California Bar on the ethics of blogging

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

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California Bar on the ethics of blogging

Blogs have been around for over a decade now and lawyers have been blogging from the very start. That’s why it’s so surprising that many state ethics committees have yet to weigh in on the ethical issues lawyers encounter when blogging.

For example, the issue of whether a lawyer blog constitutes attorney advertising had not been addressed in California until Formal Opinion 2016-196 was recently issued in final. At issue in that opinion was whether and under what circumstances blogging by an attorney constituted a “communication,” and was thus subject to attorney advertising regulations.

In this opinion, the Standing Committee on Professional Responsibility and Conduct of the State Bar of California opined that most law blogs did not constitute content subject to attorney advertising rules, with a few caveats.

First, the Committee concluded that, regardless of the nature of the content of the blog posts, all lawyer blogs that were integrated within a law firm’s professional website necessarily constituted lawyer advertising and were thus subject to attorney advertising regulations just as the firm’s website would be. It reasoned that “(a)s part of a larger communication (the professional website) which concerns the firm’s availability for professional employment, the blog will be subject to the same requirements and restrictions as the website.”

I find this conclusion to be somewhat surprising and to the best of my recollection, it’s the first time I’ve seen this distinction made. In my mind, it’s a bit of a jump to conclude that blog posts that are otherwise educational and not intended to overtly advertise a lawyer’s services are necessarily “tainted “ and thus constitute advertising simply by virtue of the blog being embedded on the law firm’s website. The Committee's rationale - that because the website itself related to the firm’s availability for professional employment, this intent was imputed to the blog regardless of the content of the blog - does not square with its conclusion, discussed below, regarding stand-alone blogs.

Specifically, the Committee concluded that a stand-alone lawyer blog focused “on law‐related issues or developments within his or her practice area (were) not a ‘communication’ subject to the rules regulating attorney advertising unless it invite(d) the reader to contact the
attorney regarding the reader’s personal legal case, or otherwise expresses the attorney’s availability for professional employment.” The Committee clarified that identifying the attorney as the author of a post on the blog, where the reference to the attorney’s name included a hyperlink to the attorney’s law firm website, did not evince an intent to show that the lawyer was available for professional employment. As such, attorney advertising regulations were not applicable.

I disagree with the premise that a blog devoted to educational topics that is embedded on a law firm’s website is somehow more promotional than a blog devoted to educational topics that includes a link to the lawyer’s website in the content of each blog post. In both cases, the lawyer is providing non-promotional content in the substance of the blog post, while providing the reader with context regarding the lawyer’s necessary expertise to write about the issues discussed on the blog.

Also perplexing is a relevant topic noticeably missing from this discussion: any reference to the “About” page that is often embedded in most stand-alone blogs. This page often includes detailed information about the author(s) who write for the blog, including descriptions of their professional background along with links to their professional websites. In other words, it offers information quite similar to that found on a law firm website, and would thus warrant inclusion in the analysis of the issues addressed in this opinion.

So, as is often the case when I read ethics opinions about lawyers using social media and blogging, I find myself in disagreement with the assumptions underlying the analysis relating to the technology at issue. There seems to be a fundamental lack of understanding regarding the use of the medium at issue here, blogging. I find that perplexing in 2017. When it comes to newer technologies, such as Artificial Intelligence, the unfamiliarity with the concepts is forgivable, but blogging has been around for more than a decade. It’s downright puzzling that these concepts continue to seem so foreign to the Committees authoring opinions such as this one. I keep convincing myself that this will change over time, but, quite frankly, I’m beginning to lose hope.

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


D.C. Bar on mining social media for evidence and more

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

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D.C. Bar on mining social media for evidence and more

Last month I wrote about D.C. Bar Opinion 370, which addresses the ethics of lawyers using social media for marketing purposes, among other things. The D.C. Bar also simultaneously issued a separate opinion on a related matter: lawyers using social media in providing legal services.

In Opinion 371, the DC Bar Ethics Committee addressed a number of interesting issues including two of my favorite topics, the ethics of mining social media for evidence and using social media to research jurors.

At the outset, the Committee wisely acknowledged that lawyers who ignore technology do so at their peril: “(C)ompetent representation always requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to carry out the representation. Because of society's embrace of technology, a lawyer's ignorance or disregard of it, including social media, presents a risk of ethical misconduct.”

