Daily Record--Legal Currents Column

Pennsylvania court on social media evidence authentication

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Pennsylvania court on social media evidence authentication

Social media use is pervasive. People communicate online many times everyday. Importantly, those online interactions create digital footprints that can prove to be invaluable - and sometimes detrimental to - litigation.

Of course, the somewhat transient and unverifiable nature of online engagement can present problems for lawyers seeking to use social media evidence during litigation. Because it’s so easy for people to interact anonymously or to impersonate others online, lawyers sometimes encounter difficulties when attempting to authenticate social media evidence at trial.

The Superior Court of Pennsylvania recently provided some guidance in this regard in Commonwealth v. Mangel, 2018 PA Super 57 (2018). In this case, the court was tasked with determining what proof was required to authenticate “social media evidence, such as Facebook postings and communications.”

In reaching its decision, the Court reviewed Pennsylvania appellate court cases that addressed the level of proof needed to authenticate other types of electronic evidence, such as text messages and emails. The Court acknowledged that although social media information is similar to other electronic evidence, it also poses unique challenges “because of the great ease with which a social media account may be falsified, or a legitimate account may be accessed by an imposter.” For that reason, the authentication process for social media evidence must necessarily address those issues and provide a level of certainty regarding account ownership and authorship issues.

Of course the issue then becomes: What level of certainty is required to sufficiently eradicate any doubts regarding those issues? The prosecution asserted that the trial court applied the incorrect standard in this regard when it considered whether there was a “reasonable degree of certainty, reliability, scientific, technological certainty” that the Commonwealth had satisfied the requirements for authentication of the Facebook records.”

Notably, the Court disagreed with the prosecution, concluding that the trial court applied the correct standard: “(I)t is clear that the trial court…applied the proper standard in determining whether the Commonwealth had presented sufficient direct or circumstantial evidence that Mangel had authored the Facebook messages in question.”

Next, the court clarified how to apply that standard to social media evidence, and provided guidance for lawyers seeking to authenticate social media postings: “Initially, authentication…(of) social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity…Additionally, the proponent of social media evidence must present direct or circumstantial evidence that tends to corroborate the identity of the author of the communication in question, such as testimony from the person who sent or received the communication, or contextual clues in the communication tending to reveal the identity of the sender.”

Finally, the Court applied that standard to the case at hand, upholding the trial court’s determination that the prosecution failed to properly authenticate the social media evidence at issue: “(T)he Commonwealth presented no evidence, direct or circumstantial, tending to substantiate that Mangel created the Facebook account in question, authored the chat messages, or posted the photograph of bloody hands. The mere fact that the Facebook account in question bore Mangel’s name, hometown and high school was insufficient to authenticate the online and mobile device chat messages as having been authored by Mangel. Moreover, there were no contextual clues in the chat messages that identified Mangel as the sender of the messages.”

So, whether you practice in Pennsylvania or elsewhere, the guidance provided by the Court in this case is instructive. If your client’s case hinges on a particular piece of evidence obtained online, the more proof you can offer to establish the identity of the person responsible for creating the online posting, the better. A multi-faceted approach to establishing authorship is advisable rather than relying on forensic or contextual evidence alone. Certainly forensic evidence alone will be enough in some cases, but not all - and as I always say, better safe than sorry.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com.


Fourth Amendment ramifications of Facebook “searches” by police

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Fourth Amendment ramifications of Facebook “searches” by police

I’ve written extensively in the past about the ethical obligations of lawyers who seek to obtain evidence using social media. The specific issues addressed in ]that context are irrelevant for the purposes of this column, but of note is that all of the ethical opinions on the topic of lawyers mining social media for evidence differentiate between publicly available information and that which is only accessible behind a privacy wall. In other words, the rules are different when lawyers or their agents seek to connect with someone online via a social network in order to view posts that can only be viewed by a person’s connections or “friends.”

But what happens when law enforcement officers seek to do the same thing - obtain social media evidence that can only be accessed behind a privacy wall? One of the more interesting issues to consider is whether the conduct constitutes a search, and if so, does “friending” someone in order to view information behind a privacy wall - in the absence of a warrant - violate the Fourth Amendment?

