

Overall, this opinion is in line with those issued in other jurisdictions and takes a reasonable stance on lawyers using cloud computing software, such as law practice management software, as part of a virtual law office setup. Notably, Ohio allows provides lawyers with flexibility when it comes to listing an office address, permitting the use of an post office box, rather than requiring virtual lawyers who have no physical office space to use their home address, as some justifications do.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. 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 can be reached at niki@mycase.com.


ABA Issues New Opinion On Secure Online Communication With Clients

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

*****

In 1999, the American Bar Association issued Formal Opinion 99-413, which permitted lawyers to use email to communicate with clients. In that opinion, the ABA Committee on Ethics and Professional Responsibility concluded: “Lawyers have a reasonable expectation of privacy in

communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet,

despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.”

Times have most certainly changed since 1999. So, too, has technology. While email used to be the best method available for electronic communication with legal clients, technology has advanced such that the security issues inherent in email make it a less desirable way to communicate with clients compared to alternative and far more secure online communication tools.

That’s why the ABA issued Formal Opinion 477 on May 11, 2017. In this opinion, the Committee concluded that because there are more secure electronic communication methods available in 2017, lawyers may want to consider avoiding email for many client communications and use other, more secure electronic methods instead.

At the outset, the Committee acknowledged that today most lawyers “primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients” including “desktop, laptop and notebook computers, tablet devices, smartphones, and cloud resource and storage locations.”

Next, the Committee noted that pursuant to an amendment to the Model Rules adopted by the ABA in 2012, lawyers now have a continuing duty to stay abreast of changes in technology. As part of that duty lawyers must take reasonable efforts to protect confidential client information from disclosure and in doing so must assess “the methods of electronic communications employed, and the types of available security measures for each method.” Furthermore, when dealing with highly sensitive confidential client information, lawyers must “inform the client of the risks involved” and advise that either extra measures should be taken to protect email transmissions or that email should be avoided altogether.

Factors to be considered when determining the appropriate way to communicate with clients in each case include:

  • the sensitivity of the information,
  • the likelihood of disclosure if additional safeguards are not employed,
  • the cost of employing additional safeguards,
  • the difficulty of implementing the safeguards, and
  • the extent to which the safeguards adversely affect the lawyer’s ability to represent

clients (e.g., by making a device or important piece of software excessively difficult to use).

The obligation to evaluate and choose appropriate technology to protect client data may be outsourced “through association with another lawyer or expert, or by education.”

Importantly, the Committee emphasized that “(a) fact-based analysis means that particularly strong protective measures, like encryption, are warranted in some circumstances.” The Committee explained that as long as lawyers have implemented basic and reasonably available methods of common electronic security measures, using unencrypted email may be appropriate for routine or low sensitivity communications, but that due to “cyber-threats and (the fact that) the proliferation of electronic communications devices have changed the landscape…it is not always reasonable to rely on the use of unencrypted email.” As such, lawyers must assess how to communicate about client matters on a case-by case basis.

The Committee recommended that lawyers take certain steps when making this assessment for each case: 1) understand the nature of the threat, 2) understand how client confidential information is transmitted and where it is stored, and 3) understand and use reasonable electronic security measures, 4) determine how electronic communications about client matters should be protected, 5) label client confidential information, 6) train lawyers ad non lawyer assistants in technology and information security, and 7) conduct due diligence on vendors providing communication technology.

The Committee concluded that the duty to vet the security measures taken by each third party provider that stores a law firm’s confidential client data is a continuing one and lawyers must “periodically reassess these factors to confirm that the lawyer’s actions continue to comply with the ethical obligations and have not been rendered inadequate by changes in circumstances or technology.”

Of note, the Committee explained that client matters involving proprietary information such as “industrial designs, mergers and acquisitions or trade secrets, and industries like healthcare, banking, defense or education, may present a higher risk of data theft” and as such reasonable efforts in those in higher risk scenarios generally requires that greater effort be taken to protect client data than simply using unsecure email to communicate. The Committee suggested a number of more secure alternatives including using secure Wi-Fi, a Virtual Private Network, and a secure Internet portal such as those routinely included with law practice management software.

