Web/Tech

NYC Bar on lawyers’ ethical obligations at the border

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

*****

NYC Bar on lawyers’ ethical obligations at the border

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

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

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

The primary conclusions reached by the Professional Ethics Committee were:

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

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

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

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

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

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

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


Ohio Bar green lights cloud computing and virtual law firms

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

*****

Ohio Bar green lights cloud computing and virtual law firms

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

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

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

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

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

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

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

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

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

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

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


U.S. Supreme Court on First Amendment rights and social media

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

*****

Last month the United States Supreme Court weighed in on the intersection of the First Amendment with social media in Packinham v. North Carolina, No. 15–1194

The Court struck down a North Carolina criminal statute on First Amendment grounds. The law provided that registered sex offenders who used social media sites that could be accessed by children could be convicted of a felony. Although the majority’s holding itself was notable, even more interesting and groundbreaking was the language used by the court in reaching its decision.

At the outset, the majority confirmed the far-reaching impact of the internet and social media on our society, and importantly acknowledged that when issuing rulings related to technology, courts must understand that it is ever advancing and always changing: “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.”

Next, the majority turned to social media and noted the potential it has to amplify each and every person’s message, allowing everyone an opportunity to be heard.”These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”

The majority then engaged in what I consider to be the hallmark of every well-decided opinion involving issues related to internet activities: analogized the online conduct to similar offline conduct:. The majority wisely explained: “The better analogy to this case is Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987), where the Court struck down an ordinance prohibiting any ‘First Amendment activities’ at Los Angeles International Airport because the ordinance covered all manner of protected, nondisruptive behavior including ‘talking and reading, or the wearing of campaign buttons or symbolic clothing,’ id., at 571, 575. If a law prohibiting ‘all protected expression’ at a single airport is not constitutional, id., at 574 (emphasis deleted), it follows with even greater force that the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.”

In comparison, the dissent’s position was a great example of the common knee jerk reaction to new technologies sometimes shown by courts and ethics bars across the country, wherein the dissent exhibited a reluctance to adapt to the changing times: “Cyberspace is different from the physical world, and if it is true, as the Court believes, that ‘we cannot appreciate yet’ the ‘full dimensions and vast potential’ of ‘the Cyber Age,’ ibid., we should proceed circumspectly, taking one step at a time.”

Interestingly, this reticence toward embracing new technologies that was expressed by the dissenting justices, Chief Justice Roberts, Justice Thomas, and Justice Alito, is rarely present when those same justices apply emerging technologies to limit constitutional rights, rather than expand them. For example, no such reluctance has been shown when these same justices diminish the Fourth Amendment rights of American citizens, whether it’s permitting the use of technology to enhance the ability of law enforcement to snoop on U.S. citizens or granting law enforcement unfettered investigational access to data stored online. These countervailing approaches to technology by the more conservative members of the court represent a strange, but not entirely surprising, contradiction of ideology, and it’s a trend that I don’t expect will change anytime soon.

Nicole Black is a Rochester, New York attorney, legal technology 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.

 


Free Legal Research With Google Scholar

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

*****

It is indisputable that the internet and advances in technology have leveled the playing field, making it easier than ever for solo and small firm lawyers to compete with larger firms. Nowhere has this been more apparent than in the field of legal research.

Affordable, or even free, legal research tools can make all the difference for solo and small firm lawyers. The trick is knowing which legal research platforms make the most sense for your law firm. These days, there are more tools available than ever, with Google Scholar leading the pack when it comes to free legal research tools.

It used to be that the only legal research options were either to head over to the closest law library or maintain a costly and space-consuming library on your law firm's premises. Along came electronic research capabilities, but even then, it cost an arm and a leg to subscribe to the two most popular platforms, Westlaw or Lexis. The high subscription costs often made these platforms unpalatable for many solo and small firm attorneys.

But this was back in the good ol’ days when Lexis and Westlaw had cornered the legal research market. How times have changed! The internet age ushered in a new era in legal research, making legal information available to everyone at little to no cost. The Cornell Legal Information Institute was one of the first online platforms to make legal information free and easily accessible to lawyers and legal consumers alike--and it continues to do so to this very day.

But it was the launch of Google Scholar's fully searchable legal case database in November of 2009 that truly revolutionized legal research. Suddenly, lawyers everywhere could search vast caselaw databases for free. Since then, Google Scholar’s research capabilities have improved substantially, making it easier than ever to conduct legal research and check the citations of relevant cases.

So what's covered in Google Scholar's database? A lot. It includes court opinions from all 50 states and all federal courts, and even provides links to relevant law review articles in citation check results. The specific jurisdictions covered are described in Google Scholar’s FAQ as follows: “Google Scholar allows you to search and read published opinions of US state appellate and supreme court cases since 1950, US federal district, appellate, tax and bankruptcy courts since 1923 and US Supreme Court cases since 1791. In addition, it includes citations for cases cited by indexed opinions or journal articles which allows you to find influential cases (usually older or international) which are not yet online or publicly available.”

