Round Up: Faxing for Lawyers, AI and the Law, Legal Billing Software, and More

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


When technology and law enforcement collide

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

*****

Law enforcement officers have no problem using the latest and greatest technologies to police the people, whether it’s using facial recognition tools, cellphone geolocation data, or recordings obtained from smartphone technologies such as Amazon’s Alexa. But it seems that when the people use the very same tools to police the police - well, that simply won’t do.

For example, we know that the police typically don’t like being recorded while effecting an arrest and will often order bystanders to refrain from doing so, and have even been known to take custody of devices and delete data from them. Along the same lines, law enforcement has never been a fan of a more mundane and less tech-savvy practice that many motorists engage in: flashing their headlights in order to warn other motorists of a speed trap.

So I wasn’t surprised to learn that the New York Police Department had set its sights on the 21st century version of headlight flashing: the Waze app’s user-submitted reports regarding speed taps and DWI checkpoints.

According to the New York Times, last weekend the NYPD’s acting deputy commissioner for legal matters, Ann P. Prunty, sent a letter on behalf of the NYPD to Google (the owner of the Waze app) to demand that it remove that feature from Waze. The rationale for this request was as follows: “The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving. Revealing the location of checkpoints puts those drivers, their passengers, and the general public at risk.”

If Google refused to do so, Prunty indicated that the NYPD would pursue all legal remedies available to it to achieve its goal of preventing people from sharing said information via the app.

For starters, this request, if granted, likely infringes on the First Amendment rights of ordinary citizens, but that’s an issue that the courts will have to grapple with if legal remedies are indeed pursued by the NYPD. That’s certainly an interesting issue, but what I found to be even more interesting was that the letter was a perfect example of a knee jerk reaction to technology.

I say this because people have always found ways to share information regarding the arrival or location of the police. There are code words used by kids on the street that warn others when police appear on the scene. And, as mentioned above, motorists flash their headlights after encountering a speed trap to warn other drivers. Similarly, truck drivers use their CB radios to communicate the whereabouts of police to other truckers. And certainly cell phones have been used by motorists for the purposes of sharing information via phone calls for that same reason as well.

In other words, citizens have always found ways to communicate with one another with the end goal being to avoid police interaction. But in the past they’ve used the only methods available to them at the time, which were certainly less effective and not nearly as far-reaching as an app like Waze.

Enter technology and the power of social media, and suddenly ordinary citizens have the ability to broadcast their observations of law enforcement activities far and wide. It’s important to note, however, that while the efficiency and reach of the information sharing has improved, the essence of it is the same. It’s simply people communicating with one another regarding situations that are occurring in plain sight. Technology and social media have simply amplified their voices.

In other words, as I’ve oft repeated in this column since 2008, the medium doesn’t change the message. And in this case, I would argue that the message falls within the parameters of free speech, and that imminent danger exception does not apply. The fact that the message is now more easily transmitted to a larger number of people doesn’t change that fact.

The NYPD seems to have lost sight of the fact that the online is simply an extension of the offline. Should it follow through with its threat to litigate, this will be an interesting case to follow. I strongly suspect that First Amendment rights will trump law enforcement’s knee jerk reaction to technological innovation, but only time -and a lawsuit - will tell if I’m right.

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


Federal judge on whether biometric access to phones requires a warrant

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

*****

A decade ago, smartphones were in their infancy. The iPhone was not even a year old and widespread adoption had not yet occurred. Many were suspicious of the touch screen interface, and lawyers in particular clung to the idea that they required the tactile feel of a traditional keyboard.

Fast forward to 2019, and smartphones are commonplace even amongst lawyers. In fact, according to the latest ABA Legal Technology Survey Report, 95% of all lawyers use smartphones on a daily basis.

Not only has smartphone usage grown over the past decade, so too have the technologies that power the devices. Today’s smartphones are essentially minicomputers with memory and processing power comparable to that of some desktop and laptop computers. For that reason, smartphones have become indispensable and people store all sorts of information on them.

It’s no surprise then that law enforcement routinely seeks access to smartphones of suspected criminals. Of course, constitutional protections still apply. For example, for a number of years now, it has been generally accepted that law enforcement cannot require you to provide the password to your smartphone, since doing so is compelled testimony and thus falls under the protection of the Fifth Amendment.

However, with the release of smartphones with biometric unlocking features, the waters were muddied. Many courts subsequently concluded that the biometric data used to unlock phones (ie. fingerprints and faces) is not inherently testimonial and thus requiring a defendant to open a device using biometric data does not violate the Fifth Amendment.

