Law & Technology

Alaska weighs in on risks of blind copying clients on email

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

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Alaska weighs in on risks of blind copying clients on email

In the mid-1990s, bar associations began to green light email, opining that lawyers could ethically use email to communicate with clients. However, that permission was granted with the proviso that as technology improved, alternate, more secure methods of digital communication might emerge thus rendering unencrypted email to be an outdated mode of client communication.That’s why, last May the American Bar Association issued Formal Opinion 477, in which the ethics committee concluded that unencrypted email was inherently unsecure and that lawyers must either use a more secure method of communication with clients, such as secure online client portals or encrypted email, or determine on a case-by-case basis whether using email would be ethically permissible.

A recent opinion issued by the Alaska Bar Association provides further evidence of the complexities encountered hen lawyers use email for client communication. At issue in Ethics Opinion 2018-1 was whether it was ethical for a lawyer to “cc” or “bcc” a client in on email correspondence with opposing counsel. Specifically, the Committee was concerned with the potential risks of waiving attorney-client privilege in that scenario. The Committee also considered the ethical obligations of counsel when responding to an email wherein opposing counsel’s client is copied in on the email.

The Committee determined that for confidentiality reasons, it is unwise to “cc” one’s client in on all but purely administrative emails, such as notifications of future court dates: “Recognizing the obligation to protect a client’s secrets and confidences, it is not advisable for a lawyer to ‘cc’ their client in a message to opposing counsel concerning the subject of the representation or any other matter that may give rise to a response that could reveal a client confidence or secret.”

The Committee also concluded that if a lawyer plans to “cc” a client in on emails, it is important to obtain the consent of opposing counsel before doing so, since lawyers are prohibited from communicating with communicating with opposing parties in the absence of consent from their attorneys. The Committee explained the risk as follows: “E-mail addresses often do not obviously indicate the identity of the person behind the address. A lawyer who ‘replies all’ may therefore be unaware that the ‘cc’ includes a represented party. So too, e-mails can often include a long list of ‘cc’d’ recipients, once again making it difficult to discern if a represented party has been included in that list. Inadvertent communications with represented parties can easily occur even with reasonable care exercised by the recipient of the e-mail.”

Next the Committee turned to the issues presented when an attorney chooses to “bcc” a client. The Committee adopted the position taken by the New York State Bar Association in 2015 in Ethics Op. 1076, concluding that lawyers should avoid doing so since a “client who receives an e-mail as a ‘bcc’ may ‘reply all’ and inadvertently communicate directly with opposing counsel. An unsophisticated client may not realize the effect that the communication may have on disclosing matters that otherwise would be confidential.”

Finally the Committee recommended that should a lawyer who chooses to communicate with clients using email wish to share with a client information from an email sent by opposing counsel, the most prudent course of action would be to simply forward the email to the client.

Alternatively, instead of jumping through all of these hoops in order to be ethically compliant when using email, 21st century lawyers now have a more secure, foolproof way of sharing information with clients, including emails from opposing counsel: the secure online portals often built into law practice management software. Instead of running the risk of breaching client confidences by inadvertently “bcc’ing” or “cc’ing” clients, you can instead share the email with your clients via secure online portals designed for that very purpose. Doing so not only avoids the host of ethical minefields presented when emailing with your clients and opposing counsel, but also allows you to be in full compliance with ABA Op. 477, and sidestep the security issues presented by email altogether.

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.

 

 


Top resources for lawyers seeking technology competence

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

*****

Top resources for lawyers seeking technology competence

These days, technology is unavoidable. Even lawyers can’t escape it and now regularly use technology as part of their day-to-day practices. For example, according to the 2017 American Bar Association’s Legal Technology Survey Report (“Report”), 94% of lawyers now use smartphones for law-related purposes.

Cloud computing has made its mark, too, with more lawyers using it in 2018 than ever before. In fact, according the Report, the number of lawyers incorporating cloud computing software into their law practices increased by 14% over the past year. The survey results showed that after remaining stagnant at ~30% from 2013-15, and then increasing to 38% in 2016, there was a large increase in 2017, and that percentage jumped to 52%.