To use Google Scholar, simply head over to the Google Scholar home page (online: https://scholar.google.com/) and check the "legal documents" category under the search box and select the courts you’d like to search.

From there, searching Google Scholar is as easy as searching Google. Simply enter natural search terms into the search box and in no time flat you’ll have your results. You can then limit the results by court or date. You can further refine your search terms using advanced search functions, and can even enter boolean search terms. Google Scholar also includes the ability to perform fairly sophisticated cite checks of caselaw, which include information on the relevance of citing cases to a specific legal issue.
Every year since its roll out, Google Scholar’s legal research capabilities have improved and new features have been added, with the end result being a robust, easy-to-use legal research tool. It may not have the bells and whistles of some of its more costly competitors, but for lawyers seeking to conduct legal research on a budget, it’s worth looking into.

Interested in learning more about using Google Scholar for legal research? You can find a full tutorial with screenshots here.

Nicole Black is a Rochester, New York attorney, legal technology 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.


New Jersey judge permits service via Facebook

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

*****

New Jersey judge permits service via Facebook

If you’re a litigator, then I can only assume that by now you fully understand how social media platforms impact your practice. At this point in time, one way or another, you’ve undoubtedly encountered social media issues while representing your clients. Whether it’s crimes being committed using social media platforms, mining social media for evidence, researching jurors on social media, or using social media as a method for service of process, social media crops up in a multitude of ways during the litigation process.

This trend began in approximately 2010, when social media use began to appear in criminal cases as the basis for criminal acts. From there it took a few years before lawyers began to affirmatively use social media on their client’s behalf during litigation matters. I’ve been tracking those trends for some time now, including the use of social media platforms for service of process.

For example, in October 2014, I wrote about two judges who had issued orders permitting service upon litigants using Facebook: a U.S. Magistrate judge for the Eastern District of Virginia (Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear) and a New York family court judge (Noel B. v. Anna Maria A., Docket No. F-00787-13/14B). Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case (Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096)).

Last year, I wrote about Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), where United States Magistrate Judge for the Eastern District of New York, Cheryl L. Pollak permitted an alternate method of service via Facebook, but also required the plaintiff to attempt to effect service using other methods as well.

The issue was addressed even more recently in Axberg v. Langston, Docket No. MRS-C-157 (2016). In this post-adoption case, as reported in the New Jersey Law Journal, Judge Stephan C. Hansbury, Morris County P.J. (ret.), considered the issue of whether service of process could be effected via social media - specifically using Facebook.

In this case, the plaintiffs filed an order to show cause and a verified complaint seeking to restrain the defendant, the purported biological father of their adopted son, from contacting them and/or their son on social media. According to the complaint, the defendant had reached out to their son, his sister, and his adoptive father on Facebook and Instagram, claiming to be his biological father.

After unsuccessfully attempting to serve the defendant via more traditional methods, including regular and certified mail, the plaintiffs sought permission to serve the defendant using Facebook. In reaching its decision, the Court applied the 3-prong test established in Baidoo (above) and determined that the Facebook page in question was the defendant’s, that it appeared to be regularly updated, and due to the unique nature of this case, no other supplemental service method was necessary. Accordingly, the Court concluded that service via Facebook, and Facebook alone, was a sufficient method of service.

Following the Court’s decision, service of process using Facebook was thus accomplished and the defendant soon replied, sending a private message to the plaintiffs counsel on Facebook indicating that he’d received it, stating “I’ll see you in court.” He subsequently appeared via telephone on the return date of the matter.

Another court, another day. Service of process using social media platforms is becoming increasingly common, which is not unexpected. After all, the practice of law can only resist societal changes for so long. Social media is a force to be reckoned with and it’s not going away. Rather than turn a blind eye to it, learn about it and use it to the benefit of your clients. After all, knowledge is power and you have an obligation to provide zealous representation to your clients - something that is impossible to do if you’re not adequately armed with the tools needed to do so.

Nicole Black is a Rochester, New York attorney, legal technology 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.

 

 


NYSBA issues updated social media guidelines for lawyers

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

*****

NYSBA issues updated social media guidelines for lawyers

I’ve always believed that social media use by lawyers should be treated no differently than any other type of communication by lawyers. After all, online interactions are simply an extension of offline interactions, and the medium doesn’t change the message. For that reason, it has pained me to see so many ethics committees issuing so many opinions over the years on the many perceived nuances of online communication by lawyers.

Many of these opinions are simply unnecessary and constitute knee jerk reactions to a new way of interacting. And many are based on faulty reasoning grounded in the assumption that online communications are somehow different than those occurring offline and thus warrant the application of new, more stringent standards. Others, however, necessarily address issues that are unique to online communications. One good example is opinions that address the issue of whether the passive notifications received by LinkedIn users (who also happen to be jurors) which indicate that a lawyer has viewed their profile constitute impermissible juror contact.