The Committee specifically addressed the obligation of lawyers to acquire knowledge about the workings of social media, opining that lawyers who do not understand social media are failing to provide adequate legal representation: “Because the practice of law involves use or potential use of social media in many ways, competent representation under Rule 1.1[3] requires a lawyer to understand how social media work and how they can be used to represent a client zealously and diligently[4] under Rule 1.3.[5] Recognizing the pervasive use of social media in modern society, lawyers must at least consider whether and how social media may benefit or harm client matters in a variety of circumstances.”

Next the Committee turned to using social media to research information about parties to a litigation matter, where said data is not behind a privacy wall and is thus publicly available. The Committee agreed with the other ethics committees that have addressed this topic, concluding that it is ethically permissible to do so: “Lawyers can and do look at the public social media postings of their opponents, witnesses, and other relevant parties, and…may even have an ethical obligation to do so. Postings with privacy settings on client social media are subject to formal discovery and subpoenas.”

For parties to litigation who are represented by counsel, attempting to “friend” a party in order to access information behind a privacy wall constitutes impermissible communication. The Committee explained, “A lawyer's review of a represented person's public social media postings does not violate the Rule because no communication occurs. On the other hand, requesting access to information protected by privacy settings, such as making a ‘friend’ request to a represented person, does constitute a communication that is covered by the Rule.”

For unrepresented parties, information behind a privacy wall can be accessed. But in order to do so ethically, lawyers and their agents must provide identifying information when attempting to connect with that person on social media in order to view postings behind the privacy wall: “(I)n social media communication with unrepresented persons, lawyers should identify themselves, state that they are lawyers, and identify whom they represent and the matter.”

Next the Committee turned to researching jurors on social media and reached the same conclusion as other Committees that have addressed this topic, namely that lawyers may only review information about jurors that is publicly available and is not behind a privacy wall.

Of particular interest is the fact that the Committee sided with the rationale handed down by the American Bar Association’s Standing Committee on Ethics and Responsibility (in Opinion 466) and concluded that passive communications, like those that occur when LinkedIn notifies users that another person has viewed their profile, do not constitute impermissible communication with jurors: ”(S)ome social media networks automatically provide information to registered users or members about persons who access their information. In the Committee's view, such notification does not constitute a communication between the lawyer and the juror or prospective juror.” (Emphasis added). Notably the New York City Bar Committee on Professional Ethics opined otherwise in Formal Opinion 2012-2, as did the New York County Lawyers Association Ethics Committee in Formal Opinion 743.

The D.C. opinion also covered the obligations of lawyers when it comes to their client’s use of social media, along with the use of social media by judges, arbitrators, and more. So even if you don’t practice in D.C., it would be well worth your while to review the Committees’ analysis of these timely, and interesting, issues.

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


Search Warrant Issued For Amazon Echo Data

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

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Search Warrant Issued For Amazon Echo Data


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

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

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

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

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

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

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

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

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


Email Tracking: Is It Ethical For Lawyers?

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

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Email Tracking: Is It Ethical For Lawyers?

Lawyers have been using email for more than two decades now. Years ago, in the early 1990s, most jurisdictions did not permit lawyers to use email to communicate with clients. But in the mid-1990s, the tide shifted as email began to emerge as an essential communications tool for businesses. It was the ABA that first issued an ethics opinion green lighting the use of email for client communication, and other jurisdictions soon followed.

Since lawyers have been using email for so many years now, you’d think that all potential ethical issues relating to email would be resolved at this point, but like most technology, email is always evolving. While some lawyers continue to use email technology that is premise-based, others rely on web-based email. And for those lawyers, new tools are constantly being released that are designed to augment the functionality of web-based email. These tools can help lawyers to accomplish any number of goals, including encrypting their emails, streamlining their inbox, creating “to-dos” its using emails, “snoozing” emails for review at a later date, or tracking outgoing emails.

It’s the last function - tracking emails -that was at issue in an ethics opinion issued by the Alaska Bar Association Ethics Committee in October. At issue in Opinion 2016-1 was whether it “was ethically permissible for a lawyer to use a ‘web bug’ or other tracking device to track the location and use of emails and documents sent to opposing counsel.”

In reaching its determination, the Committee noted that the features of email-tracking tools can vary widely, with the more robust software including the ability to track: 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.