Of course, although the use of technology in law firms is increasing at a rapid clip, that doesn’t mean that all lawyers should be using technology. Instead, it’s up to each lawyer to determine if and when to implement technology tools into their practice. But in order to do that, you need to fully understand the technologies available to you. Otherwise you won’t be able to make educated decisions about technology.

Because of the rapid pace of technological change, the thought of learning about emerging technologies often seems overwhelming to lawyers, leading some lawyers to choose to ignore technology altogether. Rest assured, that’s a mistake, especially now that 31 states require lawyers to maintain technology competence as part of their ethical obligations, of which New York is one.

Since ignoring technology isn’t an option, here are some resources to help you learn about the latest legal technology options so that you can make educated choices about implementing technology into your law firm.

First, there’s a great book focused on helping solo and small firm lawyers to make wise decisions about technology tools for their law office, “The 2018 Solo and Small Firm Legal Technology Guide,” which is published by the American Bar Association. This book is written by legal technology experts and is full of the information solo and small-firm lawyers need in order to make knowledgeable, informed decisions about law office technology. The authors — Attorney Sharon Nelson, Certified Information Systems Security Professional John Simek, and Digital Forensics Examiner Michael Maschke — cover a vast range of hardware and software tools, provide a wealth of information and tips on choosing the right technology for your firm, and offer their perspective on the impact of emerging technologies on the practice of law.

Blogs are another great resource for lawyers seeking to learn about legal technology. However, there are a lot of blogs out there, so choosing which ones to follow isn’t always easy. To get you started, here are some of my favorite legal technology blogs.

First, there are the legal technology columns at Above the Law. These columns are written by a number of different legal technology bloggers here (myself included), and are always informative and cover a variety of legal technology issues.

Next, a blog that has been around since 2002: Bob Ambrogi’s LawSites, which provides news about the legal tech industry and lots of great advice for lawyers seeking to learn more about using technology in their practices.

Other popular legal technology blogs to consider include: 1) Future Lawyer, written by the always-knowledgable Florida litigator Rick Georges; 2) Technologist, a group blog; 3) Divorce Discourse, where attorney Lee Rosen shares technology and law practice management advice; 4) Law Practice Tips, a blog chock full of wisdom from Jim Calloway, an attorney and the Director of the Oklahoma Bar Association’s Management Assistance Program; 5) iPhone JD, where attorney Jeff Richardson covers all things Apple-related, including iPhones and iPads; 6) Ride the Lightening, which covers a variety of interesting legal technology issues and is authored by lawyer Sharon Nelson, who offers her opinion on the effect of legal technology on the practice of law; and 7) the MyCase blog, where I regularly write about a host of legal tech issues.

So now that you know where to turn to learn all about legal technology, what are you waiting for? Start reading some of these resources today, and you’ll be well on your way to the technology competence needed to make the right legal technology choices 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.


New York Court of Appeals on discoverability of Facebook messages

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

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New York Court of Appeals on discoverability of Facebook messages

For litigators, social media platforms have increasingly become an invaluable source of evidence. So it’s not surprising that discovery disputes often arise regarding the scope of requests for social media-related information.

Last month, one of those discovery disputes reached the New York Court of Appeals in a negligence case relating to injuries that the plaintiff suffered after a fall from a horse. In Forman v. Henkin, the plaintiff alleged that the injuries were caused by the negligence of the defendant and owner of the horse. During the course of discovery, the defendant sought access to the plaintiff’s entire Facebook account - including information that was located behind the privacy wall that could be seen only be the plaintiff’s “friends” and, presumably, private Facebook messages as well - after she’d made reference to the Facebook data during a deposition. At issue was whether the information behind the Facebook privacy wall was relevant to the issues at hand and thus discoverable.

At the outset, the Court wisely acknowledged that that the online was no different than the offline when it came to the application of the standards governing discovery requests: “While Facebook – and sites like it – offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.”