That very issue was addressed in Everett v. Delaware, No. 257, 2017. The question asked of the court was: “When a person voluntarily accepts a “friend” request on Facebook from an undercover police officer, and then exposes incriminating evidence, does the Fourth Amendment protect against this mistaken trust?”

In this case, a police detective created a fake Facebook profile and eventually sent the defendant a “friend” request, which was accepted. The detective then monitored the defendant’s Facebook account for 2 years, viewing it 1 to 3 times per week. The defendant had a number of violent felony convictions and was thus unable to possess firearms. Shortly after he posted a photo to Facebook that included firearms, among other items, the detective applied for a warrant to search the defendant’s home, which was granted. The subsequent search resulted in evidence that was later used to prosecute the defendant for numerous felonies. The defendant was convicted after trial and this appeal challenging the constitutionality of the original search of his home was filed.

In reaching its decision, the Court applied a 2-step inquiry. Its first task was to ascertain whether the Facebook monitoring violated the Fourth Amendment or Article I, Section 6 of the Delaware Constitution. If so, then its remaining task was to, after removing the tainted evidence from the warrant affidavit, determine whether the information remaining provided a neutral magistrate with probable cause to issue a search warrant.

The Court did not reach the second step of the inquiry since it concluded that the defendant did not have a reasonable expectation of privacy when he shared information with people that he chose to make his Facebook friends. The Court explained that the defendant “assumed the risk” that one of his “friends” might be an undercover officer:

“(T)he Fourth Amendment does not guard against the risk that the person from whom one accepts a ‘friend request’ and to whom one voluntary disclosed such information might turn out to be an undercover officer or a ‘false friend.’ One cannot reasonably believe that such ‘false friends’ will not disclose incriminating statements or information to law enforcement—and acts under the risk that one such person might actually be an undercover government agent. And thus, one does not have a reasonable expectation of privacy in incriminating information shared with them because that is not an expectation that the United States Supreme Court has said that society is prepared to recognize as reasonable.”

In other words, caveat emptor: social media-users beware. The lesson to be learned is to only share information with your online “friends” that you would readily share with a law enforcement officer. After all, as I always say, better safe than sorry!

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com.


Can consent to search be obtained via Google Translate?

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Can consent to search be obtained via Google Translate?

Technological advances over the past decade have occurred at an unprecedented rate. As a result, there have been drastic improvements in machine learning and artificial intelligence technologies in recent years, making many science fiction fantasies a newfound reality. A great example of this is Google Translate, a tool that instantly translates speech.

Within the last few years, Google Translate has become widely available as a free online and mobile app and provides the immediate ability to translate words, both spoken and written, from one language to another. Because it’s so easily accessible, it should come as no surprise that it was recently used by law enforcement to interact with a suspect, resulting in a case that addressed an interesting constitutional question. Specifically, earlier this month, in U.S. v. Cruz-Zamora, the United States Court for the District of Kansas considered the issue of whether a non-English speaking individual can consent via Google Translate to a search of his car by law enforcement.

The case arose from a traffic stop which was initiated because of the defendant’s suspended registration. At the beginning of the encounter, the officer realized that the defendant spoke very little English. He then moved the defendant to his patrol vehicle and began to communicate with him using Google Translate via his car’s laptop. While speaking to him using Google Translate, the defendant allegedly gave the officer permission to search his vehicle, which the officer did, leading to the discovery of illegal drugs.

The defendant later alleged that the search was unconstitutional. During the suppression hearing, the officer admitted that a live translator would have been preferable but none were available. He also admitted that the defendant didn’t always understand his questions.

Two professional interpreters also testified at the hearing, and after reviewing the video and audio recordings of the encounter, both opined that it was clear that the defendant was often confused when responding to questions and didn’t always seem to understand what was being asked of him. They also testified that Google Translate failed to take context into consideration and thus “should only be used for literal word-for-word translations.”