The Committee clarified that cloud-based online collaboration portals are a viable option to ensure secure communication: “(I)f client information is of sufficient sensitivity, a lawyer should encrypt the transmission and determine how to do so to sufficiently protect it, and consider the use of password protection for any attachments. Alternatively, lawyers can consider the use of a well vetted and secure third-party cloud based file storage system to exchange documents normally attached to emails.”

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.

*****

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.

*****

 

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


Illinois Bar permits lawyers to use cloud computing

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

*****

Illinois Bar permits lawyers to use cloud computing

When I first started writing about cloud computing use by lawyers in 2008, most lawyers had no idea what cloud computing was. These days, the concept of cloud computing - where your law firm’s data is stored offsite on servers owned and maintained by a third party - is much more familiar and accepted. It’s no longer the mystery that it once was, in large part because its use is so prevalent in the business world and because more than 20 jurisdictions have already addressed the issue of whether it’s ethical for lawyers to use cloud computing software to store their confidential client information and have concluded that it is permissible.

The latest jurisdiction to weigh in is Illinois. Last fall, in Opinion No. 16-06 (online: https://www.isba.org/sites/default/files/ethicsopinions/16-06.pdf), the Illinois State Bar Association considered this issue and concluded that the use of cloud computing by lawyers is permissible as long as reasonable care is taken to ensure that “client confidentiality is protected and client data is secure.”

In reaching this decision, the Committee acknowledged that mandating lawyers to take specific steps when vetting a cloud computing provider would be unwise due to the rapid pace of change in today’s world: “Because technology changes so rapidly, we decline to provide specific requirements for lawyers when choosing and utilizing an outside provider for cloud-based services. Lawyers must insure (sic.) that the provider reasonably safeguards client information and, at the same time, allows the attorney access to the data.”

However, the Committee did offer the following suggested areas of focus for lawyers to consider when questioning a potential cloud computing vendor: “Reasonable inquiries and practices could include: 1. Reviewing cloud computing industry standards and familiarizing oneself with the appropriate safeguards that should be employed; 2. Investigating whether the provider has implemented reasonable security precautions to protect client data from inadvertent disclosures, including but not limited to the use of firewalls, password protections, and encryption; 3. Investigating the provider’s reputation and history; 4. Inquiring as to whether the provider has experienced any breaches of security and if so, investigating those breaches; 5. Requiring an agreement to reasonably ensure that the provider will abide by the lawyer’s duties of confidentiality and will immediately notify the lawyer of any breaches or outside requests for client information; 6. Requiring that all data is appropriately backed up completely under the lawyer’s control so that the lawyer will have a method for retrieval of the data; 7. Requiring provisions for the reasonable retrieval of information if the agreement is terminated or if the provider goes out of business.”

Importantly, the Committee clarified that lawyers have a continuing duty to ensure that each vendor they use to store confidential client data in the cloud remains in compliance: “We do not believe that the lawyer’s obligations end when the lawyer selects a reputable provider. Pursuant to Rules 1.6 and 5.3, a lawyer has ongoing obligations to protect the confidentiality of client information and data and to supervise non-lawyers. Future advances in technology may make a lawyer’s current reasonable protective measures obsolete. Accordingly, a lawyer must conduct periodic reviews and regularly monitor existing practices to determine if the client information is adequately secured and protected.”

This Committee isn’t the first to require lawyers to revisit a cloud computing provider’s security measures on a regular basis. New York, is one of the many other jurisdictions that requires this as well. Because of this continuing duty, many lawyers choose to limit the number of integrations that connect to their primary cloud-computing platform. That way, the number of third parties that have access to your law firm's data is reduced and you have fewer companies to vet on a regular basis, making it easier to maintain your ethical obligations.