Next, the Court clarified that the appropriate determination to be made when a party seeks evidence found on social media platforms is whether the information is relevant to the issues in the case. The court explained, “New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information…In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. Thus, we reject the notion that the account holder’s so-called ‘privacy’ settings govern the scope of disclosure of social media materials.”

The Court cautioned, however, that a discovery request for social media-related information does not trigger mandatory disclosure of all posts. The Court then turned to an offline equivalent to make its point: “Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation – such an order would be likely to yield far more nonrelevant than relevant information.”

The Court then explained that a 2-prong inquiry should be made by courts considering motions relating to discovery requests for social media data: “Courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials…Temporal limitations may also be appropriate – for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.”

Unlike some other New York courts that have addressed these types of issues, the court did not differentiate between social media posts behind a privacy wall that are viewable by all of the person’s “friends” versus private messages sent only to one person. Instead, the court put the onus on the plaintiff to take measures to prevent disclosure of “sensitive or embarrassing” information explaining that “the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.”

Overall, this was an instructive opinion that provides necessary guidance to New York litigators seeking to use social media evidence in their cases. That being said, I do wish that a distinction had been made regarding the different types of posts on Facebook, rather than grouping all non-public posts made behind the privacy wall together. Private messages between two people are, as one Appellate Court judge has noted in the past, more akin to diary entries and thus may not be discoverable absent a greater showing of relevancy. Nevertheless, the highest court in New York has spoken. New York litigators, take note.

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.


Round Up: Robot Lawyers, Document Management Software, Productivity Tips, & More

SpiralI often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from February 2018:


New York Bar on providing digital documents to clients

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

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New York Bar on providing digital documents to clients

Like it or not, we now live - and practice law in - a digital world. For example, efiling is quickly becoming the norm in many jurisdictions. In fact, according the 2017 ABA Legal Technology Survey Report, for 55% of survey respondents, efiling is mandatory in state court. For another 47% it’s mandatory in local court. So, it’s not surprising that most lawyers have efiled documents, with 87% of solo attorneys reporting that they’ve done so, along with 96% of lawyers from firms firms with 10-49 attorneys, 96% of lawyers from firms of 2-9, and 94% of lawyers from firms of 100 or more.

Of course, a condition precedent to efiling is that legal documents be digitized. That’s one reason so many lawyers are moving to paperless law firms (or at the very least, firms with less paper). As a result of this transition, many law firms now store the majority of their documents in digital form only.

This increasing digitization of legal documents resulted in the presentation of a novel issue to the New York State Bar Association’s Committee on Professional Ethics in January. In Opinion 1142, the inquiring attorney asked whether lawyers are required to provide former clients with copies of their files in the format specified by said clients and, if the requested files are maintained in a digital format, can the law firm charge clients who request paper copies of their digital files for the cost of printing and mailing said documents?

In the case at hand, the inquiring attorney’s firm used a cloud-based client portal to provide clients with access to their documents. As explained in the opinion, “(w)hen a former client requests a copy of his or her file, the firm provides a link to a secure, password-protected cloud storage facility containing the client’s file.”

This inquiry arose because a former client of the firm’s, who happened to be incarcerated, requested that a paper copy of his file be sent to his spouse. Because the file was stored in electronic form and printing out the entire file would be costly, the firm requested that the Committee opine on the firm’s obligations in regard to sending the file in the specified format as requested by its former client.

At the outset, the Committee explained that in most cases, lawyers are not required to maintain client files in any particular format and confirmed that “the Rules permit electronic copies to be kept in lieu of paper originals.” The Committee also explained that clients are generally entitled to obtain copies of their files pursuant to Rule 1.15(c)(4) of the New York Rules of Professional Conduct, which provide that lawyers must “promptly . . . deliver to the client . . . as requested by the client . . . the funds, securities or other properties in the possession of the lawyer that the client . . . is entitled to receive.” 