The Committee explained that the most troubling aspect of these programs is that they permit attorneys intrude upon opposing counsel’s work product by tracking how the attorney uses a particular document: “The tracking device could enable the sending lawyer to learn 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.”

Accordingly, as the Committee explained, even if use of the tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical. Thus, the Committee concluded that: “(T)racking electronic communications with opposing counsel through “web bugs” impermissibly and unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets….(reflecting) at a minimum, the lack of straightforwardness that is a hallmark of dishonest conduct…Sending ‘bugged’ emails or documents or other communications with embedded tracking devices constitutes an impermissible infringement on the lawyer’s ability to preserve a client’s confidences or secrets as required by Rule 1.6[11] and violates Rule 8.4(a) and (c).”

The only other state bar that I’m aware of that has addressed this issue is the New York State Bar, 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.”

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


2016 Holiday Gift Guide For The Tech-Savvy Lawyer

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

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2016 Holiday Gift Guide For The Tech-Savvy Lawyer

It’s hard to believe, but 2016 is about to draw to a close. And you know what that means: it’s that time of year again. Time to start making a list and checking twice so you can decide what to buy the tech-savvy lawyer in your life. But never fear, there are lots of great gifts ideas for lawyers who love technology. Here are a few suggestions to get you on the right track.*

First, consider the 4th generation Apple TV ($149-199) (online: http://www.apple.com/tv/). Tech-savvy lawyers will appreciate Apple TV’s smart home/office capabilities, including using Siri’s voice and Apple’s HomeKit controls to conveniently control their offices and home environments. And for those lawyers who use Apple TV with their iPad for trial presentation, the more user-friendly interface and updated remote are a big selling point. Simplicity is important when using technology in the courtroom, making these new features a big plus for litigators.

For the lawyer with lots of devices to charge, an updated wall outlet might be in order. The NewerTech Power2U USB/AC Outlet is a perfect example of this type of modern outlet ($45.98/ 2-pack) (online: http://www.newertech.com/products/power2u_universal.php). This handy wall outlet is designed for today’s multi-device household, making it possible to charge four devices at one time, using both traditional outlets and USB ports. It includes two NEC-compliant AC receptacles and two USB ports, which are built right into the outlet.

If the lawyer in your life spends a lot of time behind a desk, an adjustable standing desk might be in order. One option to consider is an Active-Pro Sit-To-Stand work station (online: http://www.ultoffice.com/activ-pro-sit-to-stand-wrkstn-platinum-base-top). This desk has a small, unobtrusive LED touch screen on the right-hand side that allows you to adjust the height of the desk. You can preset up to four different heights and are able to manually adjust the height as well. The motor is very quiet and the desktop quickly glides into place. It’s a great desk, but it’s pricy, costing around $1,000 depending on the model you choose. But for lawyers who are chained to their desks, it can be a lifesaver and is money well spent.

Next up, if your gift recipient recently upgraded to a new iPhone, then a protective case is just what the doctor ordered. One case to consider is the NewerTech KX Case for iPhone 7/Plus (online: https://eshop.macsales.com/shop/mobile-and-tablet/accessories/cases/nuguard-kx/apple/iphone-7-and-iphone-7-plus). This case retails at $34.99 for the iPhone 7 Plus and $29.99 for the iPhone 7. It’s available in black, crimson and midnight (which is a shade of blue). If you’re looking for a functional case designed to provide advanced protection from bumps and drops, then this may very well be the case you’re looking for. It’s affordable, attractive and built to protect.

And last, but not least, if frayed charging cords are a frequent problem for the lawyer on your gift list, then the Tudia Klip cable protector (online: http://www.tudiaproducts.com/klip/) is a great, affordable device to consider. This protector can be used with any iOS charging cord and, at just $7 per device, it does a great job protecting the connecting points of charging cords and preventing future damage.

So there you have it: a few gift suggestions for the tech-savvy lawyer in your life. Good luck with the rest of your shopping list and enjoy the holidays!

*For the following products, I received complimentary models for review purposes: the NewerTech outlet, the NewerTech iPhone case, and the Tudia Klip.