In its opinion, the Court initially explained that it was the defendant’s contention that “any evidence obtained as a result of the car search should be suppressed because he did not understand (the officer) and therefore could not knowingly consent to the search.”

Next, the court determined, based primarily on the testimony of the professional interpreters, that “while it might be reasonable for an officer to use Google Translate to gather basic information such as the defendant’s name or where the defendant was travelling (sic), the court does not believe it is reasonable to rely on the service to obtain consent to an otherwise illegal search.”

The Court explained that although the audio and video recordings of the encounter showed that the defendant had a basic understanding of the questions asked of him, the testimony of the interpreters and a review of the transcript indicated that the defendant’s purported consent to search was invalid. The Court concluded that it did “not find the government ha(d) met its burden to show defendant’s consent was ‘unequivocal and specific and freely and intelligently given.’’

Next the court turned to an alternative argument made by the government: that the good faith exception applied, and thus the evidence should not be suppressed. Specifically, the government contended that the officer acted in good faith since he reasonably relied on Google Translate and its translations. In opposition, the defendant asserted that the officer could not “reasonably rely on a mistake of his own making.”

The Court agreed with the defense, and excluded the evidence:

“(T)he good-faith exception does not apply as it is not reasonable for an officer to use and rely on Google Translate to obtain consent to a warrantless search, especially when an officer has other options for more reliable translations. The government has not met its burden to show defendant’s consent was “unequivocal and specific and freely and intelligently given,”…and the court will not interpret defendant’s compliance with Wolting’s instructions to stand by the side of the road during the search as implied consent, considering the totality of the circumstances. The court finds that application of the exclusionary rule is appropriate in this case, and therefore grants defendant’s motion to suppress.”

The lesson to be learned is that while the technology has dramatically improved in recent years, it’s often far from perfect. Tools like Google Translate are improving by leaps and bounds, but it is ill-advised to indiscriminately relying on them when comprehension is crucial and carries legal ramifications. Technology is not a panacea; it merely supplements hard-earned technical skills and expertise - it doesn’t replace them.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com.


Maine Bar on use of social media evidence for litigation

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Maine Bar on use of social media evidence for litigation

The phenomenon of social media has infiltrated all aspects of our lives, so it’s not surprise that social media evidence is now a pivotal tool in litigation. Juror use of social media has resulted in mistrials across the country for more than a decade now. And trial attorneys are increasingly mining social media for evidence and researching jurors online.

Not surprisingly, the rising practice of using social media information during litigation caught the attention of ethics committees some years ago, and the first opinion on this issue was handed down in 2009. Since then, I’ve regularly covered these opinions in this column, and recently realized that I’d overlooked one that was issued by the Maine Bar’s Professional Ethics Commission last November: Opinion 217 

In the opinion, the Commission addressed both the ethics of mining social media for evidence and researching jurors online. Another issue covered was whether lawyers may connect with judges or quasi-judicial officers on social media sites.

At the outset, the Commission acknowledged that defining social media is a difficult task, since “(t)he functionality, technology and content available on the platforms that make up “social media” likely will continue to evolve dramatically in the future.” Even so, it attempted to offer a rather broad definition, defining social media networks as sites that “are used primarily for connecting socially with multiple ‘friends’ and for sharing a wide range of personal, professional and editorial information using text, links, photographs and video,” while specifically excluding sites that “lack the type of sharing of non-public information with ‘friends’ selected by the profile holder, which characterizes social media platforms.”

Next the Commission turned to using social media to obtain evidence for a pending case. The Commission sided with the majority of other jurisdictions in concluding that all publicly viewable social media information is fair game and may be viewed without issue. But for unrepresented parties, data found behind a privacy wall may only be accessed if attorneys or their agents, when making the connection request, “affirmatively disclose the purpose of the contact.” Represented parties were a different story, and all private information found behind the privacy wall was found to be off limits since any attempt to connect in order to access that information constitute impermissible communications with a represented party.