Regarding the issue of recouping the costs of providing file copies, the Committee noted that it is typically permissible for lawyers to “charge a former client the reasonable fees and expenses of assembling and delivering to the former client those documents that the client is entitled to receive.” The Committee then determined that “the costs of preparing electronic documents for delivery to the client are analogous to the costs of assemblage of paper documents that were at issue in that case.”  

As such, the Committee concluded that in the case at hand, where the documents were being provided to a client who had retained the services of the law firm, the firm “may charge the client the reasonable fees and expenses incurred in printing out and delivering a paper copy.”

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.


iPhone health app data used in murder prosecution

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

*****

iPhone health app data used in murder prosecution

If, like me, you’re a fan of the Netflix series, Black Mirror, then you’re well aware of the many ways that our digital footprints can potentially be used against us. In this series, the writers envision futuristic timelines where technologies currently available are taken to their extreme, resulting in disturbing, dystopian story lines, some of which have since come to fruition in one way or another.

The message of this series is clear: technology can greatly benefit our lives, but also creates the potential for unbridled violations of our privacy by governmental and corporate entities. It’s a delicate balance of interests that can easily go awry in the absence of careful, thoughtful regulation. And unfortunately, technology is moving so quickly that legislators simply can’t keep up.

One area where we’re seeing this delicate balance play out is in the courtroom. Data from mobile and wearable devices is increasingly being used in both civil and criminal cases.

For example, in mid-2015 I wrote about an emerging trend where data from wearable and mobile devices was being used in the courtroom (online: http://nydailyrecord.com/2015/08/14/legal-loop-wearable-tech-data-as-evidence-in-the-courtroom/). In that column I discussed two cases where Fitbit data was used: one where it was offered as evidence to support a personal injury claim and the other where it was used to disprove a complainant’s rape allegations.

Then, in early 2017, I wrote about another case where Fitbit data and other digital evidence was used to support the prosecution of a criminal matter (online: http://nydailyrecord.com/2017/04/28/legal-loop-fitbit-data-other-digital-evidence-used-by-prosecution-in-murder-case/.) In that case, a wealth of digital data was used by the prosecution to refute the defendant’s version of the events leading to his wife’s death, including cell phone records, computer data, text messages, information from Facebook, and his wife’s Fitbit data.

More recently, data from the iPhone Health App was used in court in Germany as part of a murder prosecution. In this case, the defendant was accused of murdering a medical student. The investigators were able to access his phone and obtain data from its Health App. Data collected by that app includes the number of steps taken, nutrition and sleep patterns, and a range of body measurements including heart rate. The app also provides geolocation data regarding the movement of the phone.

The data collected from the app corresponded to the prosecution’s theory of the case and its timeline of events leading up to and following the murder. The geolocation data provided evidence of the defendant’s movements throughout the evening in question, while the heart rate data indicated two different periods of “strenuous activity” which the app suggested involved the climbing of stairs.

A police investigator who was of similar size to the defendant recreated the events as it was believed they occurred and then compared the investigator’s Health App data to the defendant’s. The prosecution alleged that the similarities in the data indicated that the defendant was likely dragging the victim’s body down the stairs when his app indicated he was engaged in strenuous activity involving the climbing of stairs, thus supporting their theory of the case.

Once again digital data gleaned from a mobile device was used in court in an attempt to convict an accused rapist and murderer. The use of digital data for this purpose is something most people would likely agree with. However, there is a very real potential for abuse of the data our devices are collecting about us, as the Black Mirror series points out. Where we, as a society, choose to draw that line remains to be seen.

In the meantime, astute lawyers will educate themselves about the types of data available to them and will likewise be cognizant of the ways that data can be used in the courtroom to forward their client’s interests. In 2018, anything less would arguably be malpractice.

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.


Survey says: Law firms should invest in business development and technology

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

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Survey says: Law firms should invest in business development and technology

Since the economic downturn in 2008, law firms of all sizes have struggled - and most have failed - to maintain profits at levels existing prior to the market’s near-collapse. During that same timeframe, technology has advanced at unprecedented rates, affecting all aspects of the practice of law and ushering in a new age where globalization and changes in practice models have radically altered client expectations.