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


D.C. Bar Issues Lengthy, Restrictive Opinion On Social Media For Lawyers

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

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D.C. Bar Issues Lengthy, Restrictive Opinion On Social Media For Lawyers

In November, the District of Columbia Bar issued an opinion that was over 7,000 words long. In Opinion 370, the Committee provided a rather in depth analysis on the ethics of lawyers using social media for both marketing and personal use.

This lengthy opinion is unnecessarily restrictive and and is a perfect example of a knee jerk reaction to technology that only serves to stifle lawyers’ use of online tools. Rather than issue a measured response to social media based on analogies to similar offline conduct, the Committee instead treated online interaction and communication by attorneys as suspect and something to be discouraged.

This was evident from the very outset, when the Committee defined social media in an unnecessarily broad manner. The definition included any type of conduct through “any electronic platform”, even private emails, VOIP conversations, and instant messages. And “content” posted online is very broadly defined as “any communications, whether for personal or business purposes, disseminated through websites, social media sites, blogs, chat rooms, listservs, instant messaging, or other internet presences, and any attachments or links related thereto.” (Emphasis added.)

Next, the Committee made the very important, and correct, observation that lawyers have an obligation to understand the social media platforms that they use. The Committee explained that lawyers must “understand the functionality of the social networking site, including its privacy policies…and (l)awyers must understand the manner in which postings on social media sites are made and whether such postings are public or private.”

From there, the opinion went south, with the Committee’s analysis and conclusions resulting in convoluted and complex guidelines seemingly designed with one purpose: to discourage lawyers from using social media altogether. Among the more unusual requirements and obligations the Committee imposed on attorneys were the following:

“Disclaimers are advisable if…the lawyer may be engaged in sending or receiving messages from "friends," whether those friends are other attorneys, family or unknown visitors to the lawyer's social media page, when those messages relate, or may relate, to legal issues.” (Emphasis added).

“Caution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.” (Emphasis added.)

“(G)reat caution should be exercised whenever a social networking site requests permission to access e-mail contacts or to send e-mail to the people in the lawyer's address book or contact list…(T)hese connection services could potentially identify clients or divulge other information that a lawyer might not want an adversary or a member of the judiciary to see or information that the lawyer is obligated to protect from disclosure.”
“We recognize that an attorney's ethical obligations to review and regulate content on social media extends only to those social media sites or webpages for which the attorney maintains control of the content, such as the ability to delete posted content, block users from posting, or block users from viewing. However, notwithstanding the scope of the attorney's affirmative obligations, it is highly advisable for attorneys to be aware of content regarding them on the internet.

”(F)or websites or social media sites where the attorney does not have editorial control over content or the postings of others, we do not believe that the Rules impose an affirmative duty on a lawyer to monitor the content of the sites; however, under certain circumstances, it may be appropriate for the attorney to request that the poster remove the content, to request that the social networking site remove the content, or for the attorney to post a curative response addressing the inaccurate content.”

So, to sum up: 1) disclaimers are required if postings may relate to legal issues, 2) lawyers should avoid any and all postings that are ambiguously described as taking “positions on issues,” 3) lawyers should refrain from allowing a social media site to access their contacts since doing so would somehow (the mechanism is not clear) disclose confidential information, and 4) lawyers are strongly encouraged to be aware of everything that is posted about them or their firm anywhere on the Internet and take steps to remove content that is inaccurate. And, of course, all of these rules apply regardless of whether the content being posted by an attorney is for business or personal reasons.

In other words, “communicate” online (and be aware of everything that everyone on the world might be saying about you) at your own risk - and at the risk of losing your law license - if you’re an attorney in D.C.

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


Speaking up, and being censored

Last week, a column that I submitted was rejected by a publication for which I've written for nearly a decade. This was the first time one of my submissions was rejected even though my columns have occasionally delved into political territory in the past.

So, I'm now posting my rejected column, here, in its entirety.

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If Not Now, When?


As I sat down to write my column today, I found myself incapable of writing about anything other than the state of our world post-election. The elevation of Donald Trump to the highest office in the land marks a radical shift in our politics and in our lives. Hate has been normalized and the most vulnerable and helpless members of our society are at risk.

As lawyers, we are uniquely qualified to come to their aid and make a difference in the coming months and years. Already the practicality of establishing registries for Muslim immigrants - something that seemed a farfetched idea just weeks ago - is being actively discussed by members of the President-elect’s incoming cabinet and the inexcusable and shameful Japanese internments from World War II have been offered as precedent for said registries. Mass deportations are also on the table, with no care given to how those deported will be received in the countries from which they have fled. Hate crimes are being committed in the name of our President-elect across the country at an alarming rate.