The tide may be turning, however, with the release of a recent federal district court decision on January 10th. Northern District of California Magistrate Judge Candice A Westmore considered this very issue and issued an important ruling in The Matter of the Search of a Residence In Oakland, California (online: https://tinyurl.com/ycs4wdy7). Specifically, the Court considered whether law enforcement should be granted a search warrant that required any individual present at the time of the search could be compelled to “press a finger (including a thumb) or utilize other biometric features, such as facial or iris recognition, for the purpose of unlocking the digital devices found in order to permit a search of the contents…”

In reaching its decision, the Court first concluded that the search request was overly broad, and that there was insufficient probable cause to: 1) compel anyone other than the suspects to unlock their devices or 2) to seize the device of anyone other than the suspects who were present at the time of the search.

Next the Court turned to the issue of whether the suspects could be required to provide biometric data to unlock any devices that were reasonably believed to belong to the suspects. At the outset the Court wisely noted that because of the rapid pace of technological change, courts must adopt rules that take into account more sophisticated technologies that currently exist or are in development and that courts “have an obligation to safeguard constitutional rights and cannot permit those rights to be diminished merely due to the advancement of technology.”

The Court then turned to ascertaining whether providing biometric data is a testimonial act, and concluded that it was: “(A) biometric is analogous to the nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial.”

Finally the Court reiterated the Supreme Court’s 2014 determination in Riley v. California that today’s smartphones contain large amounts of incredibly private data regarding the owner of the phone and others with whom that person communicates: “smartphones are minicomputers…a search of which ‘would typically expose the government to far more than the most exhaustive search of a house. A phone not only contains in digital form many sensitive records previously found in the home, it also contains a broad array of private information never found in an home in any form…’”

For any number of reasons, this ruling is notable. For starters the Court acknowledged the undeniable effects of the rapid pace of technology on our culture. It was reassuring to read this thoughtful and insightful ruling, especially since it took into account the nature of rapidly evolving technologies and how they may potentially - and sometimes unintentionally - impact our constitutional rights. Also of import is the Court’s understanding of existing technology and its on-point comparison of it to more traditionally accepted testimonial evidence.

In short, I believe that the conclusion reached by the Court was the correct one. Let’s hope other courts follow suit.

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


Must Lawyers Use AI in 2019? According to One Judge, the Answer is “Yes”

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

*****

Must Lawyers Use AI in 2019? According to One Judge, the Answer is “Yes”

Many of the lawyers I encounter are intimidated by technology. Rapid technological advancements have left them bewildered, and thus unwilling to even attempt to catch up. For those lawyers, turning a blind eye to technology and practicing law as if it were still 1995 seems like a viable option. After all, it’s worked so far, so who can blame them?

Of course, despite their chosen course of action - intentional ignorance - the steady beat of technology marches on. First it was the internet and email, then came social media and cloud computing, and now even newer technology trends are emerging, the most notable of which is artificial intelligence. And, like it or not, each of these is impacting the practice of law and the legal industry as a whole on a daily basis.

That’s why 35 states have now adopted the ethical requirement of technology competence, including New York. And, 2 states - Florida and North Carolina - now require that lawyers obtain legal technology credits as part of their CLE requirements. No doubt more jurisdictions will follow in their wake, since the effects of technology on the practice of law are inescapable and unavoidable.

If you remain unconvinced, then consider the judge’s opinion in Cass v. 1410088 Ontario Inc., 2018 ONSC 6959. At issue in this Ontario Superior Court personal injury case that was handed down in November was, in part, whether the fees billed by the defendant’s counsel were excessive.

One of the fees in dispute was a $900 fee for “legal research.” The judge did not look very kindly upon this fee, explaining that “$900.00 for legal research is problematic.”

The judge did not mince words when he opined on this issue, concluding that legal research is a basic skill and the topic allegedly researched was one with which the attorney for the defendant should have already had familiarity: 

“One assumes that counsel graduated with the basic legal knowledge we all possess.  This matter was unlikely his first blush with the world of ‘occupier’s liability’, and specifically the liability of landlords.  Counsel no doubt was familiar with the focus on the degree or control and access exercised by the landlord on the subject area.  So given all the base experience and knowledge, the need for ‘research’ by some anonymous identity is questionable.”