Regardless of whether I agree with the sheer volume of opinions or their merit, the end result is that lawyers are left to their own devices when it comes to reviewing the many opinions and deciphering which types of on online interactions are ethical. Navigating the maze of ethics opinions can be a difficult and overwhelming task and for that reason, some attorneys simply choose to forego using social media altogether.

That’s where the recently updated “Social Media Ethics Guidelines,” issued by the the Commercial and Federal Litigation Section of the New York State Bar Association, come in.


These guidelines were first released in 2014 with the intent to provide lawyers with guidance in navigating the many ethical issues encountered when using social media in a professional context. The Guidelines were revised in 2015 and, then, just 2 weeks ago, a newly updated version of the Guidelines was released.

Some of the more notable revisions include:

  • Attorney Competence (§ 1.A) reflects that 27 states have adopted some duty of technical competence.
  • Maintaining Client Confidences (§ 5.E) offers information on how an attorney can respond to online reviews as well as services that offer to import contacts.
  • Positional Conflicts (§2.E) is new and discusses DC Bar Ethics Opinion 370 regarding whether social media posts adverse to a client’s interest may present a conflict of interest. The revised appendix describes social media terminology and some of the more popular social media platforms.
  • The newly added social media definitions are particularly useful, and I have to admit that although I’ve always considered myself to be more social media-savvy than most lawyers (having written a book on lawyers using social media), even I learned a few things after reading through the definitions.

So, if you haven’t yet read the updated Guidelines, make sure to set aside some time in order to do so. They provide a very useful, extensive round up of how ethics committees across the country have approached lawyers using social media. The Guidelines are a great resource that will serve as a handy reference guide for your professional online social media activities.

 

Nicole Black is a Rochester, New York attorney, legal technology 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.

 


Judges weigh in on researching jurors online

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

*****

Judges Weigh In On Researching Jurors Online

Now that social media is simply part of our day-to-day lives, it’s no surprise that it’s also appearing in legal cases. Lawyers routinely seek to access social media data during the discovery phase of trial, mine social media for evidence to use during trial, and research jurors prior to voir dire.

In the past I’ve covered the various ethics opinions regarding lawyers mining social media for evidence and researching jurors using social media. New York, D.C., Pennsylvania, Oregon, and quite a few other jurisdictions have addressed these issues. But it’s not just ethics committees that are weighing in on social media use in litigation. Many Judges are throwing their hats in the ring as well and are establishing procedures for their courtrooms that address the use of social media evidence at trial.

Oftentimes judges recognize that online research alone isn’t necessarily problematic. For example, in 2014 it was reported in a Tampa Bay Times article that in a ruling issued by Circuit Judge Anthony Rondolino, he indicated that allowing parties to research jurors online and then share any relevant information obtained with the court could help to avoid mistrials. His rationale was based on the premise that jurors don’t always disclose relevant information during voir dire, although the failure to do so isn’t necessarily intentional and can sometimes arise from a failure to understand the questions being posed to them.

Other judges are more wary of online research when it comes to jurors, such as U.S. District Judge Rodney Gilstrap of the Eastern District of Texas. Earlier this year he issued a standing order that prohibits “all attorneys, parties, and their respective employees and agents, including jury consultants rom contacting jurors through social media.” However, simply researching jurors by viewing public profiles was permitted, even where jurors might receive passive notifications of the viewing of their profile: “(T)hey are not prohibited from conducting or causing another to conduct any
type of online investigation merely because a juror or potential juror may become aware that his or her ESM is being reviewed. For example, lawyers are not prohibited from reviewing the LinkedIn accounts of jurors or potential jurors even if network settings would alert that juror or potential juror to the fact that a lawyer from the case has reviewed his or her LinkedIn account.”

And last, but not least, in 20116, the U.S. District Court for the Northern District of New York, adopted a local rule in early 2016 that allows lawyers and their agents to research jurors using social media so long as the information viewed is publicly accessible. However, the rule provides that passive notifications indicating that a specific person has viewed a juror’s social media profile are not permitted. Importantly, the rule provides that “If an attorney becomes aware of a juror’s posting on the internet about the case in which she or he is serving, the attorney shall report the issue to the court.”

So, the times they are indeed a’changin’, my friends. Social media is here to stay and in many cases, that’s not a bad thing. It can be a valuable tool for litigation purposes, as long as you are aware of the applicable ethical guidelines and rules of court. So use social media to your clients’ advantage, but make sure to use it wisely.

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.


ABA Issues New Opinion On Secure Online Communication With Clients

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

*****

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


When worlds collide – A tweet constitutes an assault

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

*****

When Worlds Collide: A Tweet Constitutes An Assault

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

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

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

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

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

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

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

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

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

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

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


NY Ethics Committee on lawyers accepting credit card payments

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

*****

NY Ethics Committee on lawyers accepting credit card payments

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

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

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

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

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

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

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

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

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