The Commission also sided with the majority of jurisdictions on the issue of whether passive notifications (like those sent by LinkedIn when someone views a user’s profile) sent by social networks to jurors constituted an impermissible communication. Like the American Bar Association Committee and the DC Bar Committee (and in contrast to the position taken by the New York State Bar Committee), the Commission concluded that only publicly viewable information could be accessed and that passive notifications to jurors sent by social media sites did not constitute impermissible ex parte communications since “any other approach would be unworkable as a practical matter and would subject attorneys to potential ethics violations based upon the happenstance of user settings or new technologies that generate automated messages outside of the attorney’s reasonable knowledge or control.” However, the Commission cautioned that “where an attorney knows or reasonably should know that accessing any social media of a juror will result in such juror becoming aware of the attorney’s access, the attorney should refrain from accessing that social media, (and) (i)f the attorney learns that any juror…has become aware of (it), the attorney must notify the Court…(which) may find it advisable to provide a cautionary instruction…”

Finally the Commission weighed in on lawyers connecting with judges online: “Attorneys are permitted to connect with judges and other judicial officers through social media, but they are precluded from having ex parte communications with, or from attempting to impermissibly influence, such judges or judicial officers through social media.” Once again, this was in line with the position taking by most other jurisdictions on this issue.

As more jurisdictions address these issues, commonalities arise in the analysis and conclusions reached. In this case, the Commission wisely acknowledged the rapid pace of technological advancement and incorporated that concept into the context of its determinations. Hopefully committees in jurisdictions that have not yet addressed these issues will follow suit, since guidelines on ethical use of technology that have flexibility built in are more likely to withstand the test of time.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com.


North Carolina Bar considers requiring technology CLE credits

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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North Carolina Bar considers requiring technology CLE credits

I’ve said it once, and I’ll say it again: technology is advancing at unprecedented rates. The impact of technology on our day-to-day lives is inescapable and the practice of law is not immune. Technology’s reach can be felt across the legal spectrum, from the use of digital evidence in the courtroom and ediscovery, to using artificial intelligence and cloud computing software to streamline law firms and the practice of law.

That’s why, in response to the rapid pace of technological change, the American Bar Association adopted of an amendment to Comment 8 to Model Rule 1.1 in 2012. The comment imposed an ethical duty on lawyers to stay abreast of changes in technology. The amended comment reads as follows:

Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer 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).

Following the enactment of this amendment, 31 states have since adopted the revised comment to Rule 1.1, including New York, which did so in March of 2015.

Then in 2016, Florida became the first state to require that lawyers complete 3 credits of legal technology CLE per biennial cycle as part of their obligation to stay abreast of changes in technology.

Since then, no other state showed signs of following that course - until now. Last month, the North Carolina State Bar Council voted to adopt proposed amendments relating to the duty of technology competence. The proposed rules provide a definition of “technology training” and mandate “that one of the 12 hours of approved CLE required annually must be devoted to technology training.” If adopted, the amendments will go into effect in 2019.

The Council defined “technology training” as follows: “(T)he primary objective of the program must be to increase the participant’s professional competence and proficiency as a lawyer. Such programs include, but are not limited to, education on the following: a) an IT tool, process, or methodology designed to perform tasks that are specific or uniquely suited to the practice of law; b) using a generic IT tool process or methodology to increase the efficiency of performing tasks necessary to the practice of law; c) the investigation, collection, and introduction of social media evidence; d) e-discovery; e) electronic filing of legal documents; f) digital forensics for legal investigation or litigation; and g) practice management software.”

The Committee also provided clarification regarding the types of CLEs that will qualify for a technology credit  - and which ones would not: “A program on the selection of an IT information technology (IT) product, device, platform, application, web-based technology, or other technology tool, process, or methodology, or the use of an IT tool, process, or methodology to enhance a lawyer’s proficiency as a lawyer or to improve law office management may be accredited… A program that provides general instruction on an IT tool, process, or methodology but does not include instruction on the practical application of the IT tool, process, or methodology to the practice of law shall not be accredited. The following are illustrative, non-exclusive examples of subject matter that will NOT receive CLE credit: generic education on how to use a tablet computer, laptop computer, or smart phone; training courses on Microsoft Office, Excel, Access, Word, Adobe, etc., programs; and instruction in the use of a particular desktop or mobile operating system.”