Next, the judge turned to the length of time that was purportedly required to conduct the research at issue, and importantly, this is where technology competence comes in. The judge notably asserted that had the attorney used an unnamed artificial intelligence research tool, far less time would have been needed to research the issue at hand (emphasis added):
"All in all, whatever this ‘research’ was would be well within the preparation for the motion.  There was no need for outsider or third party research.  If artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced.”

Although the judge failed to note which AI legal research tool he had in mind, one example of an AI-powered legal research product that might fit the bill is Casetext’s CARA which is an AI-enabled brief analyzer. CARA allows you to upload a brief or memorandum into CARA A.I., and it will then analyze the content of the document and provide you with relevant authorities.

Mark my words: When judges start reducing fees due to counsel’s failure to use AI-powered legal research, it’s yet another sign that the tide is turning. Technology is here, it’s impacting the practice of law, and, in the words of the all-knowing Borg (a race of aliens from Star Trek for those of you who aren’t Trekkies), resistance is futile.

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


How Lawyers Are Using Social Media in 2019

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

*****

How Lawyers Are Using Social Media in 2019

I’ve been covering lawyers’ use of social media in my column for the Daily Record since 2008. Back then, most lawyers believed that social media was a passing fad, despite my ardent assertions to the contrary. Some even believed that it was both unethical and unwise for lawyers to use social media. Convincing lawyers that social media was a phenomenon that they needed to learn about was an uphill battle, to say the least.

How times have changed. I first became convinced that a dramatic shift was occurring in 2011 when a reporter for the Democrat and Chronicle, Gary Craig, wrote an article entitled “Threat Alleged Via Facebook ‘Poke.’” As explained in the article, a federal judge was unable to proceed with an arraignment of a defendant who was accused of threatening a witness via a Facebook “poke.” The judge had no idea what a “poke” was, and neither did the attorneys before him, so he sought out - and obtained - the information he needed from a spectator seated in courtroom.

For me, that was a turning point. Because that’s when I knew that social media was actually impacting cases, and that lawyers were finally going to begin to take notice and want to learn about - and use -social media.

Fast forward to 2019, and these days, according to the latest Legal Technology Survey Report issued by the American Bar Association, the majority of lawyers and law firms are using social media for professional reasons in one form or another, whether it’s for business development and networking or for litigation purposes.

According to the Report, 76% of lawyers surveyed reported that their firms maintained a presence on at least once social network. And 79% of lawyers reported that they personally used social media for professional reasons. The reasons for their online interactions varied, with 70% citing career development and networking as their motivating reasons. 54% hoped to obtain clients as a result of their participation online. 48% used social media as a tool to increase their education awareness. And finally, 30% used social media to investigate their cases.

For those lawyers seeking to drum up business as a result of their online interactions, some were successful, with 35% reporting that they’d had a client retain their services directly or via a referral because of their social media use for professional purposes. 46% indicated that their online interaction never resulted in a new client, and 19% weren’t sure.

According to the Report, the most popular social media network amongst lawyers is LinkedIn. 46% of lawyers indicated that their law firms maintained a LinkedIn presence, and 65% reported that they personally maintained a LinkedIn profile for professional purposes.

The second most popular site is Facebook, with 42% of lawyers reporting that their law firms maintained a Facebook presence. 37% of responding lawyers shared that they personally used Facebook for professional reasons, and 90% indicated that they participated on Facebook for personal, non-professional purposes.

Next was Twitter, with 14% of respondents indicating that their law firms maintained a Twitter presence, and 25% reported that they interacted on Twitter for professional reasons using personal accounts. 1% of lawyers reported that a client had retained them as a result of their use of Twitter for professional reasons.

Then there are blogs, which have been around longer than social media, but have decreased in popularity with lawyers over the last few years. According to the Report, 24% of law firms maintain a blog. And, 8% of lawyers reported that they personally maintained a blog focused on a legal topic, down from 15% last year. Finally, 36% reported that a client has retained their services because of their blogging efforts, down from 43% last year. So legal blogging is clearly on the decline, but nevertheless is still a very viable business development tool.

So there you have it: lots of statistics on how lawyers are using social media. And, yes, unlike 2008, the majority of lawyers are learning about - and using - social media in 2019. Are you one of those lawyers? Is your law firm using social media? Are you? How does your social media use compare?