Study after study has confirmed the permanency of this newfound reality. Unfortunately, in most cases, the repeated recommendations of legal industry experts regarding the changes law firms need to make in order to stay afloat in the midst of this new world order often fall on deaf ears. This very phenomenon was adeptly described in the recently released 2018 Report on the State of the Legal Market, issued by The Center for the Study of the Legal Profession at Georgetown University Law Center and Thomson Reuters Legal Executive Institute.

The authors explained that rather than adapt, law firm leaders often dig in their heels and stay the course, even if it’s a failing one: “The phenomenon of ‘consensual neglect’ seems a particularly apt description of the strategic posture of many (if not most) law firms in today’s rapidly changing market for legal services. Ignoring strong indicators that their old approaches – to managing legal  work processes, pricing, leverage, staffing, project management, technology, and client  relationships – are no longer working, they choose to double down on their current  strategies rather than risking the change that would be required to respond effectively to evolving market conditions.”

This despite the fact that one of the key recommendations that the authors make (and many other experts have made in the past) centers around a concept that should be palatable to lawyers since it’s the very essence of what we do: providing good client service. In other words, according to the authors, it’s imperative to provide the type of legal representation that 21st century clients want, not what lawyers think they need: “To be successful in addressing the new market realities, however, it is essential for firms to listen carefully and respond proactively to the concerns of their clients. And those concerns – at least since 2008 – have been driven by consistent client demands for greater efficiency, predictability, and cost effectiveness in the delivery of legal services.”

With the advent of sites like Legal Zoom and the rise of alternative legal service providers, competition is increasing and legal clients have more options than ever before. Law firms that ignore client demands for change are doing so to the detriment of their bottom line.

That’s why, according to the Report, the law firms that proactively addressed client needs “by implementing alternative staffing strategies, pursuing flexible pricing models, adopting work process changes, making better use of innovative technologies, and the like,” exhibited a what the authors referred to as a “dynamic response” to the changing landscape, thus achieving a better success rate than their more static counterparts.

According to the authors, the size of the firm was irrelevant, and instead investment in two primary areas were indicators of success: business development and technology. “These differences in investments by dynamic firms in both business development and technology suggest a philosophy of active engagement that is also reflected in the details of the expenditures. Dynamic firms reported that increased expenses in business development were designed to facilitate more client interactions and direct client meetings, business development coaching for lawyers, and brand development. Dynamic firms said their technology investments were focused on improving workflow efficiency, as well as enhancing their ability to assess profitability and better analyze data.”

So whether your firm is large or small, the lessons to be learned are clear. Turning a blind eye to change is not an option. Listen to your clients and respond strategically to their expectations. Take steps to facilitate improved client communication and understanding, whether through the use of improved processes or technology. Business development is a necessity; ignore it at your peril. And, finally, invest in technology to improve your law firm’s efficiency and increase profitability. Your clients, and your law firm’s bottom line, will thank you.

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 on Client Confidentiality in the 21st Century

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

*****

ABA on Client Confidentiality in the 21st Century

These days, news is shared in many ways, with online news outlets and social media sites contributing to the rapid - and sometimes viral - dissemination of information. Not surprisingly, details distributed online can sometimes trigger client confidentiality issues. For that reason, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (“Committee”) recently addressed the duty of client confidentiality owed to former clients when information about a client becomes “generally known” after being shared online and through other news channels.

In Opinion 479, the Committee considered an exception to the client confidentiality relating to former clients. Specifically the Committee examined the exception found in Model Rule 1.9(c)(1) that permits lawyers to use information that is “generally known” to a former client’s disadvantage despite lack of consent from the former client.

As the Committee explained, Model Rule 1.9(c)(1) provides that a lawyer shall not use information relating to a former client’s representation ‘to the disadvantage of the former client except as [the Model] Rules would permit or require with respect to a [current] client, or when the information has become generally known.”