Will other states follow suit and mandate technology CLEs for lawyers? Only time will tell. But all signs point to this being the prudent course of action. After all, technology is here to stay and ignoring it is no longer an option. Lawyers need to stay up-to-date and a helpful nudge in the right direction by state bar associations may be the best solution for those attorneys who are unwilling to undertake this task on their own.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com.


Will Robots Replace Lawyers?

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

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Over the past year, there’s been a lot of talk about artificial intelligence (AI) and its potential, both negative and positive. Some tout an idyllic world where robots cater to the every want and need of humans. Others, like Elon Musk, take a more guarded approach and warn of a world where machines gain sentience and threaten humanity.

Philosophical issues aside, AI remains in its infancy, but already shows great promise. You need look no further than self-driving cars for proof of that.

But what does it mean for the legal industry? How will AI impact the practice of law and will robot lawyers soon become a reality, thereby eradicating the need for human lawyers? The short answer: AI won’t replace lawyers, but it will automate the more mundane aspects of practicing law, allowing lawyers to focus on more interesting, high level analytical tasks.

Not convinced? Consider the results of the 2016 Deloitte study, “Developing Legal Talent: Stepping Into the Future Law Firm." The central thesis of this report is that by 2020, the practice of law will be dramatically different than it is today, in large part due to the effects of technological change, with AI playing a large part. 

For starters, one of the conclusions was that 114,000 jobs in the legal sector will become automated within the next 20 years. And, according to the report, automation has already resulted in the reduction of 31,000 jobs in the industry, mostly in administrative roles. For lawyers, those most at risk are predicted to be entry level attorneys, and highly skilled lawyers will be safe from the reductions. The report indicates that demand for highly skilled lawyers will increase to 25,000 more by 2020. 

Specifically, over the next 10 years, it is predicted that the following changes will likely occur because of changes in technology:

  • Fewer traditional lawyers in law firms
  • A new mix of skills among the elite lawyers
  • Greater flexibility and mobility within the industry
  • A reformed workforce structure and alternative progression routes
  • A greater willingness to source people from other industries with non-traditional skills and training.

And it’s not just transactional law that will be affected. Litigation practices will also feel the touch of AI. Look no further than the news from last week that Ogletree, Deakins, Nash, Smoak & Stewart, a labor and employment-focused Am Law 100 firm, now uses LegalMation, AI software that works with IBM’s Watson technology to draft an answer to a complaint. With this software users drag and drop a PDF of the complaint into the platform and designate a practice area. The software then drafts an answer to the complaint, which it provides within approximately 2 minutes.

Ready or not, AI is here. AI and the automation of much of the mundane aspects of law practice will undoubtedly have a tremendous impact on the practice of law - and much earlier than you might think. So it’s worth learning about how it might affect our profession so that you can take steps to position your practice and your firm to take advantage of the changes, rather than be displaced by them. 

Mark my words: AI will undoubtedly change the legal profession. You can either resist its impact to your detriment, or take steps to acclimate and use it to your advantage. The choice is yours.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com.


ABA survey shows lawyers are more mobile than ever in 2018

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

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ABA survey shows lawyers are more mobile than ever in 2018

The iPhone was released in 2007, and it revolutionized the way that we communicate and access information. Smartphones, once a novelty, are now commonplace, in the legal profession. This is because, unlike other types of technology, lawyers jumped on the mobile bandwagon fairly quickly.

As evidenced by the results of the 2017 ABA Legal Technology Survey, lawyers are more mobile than ever before. The reasons are many: mobile computing offers convenience, flexibility, and 24/7 access to important information. Given all the benefits, it’s no wonder that lawyers have taken to mobile devices like a fish takes to water.

According to the survey results, lawyers use a number of different types of mobile devices for law-related tasks while away from their offices. Smartphones are the most commonly used, with 96% of lawyers reporting that they used smartphones while outside the office. Lawyers from firms of 10-49 and from firms of 100-499 used them the most often, with both sets of lawyers reporting usage levels at 98%. Next up were lawyers from firms of 500 or more (97%), followed by lawyers from firms of 50-99 (96%), 2-9 (95%), and solos (93%).