 

 

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


Round Up: Artificial Intelligence, Millennial Lawyers, and Law Practice Management Software

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


Louisiana court: Online anonymity doesn’t shield lawyers from ethical obligations

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

*****

Louisiana court: Online anonymity doesn’t shield lawyers from ethical obligation

Office water coolers used to be gathering places where people discussed current events and caught up on office gossip. But, like many other time-honored traditions, even water cooler conversations have been affected by technology.

Certainly these in-office discussions still occur, but much of the day-to-day discourse about current events has shifted to the online realm. Whether it’s on Facebook, in online forums, or in the comments that follow news articles, there are plenty of opportunities to comment on and share opinions about recent events. Notably, many of these comments can be made anonymously, and as a result, some people are less restrained about their opinions than they would be if their personal identities were publicly attached to them.

Of course, the perceived anonymity is often an illusion, since there are many different ways to go about determining who posted a particular comment, should the need arise to do so. That’s a lesson that was learned the hard way by Salvadore R. Perricone, an assistant U.S. attorney for the Eastern District of Louisiana.

Last month, the Supreme Court of Louisiana handed down an opinion, In re: Salvadore R. Perricone, No. 2018-B-1233, wherein the court considered whether Perricone violated his ethical obligations as a result of anonymous comments that he posted online between 2007-2014. Some of the comments related to trials for which he was the prosecuting attorney and others related to trials that his colleagues were prosecuting.

The anonymous postings included the following comments:

A statement that the defense attorney had “screwed his client!!!!,”and was just “as arrogant as [the allegedly bribed official] … and the jury knows it.”
During a federal civil rights trial involving the shooting of an unarmed man he wrote: “Perhaps we would be safer if the NOPD would leave next hurricane and let the National Guard assume all law enforcement duties.  GUILTY AS CHARGED.”
Regarding an indictment alleging conspiracy: “I read the indictment…there is no legitimate reason for this type of behavior in such a short period of time and for a limited purpose. GUILTY!!!”

When his comments were discovered and reported to a judge, an investigation was conducted and disciplinary charges were filed. After reviewing the findings and recommendations of the hearing committee and disciplinary board, the Supreme Court of Louisiana concluded that the appropriate sanction for Perricone’s conduct was disbarment.

The Court explained that Perricone’s actions were not innocuous: “When discovered, respondent’s actions caused serious, actual harm in the River Birch and Danziger Bridge cases and, most profoundly, to the reputation of the USAO. There was a potential for harm in the Jefferson and Gill-Pratt cases.”

According to the Court, disbarment was necessary for a number of reasons, not the least of which was to send a message to other lawyers to tread carefully when posting online about pending matters: “Respondent’s conscious decision to vent his anger by posting caustic, extrajudicial comments about pending cases strikes at the heart of the neutral dispassionate control which is the foundation of our system. Our decision today must send a strong message to respondent and to all the members of the bar that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the Internet.”

In other words, the lesson to be learned is one that I often repeat: the online is simply an extension of the offline world. You don’t leave your ethics at the door when you enter the online realm. Think before you post - anonymously or otherwise - and refrain from commenting about any matters that you are personally involved in or about which you have inside knowledge. Your ethical obligations require it, and your law license depends on it.

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


Round Up: Billing and Calendaring Software, Cybersecurity, and Millennial Lawyers

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


Supreme Court of Florida weighs in on judges using social media

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

*****

 

Supreme Court of Florida weighs in on judges using social media

Whether judges should use social media has been a contentious issue for some time now. Early on, the consensus seemed to be that it was problematic for judges to do so, but over time that’s changed.

So, for example in 2012, Florida’s Fourth District Court of Appeal addressed this issue in Pierre Domville v. State of Florida, No. 4D12-556 and disqualified a judge from overseeing a case because the judge was Facebook “friends” with the prosecuting attorney. But then in August of this year, the Third District Court of Appeal in Florida in in Law Offices of Herssein and Herssein v. United States Automobile Association, No. 3D17-1421 addressed the very same issue and reached a different conclusion. The court determined that it was departing from the holding in Domville and was declining to disqualify a judge as a result of his Facebook connnection with an attorney appearing in his court, since online friends are “not necessarily (friends) in the traditional sense of the word” and thus the fact that a judge is Facebook ‘friends’ with a lawyer for a potential party or witness does not necessarily mean that the judge cannot be impartial.

Just last week, the Supreme Court of Florida considered this case on appeal in Herssein and Herssein v. United States Automobile Association, No. SC17-1848. At issue was whether the lower court correctly determined that a Facebook friendship between a judge and an attorney appearing for the judge was not, in and of itself, a sufficient basis for disqualification of the judge.