Freedom is at risk. Liberty is at risk. Lives are at risk. Not just the lives and liberties of those being targeted by the incoming administration, but the lives and liberties of all Americans. We are at a pivotal moment in our history and we have a choice: we can either sit idly by and allow the unthinkable to occur or we can take action. As attorneys, we have an obligation to use our skills and our voices to fight for what’s right and just. We must make a difference.

But where do we start? We organize, donate money, provide pro bono representation, and offer vocal support to those who are vulnerable. We can make a difference on many levels, both professionally and personally.

Shortly after the election, I stepped back and gave careful thought to the steps I could immediately take to foster change. And then, I acted. If you, too, are interested in taking action, here are some ideas.

First, consider setting up recurring donations to organizations that fight for social justice, including: NAACP Legal Defense Fund, ACLU, Planned Parenthood, Center for Reproductive Rights, Anti-Defamation League, Southern Poverty Law Center, Trevor Project for LGBT Youth, Mexican American Legal Defense and Education Fund, Natural Resources Defense Council, Council on American-Islamic Relations, and National Immigration Law Center. Also consider donating to local organizations with similar goals.

Because free, unencumbered press is fundamental to a democratic society, one way to forward these rights is to support news organizations that provide quality, in-depth reporting, such as the New York Times and the Washington Post. Another option is to donate to ProPublica, an independent, non-profit newsroom that produces investigative journalism in the public interest.

The right to assemble and peacefully protest is likewise another important First Amendment right, so consider attending the upcoming protest in Washington, D.C., the Women's March, on January 21st or other more local protests.

Finally, I invite you to join a local group that I've organized of nearly 40 like-minded locals, including many lawyers, who would like to start taking steps to help those who will be most affected by the predicted policies of this new administration. Our first meeting was held over the weekend and we are starting our work to have a positive impact and effect change in our local community. Message me on social media (@nikiblack on Twitter or via LinkedIn) and I’ll send you more information.

So please, join us. This is a pivotal time in our history, and we cannot be complacent. If you, like me, are concerned about the future of our country and the impact of the policies that will likely be implemented by this incoming administration, now is the time to step up to the plate and take action. If not now, when?

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


How Lawyers Are Using Technology In 2016

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

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How Lawyers Are Using Technology In 2016

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

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

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

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

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

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

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

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

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


Snapchat for Litigators

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

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Snapchat for Litigators

Snapchat: it’s not just for kids anymore. Snapchat has grown quickly since its launch in 2012 and now has more active users than Twitter, coming in at more than 150 million each day. That’s why lawyers, especially litigators, need to familiarize themselves with this social media platform since it could potentially provide valuable evidence in your next case.

If you’re not already familiar with Snapchat,t he app allows people to send photos and videos to others, but the pictures self destruct within seconds of being viewed. Users can chat in the app and add filters or doodles to their photos to make them more entertaining.

So why should Snapchat matter to lawyers? Because as people interact on Snapchat, they leave a trail of digital evidence that could be relevant to your client’s litigation matters. And this isn’t simply supposition. Snapchat has already reared its ugly head in court, in both civil and criminal matters, on many occasions.

For example, in California, a minor was placed on probation following a hearing on a juvenile delinquency petition wherein it was alleged that he violated Penal Code s. 647(j)(1) by engaging in the unauthorized invasion of privacy by disseminating Snapchat videos of another youth who was allegedly masturbating in a bathroom stall. (See, In re M.H., 205 Cal. Rptr. 3d 1 (Ct. App. 2016).

In another case, two Salem, Massachusetts teenagers were convicted following a jury trial of sexually assaulting a 16-year old girl who was intoxicated and then sending Snapchat videos of the assault to their friends. Although the videos had been automatically deleted from the recipients’ phones seconds after they’d been viewed, screenshots were taken by one of the witnesses before the deletion occurred. Those screenshots were later used as evidence at trial.

Snapchat evidence has also proven useful in civil litigation matters. One particular Snapchat feature is cropping up often in personal injury litigation: the “speed filter” feature. This feature, if activated, tracks how fast someone is traveling when a photo is taken and sent to others via Snapchat.