Laptops are also popular, with 81% of lawyers using them for law-related purposes while away from the office. Lawyers from firms of 500 or more reported the greatest use of laptops while out of the office (94%). Lawyers from firms of 100-499 were next at 89%, followed by lawyers form firms of 50-99 (85%), 2-9 (83%), 10-49 (82%), and solos. (74%).

Lawyers were the least likely to use tablets for mobile access while away from the office, with 50% reporting that they did so. Lawyers from firms of 500 or more used tablets the most often (61%). Next up were lawyers form firms of 2-9 (52%), followed by lawyers from firms of 10-49 (51%), solos (49%), lawyers form firms of 50-99 (46%), and lawyers form firms of 100-499 (36%).

According to the lawyers surveyed, they used mobile devices from a variety of different locations.The most common place that lawyers used their mobile devices was their home (96%), followed by hotels (93%), while in transit (89%), airports (85%), clients’ offices (75%), in the courthouse (70%), and other attorneys’ offices (71%).

When it comes to courtroom usage, according to the survey, 57% of lawyers who appear in court have used laptops in the courtroom, up from 46% in 2014. Tops uses for laptops include email (34%), accessing key evidence and documents (33%), legal research (29%), accessing court documents and dockets (27%), calendaring (24%), and delivering presentations (23%).

80% of lawyers who appear in court report using their smartphone in court. Some of the most popular uses include: email (72%), calendaring (58%), real-time communications (44%), legal research (24%), accessing court dockets and documents (15%), and accessing the firm’s network (14%).

When it comes to tablets, 38% of lawyers who appear in court reported using them in court. Tablets were used to accomplish a number of tasks, including email (29%), legal research (25%), calendaring (21%), accessing court documents and dockets (16.5%), and accessing key evidence and documents (15%).

So that’s how lawyers are using mobile devices to practice law in 2018. How does your mobile device usage compare? If you use your mobiles devices less often than your colleagues, perhaps you’re not fully taking advantage of the many benefits the mobile computing offers.
Then again, there are undoubtedly drawbacks to the mobile age, not the least of which is the psychological impact of the perception of 24/7 availability. While it’s not always an easy juggling act, the benefits of mobile access are many, both for lawyers and their clients. The key is to find the right balance between the convenience of easy access to information and maintaining the necessary boundaries between work and your home life. Once you’ve found a balance that works for you, you’ll reap the benefits of the flexibility of mobile computing.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive, powerful 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.black@mycase.com.

 


Pennsylvania also weighs in on email tracking

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

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Pennsylvania Also Weighs In On Email Tracking

Last week I wrote about the recent ethics opinion out of Illinois, Opinion 18-01, wherein Illinois joined Alaska and New York in concluding that it is unethical for lawyers to use email tracking software. The Alaska committee specifically limited the prohibition to apply to emails with opposing counsel, whereas the other committees offered a broader prohibition that applied to all emails sent by a lawyer.

After my column was published, I learned that Pennsylvania had also issued an opinion addressing email tracking last year, Formal Opinion 2017-300. At issue in this opinion was whether it was ethically permissible for lawyers to use email tracking software when communicating with opposing counsel. As was the case in the Alaska opinion, the inquiry was specifically limited to emails sent to opposing counsel, as opposed to clients and other types fo recipients.

First, the Committee addressed the issue of how email tracking can affect attorney-client confidentiality when used with opposing counsel. The Committee concluded that information gleaned from the tracking tool could constitute an unwarranted intrusion into that confidential relationship, and provided the following scenario by way of example: “(W)hen a lawyer receives a document in the mail from opposing counsel and forwards it to a client, the lawyer and the client may reasonably believe that the sender is not aware of that subsequent communication, including when and how it was transmitted, when the client viewed it, and when or if the client forwarded the document to another person. The use of web bugs is contrary to this assumption.”

