Web/Tech

Attorney-client privilege waived when non-password protected files stored online

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

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Attorney-client privilege waived when non-password protected files stored online

Lawyers have been using cloud computing for nearly a decade now. Nearly 30 different jurisdictions, including New York, have issued ethics opinions permitting lawyers to store confidential client data in the cloud as long as reasonable steps are taken to ensure that the data is secure. But what steps must be taken to ensure that the data is securely stored? And if the data is not adequately protected, then how might that affect a pending case?

Some of these questions were answered in Harleysville Insurance Company v. Holding Funeral Home Inc., a decision handed down by the United States District Court, Western District of Virginia last month (online: http://tinyurl.com/mcl5qxp). Issues considered in the case were whether the attorney-client and work product privilege were waived when defense counsel accessed data (via a link found in discovery documents) stored by the plaintiffs online in an unprotected Box.net account.

At the outset, the Court acknowledged the ever-changing state of technology in the 21st century and the necessary obligations of those who choose to take advantage of it. Interestingly, the language used by the Court echoed the language typically used by ethics committees who have opined in recent years on the obligations of lawyers to stay abreast of changes in technology. “The technology involved in information sharing is rapidly evolving. Whether a company chooses to use a new technology is a decision within that company's control. If it chooses to use a new technology, however, it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information”

In reaching its decision, the Court noted that the fact that the data stored online in this case was not protected by a password was pivotal. “(T)he information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise. In essence, Harleysville has conceded that its actions were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to image (sic) an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web.”

Next, the Court concluded that because the data was not stored in a password protected account, the attorney work product privilege likewise did not apply: “Harleysville's disclosure should not be considered ‘inadvertent' under federal law. Harleysville has not claimed that its agent's posting of its Claims File to the Box Site was not an intentional act. Also, based on my reasoning above, I cannot find that Harleysville, or its counsel, took reasonable steps to prevent its disclosure or to rectify the situation. Therefore, I find that Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine.”

Finally, the court considered whether defense counsel’s conduct in viewing the unprotected Box file was unethical. The Court concluded that the defense counsel’s actions warranted sanctions because “defense counsel should have realized that the Box Site might contain privileged or protected information…and should have contacted Harleysville's counsel and revealed that it had access to this information.”

So the lesson to be learned from this case is that it is critical to ensure that any information you store online is adequately protected. By using platforms designed for lawyers that are encrypted and password protected, you’re able to meet your ethical obligations and avoid waiving any privileges related to that data. The key is to ensure that you understand the technology that you’re using and that you take sufficient steps to vet any third party providers who will be housing your client’s information.

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


Illinois Bar permits lawyers to use cloud computing

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

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Illinois Bar permits lawyers to use cloud computing

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

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

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

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

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

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

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

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


Lawyers and Social Media in 2017

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

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Lawyers and Social Media in 2017


Until recently, lawyers have been reticent to use social media, insisting that it was a passing fad. However, because social media has increasingly cropped up as important evidence in cases, lawyers’ attitudes have begun to change, as they realize that it can be a valuable tool, both in litigation and in marketing.

That’s why in 2017, more lawyers and law firms are using social media than ever before. In fact, according to the American Bar Association’s most recent Legal Technology Survey Report, 74% of law firms now maintain a presence on a social network and 76% of lawyers report that they personally use one or more social media networks for professional purposes.

According to the Report, lawyers use social media for a number of reasons, ranging from career development/networking (73%) and client development (51%), to education/current awareness (35%) and case investigation (21%).

Lawyers under the age of 40 are the most likely to use social media at 88%. Next in line are lawyers between the ages of 40-49 year old at 85%, then 50-59 year old lawyers at 81%, and then lawyers 60 years old or older at 64%.
For some lawyers, social media is an effective marketing tool, with 25% of lawyers reporting that they’ve had a client retain them because of their social media activity, up from 19% in 2013. Solo attorneys were the most likely to report this at 34%, while attorneys from large firms (100 or more lawyers) were the least likely at 16%.

Blogging is also an important tool for lawyers with 26% of lawyers reporting that their law firm maintains a legal blog. For those lawyers who personally maintain a legal blog, 42% have had a client retain their legal services directly or via referral as a result of their blogging.

The most popular social network for lawyers is LinkedIn. Presumably lawyers are more comfortable with LinkedIn compared to other social networks due to its focus on professional issues rather than social. According to the report, a whopping 91% of firms of 100 or more attorneys have a presence in LinkedIn, followed by 85% of solos, 76% of mid-sized firms with 10-49 lawyers, and 63% of smaller firms with 2-9 lawyers.