For example, one case in which this feature is taking center stage is in a lawsuit filed in April 2016 in Georgia against Snapchat by a man who was involved in a motor vehicle accident in which he was severely injured. He alleged that the other driver was traveling more than 100 mph and was using Snapchat, and its speed filter feature, immediately before the accident occurred. According to his attorneys, the lawsuit was filed against Snapchat since they believed that the other driver had an insurance policy with very low limits. However, had the lawsuit also been filed against the other driver, the alleged Snapchat speed filter evidence would no doubt have been useful to establish the speed at which she was driving at the time of the accident.

In other words, whether it’s a civil or criminal matter, this increasingly popular social media app has the potential to affect your litigation cases. That’s why it’s important to both understand how this social media app works and how to obtain data relevant to your case from Snapchat. The good news is that Snapchat has published a Law Enforcement Guide (online: https://www.snapchat.com/static_files/lawenforcement.pdf) that covers the ins and outs of requesting data from Snapchat, whether made pursuant to a subpoena, court order, or search warrant. The types of data that can be obtained via these means includes text-based chat conversations, since these are not automatically deleted after being viewed, and photos of videos sent via Snapchat that have not yet been opened and viewed.

So, the bottom line is that if you’re a litigator, Snapchat should definitely be on your radar. Learn about it and don’t overlook it as a potential source of evidence. In some cases, it could very well be a goldmine, providing a crucial piece of evidence that just might make your client’s case.

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


9 iPhone Apps For Lawyers

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

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9 iPhone Apps for Lawyers

According to the results of the American Bar Association’s latest Legal Technology Survey Report, six out of 10 lawyers use an iPhone. Since the majority of lawyers use iPhones and it’s been a while since I wrote about iPhone apps for lawyers, I figured it was high time I shared some of my latest discoveries. So, without further ado, here are 9 iPhone apps developed for lawyers that you may find to be useful in your law practice.


Lawstack is a free app that provides access to, among others, the U.S. Constitution, the Federal Rules of Civil and Criminal Procedure, the Federal Rules of Evidence. Certain state codes, including New York, are also available for purchase.


With SignNow, a free app, documents can be signed anywhere by simply uploading a PDF or Word doc via email, Dropbox, or by using your iPhone’s camera. This is a really useful app for busy lawyers who often need to obtain signatures from clients and others while on the go.
Livescribe Smartpen is a digital pen that captures your handwriting and sends it directly to your phone. You can then save the searchable document as a PDF and export it to other programs. The various pens start at $129.95, so they’re not cheap, but may just be worth the cost, depending on your needs.


Mobile Transcript is a free app that enables paperless depositions by storing digital transcripts received from a court reporter in the cloud, which can be accessed from any compatible device. You can then annotate, mark up, and share the transcripts with others. There is also a paid version of the app available for $29 per month, which allows you to upload your own transcripts into the app in either Amicus or Summation format.


Dictate+Connect is an app that turns your iPhone into a dictaphone. Once you’ve recorded dictation, you can rewind and overwrite your dictation in the app and then send the sound file to your assistant as a verbal memo. You can also use the app to record meetings. There is a free trial version of the app available but in order to record more than 30-second sound clips you’ll need to purchase the full-fledged version of the app for $16.99.


The Courtroom Objections iPhone app is your go-to objections guide. This app assists you with making and responding to objections in court by providing a useful list of common objections and responses. It’s not free, but at $2.99, it may just be worth the small price you’ll have to pay.


Courtroom Evidence is a mobile reference guide for courtroom evidentiary foundations. It assists you in laying the proper foundation for entering common types of information into evidence. The app is available in the App Store for $1.99.


DocketLaw is a free app that calculates event dates and deadlines based on the Federal Rules of Civil Procedure. Also available for an additional monthly fee are subscriptions to rules-based calendars for specific state and federal courts. For example, you can access all New York court data for $49.95 per month.


Using Timeline 3D you can create a list of events and then add any relevant media. Once you have done so, you can present your visual timeline using a full screen and with a 3D perspective. You also have the option to export your timeline into PowerPoint and Keynote format. This app costs $9.99.
Your iPhone can be a great tool for your law practice; you just have to know how to use it! So what are you waiting for? Download a few of these apps and start practicing law on the go.

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