The primary issue considered in this opinion revolved around defining the concept “generally known.” At the outset, the Committee explained that there was a distinction between “publicly available” and “generally known”: “Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes.”

Next, the Committee acknowledged that modern technology has made its mark on this concept, explaining that information “may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media.”

Next the Committee provided insight into how information becomes generally known in the context of a client’s chosen career: “(I)nformation should be treated as generally known if it is announced, discussed, or identified in what reasonable members of the industry, profession, or trade would consider a leading print or online publication or other resource in the particular field. Information may be widely recognized within a former client’s industry, profession, or trade without being widely recognized by the public.”

The Committee explained that in that context, knowledge of the matter by the general public is irrelevant. The Committee offered the insurance industry as an example and indicated that what truly mattered was whether the information had been broadly disseminated in that industry: “For example, if a former client is in the insurance industry, information about the former client that is widely recognized by others in the insurance industry should be considered generally known within the meaning of Model Rule 1.9(c)(1) even if the public at large is unaware of the information.”

The Committee then summarized its analysis and conclusions as follows: “(I)nformation is generally known within the meaning of Model Rule 1.9(c)(1) if (a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade.”

This opinion offers much-needed clarification for lawyers regarding client confidentiality issues in the digital age. The times are undoubtedly changing as the online world speeds up and amplifies the dissemination of information. Certainly the end result is that the internet may muddy the waters a bit when it comes to lawyers’ ethical obligations. But as this opinion shows, despite the rapid pace of change, lawyers’ ethical obligations nevertheless remain constant, whether applied online or offline.

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.


Must-have Apple Watch and iPhone apps for lawyers

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

*****

Must-have Apple Watch and iPhone apps for lawyers

The iPhone celebrated its 10-year anniversary this year. In 2017, a decade after its release, it’s still the most popular smartphone with lawyers according to the recently released American Bar Association’s 2017 Legal Technology Survey Report. Of the lawyers surveyed, 96% used smartphones for law-related purposes while away from their office. And, the iPhone was the most popular smartphone by far, with 75% of lawyers surveyed using an iPhone rather an Android.

The Apple Watch, on the other hand, just celebrated its 2-year anniversary. Although I’ve not yet encountered any data on the percentage of lawyers using smartwatches, over time I’ve noticed more and more Watches appearing “in the wild,” including on the wrists of lawyers. So I wasn’t surprised to learn last month that since its launch, more than 30 million Apple Watches have been shipped.

Of course, there are hundreds of thousands of iPhone and Apple Watch apps to choose from, and I’m sure you’ve already got more than a few favorites. But you could always use more, so here are my choices for apps that are must-haves for lawyers.

First, if your practice areas require you to interact with people who speak a different language, a translation app is a must. For your iPhone, consider Speak and Translate, a free app that automatically translates what you say into the spoken word one of of 54 different languages. It also supports text-to-text translations between 117 languages. For your Apple Watch, there’s iTranslate Converse. This app ($4.99/month) allows you to translate conversations in over 100 languages.To use it, you simply speak into your Watch, which then automatically translates your spoken word into the appropriate language.

Another Apple Watch app to consider is Just Press Record ($4.99). This is a very useful app for recording and transcribing conversations and meetings. It allows you to record for an unlimited amount of time and then transfer the recording to your iPhone for transcription.

Another iPhone app that will appeal to lawyers is the free Time & Date Calculator app. Because we spend so much time calculating dates - such as due dates for a motion determining how long ago an incident occurred - a time and date calculator app is a must-have. This app provides a lot of flexibility and built-in tools to help you calculate dates across time zones and even down to the second.

My favorite iPhone scanning app is Scanner Pro. It costs $3.99, and lets you scan a document using your iPhone and then upload it as a PDF. The app also formats the uploaded document with OCR (text recognition) so that you can easily search the text of the document.