So, Illinois now joins the ranks of other jurisdictions that have considered this issue and green lighted lawyers’s use of cloud computing. It’s clear that cloud computing is here to stay. It offers law firms incredible benefits, including affordability, mobility, flexibility, convenience, data backup, and secure online storage. If you haven’t already considered using cloud computing software, such as legal practice management software, in your law firm, perhaps the time is now.

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


Search Warrant Issued For Amazon Echo Data

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

*****

Search Warrant Issued For Amazon Echo Data


Amazon Echo has been around for a few years now. But last week was the first time it was reported that data from one of these devices was sought by the prosecution in a murder investigation.

For those unfamiliar with Echo, it’s a stand-alone voice recognition device that is activated when a particular word is spoken (either “Alexa,” “Echo,” or “Amazon”) by the user. Until the activation word is used, Echo actively “listens” to what’s being said around it, but it is only when the trigger word is used that it begins to record the audio received. That information is then sent to Amazon’s cloud servers for processing so that the device can respond to the inquiry with an appropriate answer. The device stops recording once the question or request has been processed. The verbal inquiries are then transcribed and both the written and, presumably (but this has not been confirmed), audio versions of the request are saved on Amazon’s servers.

In this case, Arkansas investigators are seeking to obtain data from Amazon related to the use of an Echo device that was located in the home where a murder victim was found. The prosecution served a warrant on Amazon in late-2015 and then two others in 2016.

The prosecution’s various warrants requested all "audio recordings, transcribed records, text records and other data contained on the device” along with information “that the Echo device could have transmitted to (Amazon’s) servers.” According to the most recent search warrant affidavit, the police were able to obtain some information from the Echo device in question, but believe that Amazon’s response to the warrant would provide additional information that would aid in obtaining more information from the device itself and that information being stored on Amazon’s servers could prove relevant to the murder investigation.

Thus far, Amazon has not yet complied with the search warrants. Its official response has been that, as a matter of course, it will refuse to release customer information in the absence of a valid and binding legal demand properly served on and that it must not be either overbroad or otherwise inappropriate.

Much to do has been made about this warrant by journalists and pundits, with many opining that this case is proof in fact of the privacy implications presented by having such a device in one’s home or office. I would suggest that those making that claim don’t necessarily understand how the device works. Because it is designed to record and store data received only after the “wake” word is used, in the context of this case, it’s really no different than an Internet search engine such as Google (used in its default setting, where searches are stored).

The requests you make to Echo are much like search inquiries. The fact that Echo is actively “listening” does not make it inherently more invasive, since nothing is recorded until the trigger word is used, which then causes the device to record your input. That input is arguably similar to a search entered into Google, Westlaw or Lexis. Once you provide information to any of those services with the goal of obtaining a result, those third parties providers store your request on their severs. That data is then subject to any lawful requests from law enforcement authorities and those companies must then respond to warrant requests on a case-by-case basis, just as Amazon did here.

Certainly the Echo is a new and different type of technology and, as is the case with any new technology, it may present problematic issues in some contexts. But that does not mean that the Echo is necessarily invasive and problematic simply by virtue of its uniqueness, and the search warrant issued in this case is certainly not evidence of that claim. In the context of this case, the nature of the underlying data being sought is not unusual and any attempt to use this warrant request as a reason to condemn this technology on privacy grounds is unfounded and is yet one more example of a knee jerk reaction to technology.

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.


How Lawyers Are Using Technology In 2016

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

*****

How Lawyers Are Using Technology In 2016

Every year the International Legal Technology Association releases the ILTA/InsideLegal Technology Purchasing Survey. This year’s survey results were released a few weeks ago at the ILTA conference.

According to the survey results, technology is on every lawyer's mind these days, regardless of the size of their law firm. For example, the results show that one of the top priorities for firms of all sizes in 2016 is choosing and implementing legal technology and software into their law firms, with 53% of respondents indicating that their firms would be increasing their technology spend in 2016, up from 41% last year.