Next, the Committee explained that using email tracking tools when communicating with opposing counsel is also problematic because the lawyer receiving the email is unaware of the tracking software and is unable to do anything to disable it: “(T)his Committee believes that their use violates Rule 8.4’s prohibition against ‘conduct involving dishonesty, fraud, deceit or misrepresentation.’ Because the lawyer receiving the email does not and cannot reasonably determine or protect against web bugs, the sending lawyer’s use of these devices would violate Rule 8.4.”

Accordingly, the Committee concluded that using email tracking tools when communicating with opposing counsel is unethical: “This Committee concludes that the Pennsylvania Rules of Professional Conduct prohibit lawyers from using ‘web bugs’ or any other method to track the receipt and distribution of email sent to opposing counsel. While the use of visible tracking devices such as those used in commercial email do not violate the Rules of Professional Conduct, the use of a web bug, which opposing counsel cannot determine is present, violates Rules 4.4 and 8.4.”

Of interest is that the Committee exempted two specific types of email tracking tools from its conclusion and determined that they were ethically permissible: 1) email list services and 2) “read receipt” tools. The Committee explained that in both cases, the recipient has the ability to opt into the tracking, thus differentiating these tools from the email tracking software at issue in the opinion.

The Committee explained that email list software, such as Mail Chimp, did not violate the ethics rules since “(1) they are mass emails, and not personal to a client matter; (2) those services display their links to encourage users to click on them; and (3) lawyers and other recipients are aware that they are clicking on the links.”

Similarly, “read receipt” or “delivery receipt” tools, which are available for use in many email platforms, including Outlook, were permissible for lawyers to use since “recipients are aware of, and may configure their software to permit such receipts, to make their use optional, or to preclude their use…”

So, Pennsylvania lawyers have joined the ranks of those who should avoid using email tracking tools with opposing counsel. For those of you who practice in one of the many jurisdictions where this issue has not yet been addressed, I would suggest that it would be wise to err on the side of caution and, in the absence of consent, avoid using software with opposing counsel that could provide insights regarding their online behavior, whether it’s part of an email program or otherwise. After all, it’s better to be safe than sorry.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive, powerful 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.black@mycase.com.


Here’s How Lawyers Can Demystify Legal Technology

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

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Here’s How Lawyers Can Demystify Legal Technology

In last week’s column, I shared an assortment of online resources that lawyers can use to stay on top of legal technology. It’s not an easy task, given the rapid pace of technological change. Not surprisingly, that’s why some lawyers ignore technology altogether: it’s overwhelming for them to even consider learning about emerging technologies.

Doing so is undoubtedly a mistake, since 31 states now require lawyers to maintain technology competence as part of their ethical obligations, of which New York is one. But the question remains: how can lawyers find time to educate themselves about technology?

One way is to take advantage of the resources offered by your local and state bar associations. For example, when the recently formed Technology and Law Practice Committee that I chair for the Monroe County Bar Association meets each month, we host remote technology-related Q&As with legal technology experts. Our goal is to educate bar members and help them make better choices when it comes to incorporating technology into their firms.

These Q & As can be attended by all bar members, even if they’re not able to attend the meeting in-person, since the sessions are hosted online via GoToMeeting. This makes it easy for lawyers to sign in and participate remotely from their office computers. Recordings of those Q&As are also available online at the Bar’s website. Past interviews have included well-known legal technology experts Bob Ambrogi, Kevin O’Keefe, Mitch Kowalski, and Allison Shields. Next month’s meeting will be a Q & A with Jim Calloway, Director of the Oklahoma Bar Association's Management Assistance Program, so I hope you can join us!

Another way to stay abreast of technological change is by taking advantage of CLEs designed to help solo and small firm lawyers sift through the vast amounts of information about legal technology that’s available, both online and off. By attending these CLEs, you’ll learn the ins and outs of legal technology, which will help you make the right choices for your law firm.

In June, there’s a CLE planned locally that will help you do just that, so if you’re a Monroe County lawyer who’s struggling to incorporate technology into your law firm, you’re in luck. The Technology and Law Practice Committee is putting on a seminar on June 22nd at 12:15 entitled, “Demystifying technology: How to effectively - and ethically - use technology in your law firm.” You can register for it at the Bar’s website.