Nearly 80% of all individual lawyers have a profile on Linkedin as well, with solos and lawyers from mid-sized firms leading the way, with 99% of lawyers from firms with 10-49 lawyers using LinkedIn and 91% of solos. In third place were lawyers from firms of 2-9 lawyers at 85%.
The most active lawyers on Facebook are solos at 48%, followed by 41% of lawyers from small firms (2-9 attorneys). Mid-sized firms with 10-49 lawyers were next at 22%, with lawyers at firms with 100 or more lawyers coming in last at 16%.

Facebook is also a popular social network for lawyers, with many lawyers reporting that they use it for personal reasons only, including 89% of solos, 89% of lawyers from small firms, 82% of attorneys from mid-sized firms, and 80% from large firms of 100 or more. The most active lawyers on Facebook for professional purposes are solos at 48%, followed by 41% of lawyers from small firms (2-9 attorneys). Mid-sized firms with 10-49 lawyers were next at 22%, with lawyers at firms with 100 or more lawyers came in last at 16%.

The least popular network amongst lawyers isTwitter, with only 21% of lawyers reporting that their firms maintain a presence on Twitter. And, only 25% of respondents report that they personally maintain a presence on Twitter. When it comes to lawyers maintaining a personal presence on Twitter, lawyers from mid-sized firms lead the way with 26% maintaining a Twitter account, followed by 25% of solos, 25% of large firm lawyers, and 24% of small firm lawyers.

So that’s how your colleagues are using social media in 2017. How does your social media use compare?

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


Washington Bar Association allows virtual law offices

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

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Washington Bar Association Allows Virtual Law Offices

The Washington State Bar Association wasn’t the first bar to consider the ethics of lawyers practicing law from virtual law offices and it won’t be the last. It did, however, write one of the more sensible opinions on this phenomenon, Advisory Opinion 201601.

The reasonable tone was set from the very outset, when the Committee on Professional Ethics explained that the phenomenon of lawyers practicing law from outside of their offices was not a new one and was simply a sign of changing times: “Increasing costs of doing business, including the costs associated with physical office space, have motivated lawyers to rethink how they deliver legal services. Many lawyers are choosing to do some or all of their work remotely, from home or other remote locations. Advances in the reliability and accessibility of on-line resources, cloud computing, and email services have allowed the development of the virtual law office, in which the lawyer does not maintain a physical office at all. Although this modern business model may appear radically different from the traditional brick and mortar law office model, the underlying principles of an ethical law practice remain the same.”

Next, the Committee turned to the requirement in some jurisdictions that a law firm must have a physical office address, noting that Washington has no such rule. And, unlike some other states, there is no need for Washington lawyers to include a physical address on lawyer advertising, “(a)s long as it is not deceptive or misleading…(a) lawyer may use a post office box, private mail box, or a business service center as an office address in advertisements.” Similarly, lawyers must also refrain form misleading colleagues and others - through communications or otherwise - into believing that the lawyer is part of a brick and mortar firm.

The Committee then moved on to addressing the ethics of virtual lawyers storing all firm data online, such as in a legal practice management system, and concluded that lawyers may ethically store confidential client data online “as long as the lawyer takes reasonable care to ensure that the information will remain confidential and the information is secure from risk of loss.”

Factors that the Committee suggested lawyers take into consideration when using cloud computing software in their virtual law firm included:

Lawyers have a duty of general technology competence
Lawyers must thoroughly vet cloud computing vendors to ensure data is stored securely
Lawyers must ensure that there are sufficient data backup procedures in place
The agreement with the vendor should ensure that lawyers area able to retrieve law firm data in a readable format and that it includes breach notification clauses
Because technology can change quickly, lawyers have a continuing duty to monitor and review the adequacy of the vendor’s security procedures.

Importantly, the Committee acknowledged that in 2017, due to technology advancements, including secure online client portals, email is not necessarily the best way for lawyers to communicate with clients, regardless of whether the law firm has a virtual office or a brick and mortar office. Like the American Bar Association (in Formal Opinion 11-459) and the Texas Bar (in Ethics Opinion 648), the Committee warned against using email in some cases: “Lawyers in virtual practices may be more likely to communicate with clients by email. As discussed in WSBA Advisory Opinion 2175 (2008), lawyers may communicate with clients by email. However, if the lawyer believes there is a significant risk that a third party will access the communications, such as when the client is using an employer-provided email account, the lawyer has an obligation to advise the clients of the risks of such communication.”

In other words, the Committee issued a well reasoned opinion that acknowledged the rapid pace of technological change. As such, its determinations include elastic standards that will no doubt withstand the test of time. Well done Washington State Bar Association! Let’s hope other bars that have not yet addressed these issues will follow in your footsteps.

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.


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.


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.


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.