For solo and small firm attorneys, incorporating technology into their firms in 2016 was a big focus. In fact, 39% of small firm lawyers reported that they planned to increase spending on technology in 2016. And cloud computing software was at the top of their technology to-do list. According to the report, small law firms were "the most aggressive regarding cloud adoption," with 61% of of small firm lawyers indicating that more than 51% of their firm's software/service offerings would be cloud-based within the next 1-3 years.

And it’s not just small firm lawyers who are embracing cloud computing. According to the survey results, cloud computing is one of the hottest topics in legal IT with firms of all sizes moving to the cloud. Some firms are doing this on an application-by-application basis while others have taken a decidedly ‘cloud first’ approach. As described the report: “More firms are moving to a ‘cloud-first’ approach and investing in technologies such as analytics, AI, virtualization, mobility solutions and other SaaS applications, turning increased productivity, efficiency and automation into profits.”

The reason cloud computing software is so popular with lawyers in 2016 is because of its many benefits. According to the survey results, the tops reasons firms were moving to the cloud included the versatility and mobility of cloud solutions (62%), flexibility (53%), overall efficiencies and cost savings (34%), and security (25%). For 43% of medium-sized firms, one of the top benefits of cloud computing that was cited was that it offered business continuity, flexibility, and mobility.

One popular category of cloud computing for law firms of all sizes was cloud storage, with 34% of those surveyed reporting that they had purchased cloud storage for their law firm within the last 12 months. And, 25% planned to invest in a cloud storage solution over the next 12 months (compared to just 16% in 2015).

Case management software was another major area of future investment for the firms surveyed, with 12% reporting that their firms had purchased case management software within past 12 months and 10% planned to invest in case management software over the next 12 months (compared to 8% in 2015).

So for 2016 and beyond, all signs point to a more proactive and positive approach to technology. Law firms are focused on incorporating new technology tools into their practices in order to increase efficiency and provide the best client service possible. Whether it's cloud computing, case management, or even AI, there are lots of exciting new tools available to help streamline law firm processes and increase productivity. Which ones will your firm be using?

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.


Lawyers and cloud computing in 2016

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

*****

Lawyers and cloud computing in 2016

I started writing about cloud and mobile computing for lawyers nearly a decade ago, urging lawyers to learn about and consider incorporating these technologies into their practices from the very start. That’s because I understood the potential of cloud and mobile computing and the tremendous benefits that each offered attorneys.

Mobile computing was adopted fairly quickly, but cloud computing was a different story. At first, lawyers were skeptical and hesitated to use cloud computing tools in their law firms. But over time, as ethics committees across the country gave cloud computing their blessing, lawyers increasingly adopted cloud computing software into their law firm’s computing arsenal, as the latest statistics from the 2015 American Bar Association Legal Technology Survey Report show.

First let’s look at mobile technology. The survey results show that the vast majority of lawyers now use laptops on a daily basis, with 76% of lawyers reporting that they use laptops as their primary computer. Interestingly, solo attorneys were the most likely to personally use laptops for law-related tasks at 82%, followed by lawyers from firms of 100-499, at 76%.

Most lawyers also use smartphones now, with 79% reporting that they personally used smartphones for law-related tasks in 2015. Lawyers are similarly incorporating tablets into their practices. 42% report using tablets in their practices in 2015, with 78% preferring iPads, followed by at Windows Surface at 12% and Samsung Galaxy at 11%.

Then, there’s cloud computing. Although the rate of adoption has not been quite as fast as it’s been with mobile technology, adoption by lawyers continues to increase. The majority of lawyers now use cloud computing for online storage, with over 59% reporting that they personally used online storage for law-related tasks in 2015, up from 45% in 2012. 62% of those lawyers are from firms of 2-9 attorneys (up from 40% in 2012), 61% are solo practitioners (up from 43% in 2012), 56% are from firms of 10-49 attorneys (up from 44% in 2012), and 50% are from firms of 100 or more attorneys (up from 52% in 2012).