Meredith Lamb, a matrimonial attorney with Weinstein & Randisi, will be moderating a panel discussion during which you'll hear from two Rochester-based solo lawyers who have successfully implemented technology into their law practices: Danielle Wild and Aleksander Nikolas. They'll explain how and why they chose the specific tools they rely on every day to streamline their law firms. You’ll also hear their advice and practical tips, including lessons learned from their experiences. I’ll also be on the panel and will speak about the duty of technology competence and will explain why it's important for New York lawyers to make educated decisions about whether or not to use technology in their practices. The ethics of using cloud computing software will be discussed, along with examples of how different types of technology can streamline a practice. Finally, you’ll learn about resources that will help you stay on top of technology changes.

So if one of your priorities this year is to update your legal technology know-how, then this CLE is for you. With just a small investment of your time, you’ll gain lots of knowledge and will leave armed with the information you need to make informed technology decisions for your law firm. 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive, powerful 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.black@mycase.com.


Illinois weighs in on ethics of email tracking for lawyers

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

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Illinois Weighs in on Ethics of Email Tracking for Lawyers

As technology evolves, so too do the tools we use to enhance even the most basic technologies that we interact with on a day-to-day basis. For example: email. It’s been part of our lives for decades now, and while it hasn’t changed much, there are a multitude of tools available that increase its functionality.

That’s why ethical issue relating to lawyers’ use of email continue to arise even though email use by lawyers was given the ethical nod more than 20 years ago. Some concerns relate to the security of email now that more advanced and encrypted methods of electronic communication are available. Other issues revolve around the use of tools designed to enhance the functionality of email, such as email tracking.

I last wrote about the ethics of the use of email tracking software by lawyers in December 2016, after the Alaska Bar Association Ethics Committee concluded in Opinion 2016-1 that even if the use of email tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical.

More recently, the Illinois State Bar Association addressed that very same issue in Advisory Opinion 18-01. Specifically, the inquiring attorney asked whether “the use of undisclosed ‘tracking’ software (sometimes known as ‘web bugs,’ ‘web beacons,’ or ‘spymail’) in emails or other electronic communications with other lawyers or clients is ethically permissible.”

At the outset of the opinion, the Committee explained that this type of software typically tracks, among other things: “1) when the email was opened; 2) how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities); 3) how many times the email was opened; 4) whether the recipient opened attachments to the email; 5) how long the attachment (or a page of the attachment) was reviewed; 6) whether and when the subject email or attachment was forwarded; and 7) the rough geographical location of the recipient.”

Next, the Committee noted that most lawyers operated under the very reasonable assumption that electronic communications with opposing counsel would be free from any type of tracking. The Committee explained that this was especially so given the nature of the information that could be obtained via email tracking software, including “how much time the receiving lawyer spent reviewing the communication – including even specific pages of documents – or how frequently the communication was viewed (a proxy for how important the receiving lawyer deemed it to be), whether and when it was forwarded either to the client or co-counsel or otherwise, the location of the recipients, and the details of the recipients’ review of the document.”

Next, the Committee turned to the sensitive nature of the information that could be obtained from email tracking, opining that the use of such software to track electronic communications with opposing counsel evidences “the lack of straightforwardness that is a hallmark of dishonest conduct.”

Accordingly, the Committee concluded that even if the use of email tracking tools were disclosed to opposing counsel, their use was nevertheless impermissible since the software allowed “the sending lawyer to intrude upon the attorney’s work product by tracking the attorney’s use of that document, (thus constituting) an unwarranted intrusion into the attorney-client relationship.”

Other than Illinois and Alaska, the New York State Bar is the only other bar I’m aware of that has addressed this issue and it reached a similar conclusion. In 2001 in Opinion 749, the Committee on Professional Ethics determined that a lawyer may not “use available technology to surreptitiously examine and trace e-mail and other electronic documents.” So, New York lawyers are likewise barred from using email tracking software.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive, powerful 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.black@mycase.com.