And last but not least is the Overcast podcast app for both the iPhone and Apple Watch. Ever since the Serial podcast took the world by storm, lawyers have become huge fans of podcasts. If you’ve jumped on the podcast bandwagon, then you need an intuitive, easy-to-use podcast app like Overcast. It’s a free app that is ad-supported, but you can have an ad-free experience, for $9.99/year. With the iPhone app you can play podcasts right on your phone and the Watch app allows you to choose and control the podcasts playing on your iPhone from across the room.

So there you have it: a few of my favorite iPhone and Apple Watch apps for lawyers. There are plenty more, of course, so don’t let me selections limit you. And if you don’t already own an Apple Watch, what are you waiting for? Add it to your wish list for the holidays. I assure you, you won’t regret it!

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.

 


Virginia Bar Nixes Online Attorney-Client Matching Service

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

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In recent months, I’ve written about a handful of ethics opinions from different jurisdictions whereby the ethics committees rejected the use of various online lawyer lawyer directories and lawyer-client matching services such as Avvo, Legal Zoom, and Rocket Lawyer. Virginia now joins their ranks with the issuance of Legal Ethics Opinion 1885.

At issue in this opinion was whether a lawyer may ethically participate in an online attorney-client matching service (ACMS) which operates as follows:

The prospective client selects the advertised legal service and chooses a lawyer identified on ACMS’s website as willing to provide the selected service. The prospective client pays the full amount of the advertised legal fee to the ACMS. Thereafter, the ACMS notifies the selected lawyer of this action, and the lawyer must call the prospective client within a specified period. After speaking to the prospective client, and performing a conflicts check, the lawyer either accepts or declines the proposed representation.

Under this arrangement, if the lawyer accepts the representation, the lawyer agrees to undertake a limited scope representation of the client. Upon completion of the representation, the ACMS deposits the legal fee into the lawyer’s operating account and then electronically withdraws a “marketing fee” from the same account as payment to the ACMS for participation in the matching service.

Although the Legal Ethics Committee did not specify the name of the matching service in the opinion, the setup described is the same as Avvo’s.

Of note, the Committee expressed concern regarding the fact that the ACMS, rather than the lawyer, controlled the attorney fees while the case was pending. According to the Committee, this arrangement circumvented the ethical requirements that lawyers are duty-bound to adhere to:

A Virginia lawyer who participates in the service rendered by the ACMS cannot comply with this Rule of Professional Conduct because she is not, and has never been, the custodian of the advanced fee. She has ceded control of that fee to the ACMS, which decides how to dispose of the client’s fees, both earned and unearned. A lawyer must not accept a legal matter under an arrangement which requires that she delegate the function of holding and disposing of the client’s advanced legal fees to a lay entity. In accepting such representation, the lawyer also violates Rule 1.16(a)(1), which prohibits any representation which would result in the lawyer’s violation of the Rules of Professional Conduct.

The Committee also determined that the business model of the ACMS involved improper legal fee sharing with a non-attorney and was thus unethical, despite the fact that the fee in question was referred to as a “marketing fee”: “Calling the online service’s entitlement a “marketing fee” does not alter the fact that a lawyer is sharing her legal fee with a lay business.”

For those reasons, and others, the Committee concluded that it was impermissible for Virginia attorneys to provide legal services through the ACMS in question:

(A) lawyer who participates in an ACMS using the model identified herein violates Virginia Rules of Professional Conduct because she:

cedes control of her client’s or prospective client’s advanced legal fees to a lay entity;
undertakes representation which will result in a violation of a Rule of Professional Conduct;
relinquishes control of her obligation to refund any unearned fees to a client at the termination of representation;
shares legal fees with a nonlawyer; and
pays another for recommending the lawyer’s services.

This opinion, and the others recently issued, do not preclude lawyers from participating in online lawyer-client matching services. Instead, it’s important to understand both the setup of the particular online service and the ethical rules of your jurisdiction prior to signing up for the service. Read any applicable ethics opinions that have been handed down in your jurisdiction and then carefully choose services with business plans that comport with your ethical obligations.

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.