Lawyers report that they use cloud computing for a variety of reasons. 71% report that they use it for the easy browser access from any location. 60% use it for the 24/7 access to their law firm’s data. 57% appreciate the low cost and predictable monthly expense. For 48%, the robust data backup and recover is important. 47% use it because it eliminates IT and software management requirements. And 46% use it because it’s quick and easy to get up and running in their firms.

In other words, cloud computing is more convenient and affordable than the more traditional premise-based software systems that lawyers are accustomed to, which accounts for the uptick in use by lawyers. So, like mobile tools, the use of cloud computing is on the rise in the legal profession, as lawyers become more familiar with the technology and the many benefits it offers.

Lawyers adoption of mobile and cloud technology into their practices is a promising development and one that has been a long time coming. Legal clients’ expectations have changed with the times and as lawyers adapt 21st century technologies into their practices, they are better able to respond to the needs of their clients and provide more effective and responsive representation.

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.


When You're Snowed In, It's Business As Usual In The Cloud

Stacked3This week's Daily Record column is entitled "When You're Snowed In, It's Business As Usual In The Cloud."  My past Daily Record articles can be accessed here.

***

When You're Snowed In, It's Business As Usual In The Cloud

In past columns, I’ve discussed the many benefits of cloud computing, including convenience and flexibility, 24/7 access to client data from anywhere, affordability, simplicity, and the ability to eliminate IT staff and software management requirements. Another important benefit of cloud computing is that it provides offline back up for your law firm’s files—something that comes in handy when your firm faces a disaster like the law office fire that I wrote about in November.

But offline back up can also be a lifesaver in the face of less disastrous events, such as the snowstorm that shut down many East Coast states in January. The storm hit on a Friday and deposited nearly two feet of snow in some areas, causing businesses to close as all activity ground to a halt. Not surprisingly, legal institutions were affected by the storm, with many courts, law libraries, government offices, and law firms closing their doors early on the Friday that the storm hit.

But just because the courts were closed due to inclement weather didn’t mean legal clients were on the same page. After all, for many clients, a snow day means lots of time on their hands. And what better to do with downtime than play catch up and figure out the status of their legal cases?

For some of these clients, that wasn’t an option. Their lawyers were either unresponsive or simply didn’t have the answers to their questions, since all of their physical case files were located in their inaccessible offices. Similarly, their computers and all of the case-related information found on them were inaccessible as well, since their lawyers used premise-based legal software and as a result, all of their law firm’s digital data could only be accessed using computers located in the office.

Other legal clients were more fortunate. Their lawyers used cloud computing software to run their law practices. Because their law firms’ data was stored off premises in the cloud, the lawyers were able to access all of their law firm’s cases and data from any Internet-enabled device, including laptops, smartphones, and tablets. The lawyers had web-based access to case files, contact information, calendars, billing and invoicing, documents, and more. For each question their clients had, they had an answer.

Other legal clients were even luckier–their lawyers used web-based practice management software with built-in client portals. All they had to do was login to their portal using any Internet-enabled device and they had instant access to information about their case. They could read updates from their lawyer about the status of their case, review and download documents, see their next court date, instantly view invoices and pay a bill via e-Check or credit card, leave a message for their lawyer, and much, much more. These clients didn’t even need to call their lawyers for case-related information–they could simply login and use the client portal to obtain all the information they needed.

In today’s competitive legal marketplace, what type of lawyer do you want to be? Just because you’re snowed in at home, doesn’t mean your law office should be out of commission. Your clients should always come first, and like the postal service, it should be business as usual during working hours, whether sleet or snow or hail. With web-based software, that’s exactly what you provide your clients: the ability to securely access information about their case at their convenience at anytime, day or night–even in the middle of one of the biggest East Coast snowstorms in history.

 

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.