In reaching its decision, the court first examined the concept of a “friendship,” explaining that simply being friends with someone does not indicate the level of closeness of the friendship: “It is commonly understood that friendship exists on a broad spectrum: some friendships are close and others are not...Thus the mere existence of a friendship, in and of itself, does not inherently reveal the degree or intensity of the friendship.”

Next, the Court applied this understanding to the concept of a Facebook “friendship” and concluded that not all Facebook friendships between a judge and an attorney appearing in their court require disqualification. The court examined the nature of Facebook connections, explaining that “(t)he establishment of a Facebook ‘friendship’ does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship’...(and) it is regularly the case that Facebook “friendships” are more casual and less permanent than traditional friendships.”

Accordingly, the Court reached the same conclusion as the majority of other jurisdictions that have recently addressed this issue and held that a Facebook friendship, in and of itself, was insufficient to warrant disqualification: “(T)he mere existence of a Facebook ‘friendship’ between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook ‘friends’ with a relationship of an indeterminate nature.”

This is, I believe, the correct decision. As I’ve opined in the past, judges are simply people and have lives outside the courtroom which include friendships with attorney colleagues that pre-date their appointment to the bench. It flies in the face of common sense to issue decisions that prevent judges from interacting on social media with the very same lawyers with whom they are already connected and with whom they regularly interact in public. It’s heartening to see that the Florida Supreme Court agrees with this position and has issued a ruling that aligns with the realities of living in the 21st century.

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


Two paths for 21st-century law firms: innovation or extinction

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

*****

Two paths for 21st-century law firms: innovation or extinction

When I graduated from law school in 1995, the world was a different place. Legal research still occurred in law libraries using books. Windows 95 had not yet been released and MS-DOS reigned supreme. The internet was just emerging on the scene and cell phones were few and far between.

Fast forward 23 years and times sure have changed, haven’t they? The effects of technology are inescapable and unavoidable. Nearly all aspects of our lives - and law practices - have been affected, from how we communicate and interact with others, to how share information, collaborate, and conduct business. And yet, despite the rapid technological advancements, many lawyers continue to practice law just as they did in 1995.

Now, this isn’t necessarily surprising. Ours is a precedent-based profession and predicting the future based on what happened in the past has historically proven to be a very successful way of doing business.

Unfortunately, that methodology is proving to be acutely ineffective in the 21st century given the tremendous and unprecedented rates of technological change. Never before has the world experienced such an incredible rate of change at such a fast pace.

The inescapable result of the impact of technology on the legal industry is that lawyers must innovate in order to survive. Unfortunately, due to the unique characteristics exhibited by most lawyers, innovation is a surprisingly difficult task to accomplish.

According to Michele DeStefano, author and Professor of Law at the University of Miami, the personality traits of lawyers often stand in the way of an innovative mindset. In her recently published book, “Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in the Law” she explains that it’s not easy for lawyers to innovate. This is in part due to the innate qualities of the types of people drawn to the law and in part due to our training.

For starters, lawyers tend to be skeptical. In fact, according to DeStefano, we’re nearly twice as skeptical as the general public. We’re also less trusting than the general public, which is no surprise given our high rates of skepticism.

Unfortunately, lawyers aren’t a very resilient bunch either, with 90 percent of us scoring in the bottom 50 percent when it comes to character resilience. We’re also more introverted than most, with 60% of us qualifying as introverts. Finally, as a group we tend to be very risk averse, a trait that flies in the face of innovation.

In other words, as DeStefano explains, “The lawyer’s temperament…is the opposite of what is required to… innovate — to creatively, collaboratively problem find and solve.”

Does that mean it’s hopeless? Is it impossible for lawyers to innovate? Of course not! The trick is to work hard to change your mindset. DeStefano offers strategies in her book that designed to do just that, so you might want to look into getting a copy.

In addition, take steps to learn about technology and how it’s impacting the practice of law. Subscribe to a few technology blogs, buy a few more books, attend technology CLEs, and approach technology with an open mind.

One book to consider reading is “Tomorrow’s Lawyers: An Introduction To Your Future.” In this book, Richard Susskind predicts how technology will affect the legal industry as a whole in the coming years and offers advice for lawyers seeking to thrive in the new world order.

Susskind explains that adopting technology will be one of the primary drivers of success for law firms seeking to gain a competitive edge: “One key challenge for the legal profession…is to adopt new systems earlier; to identify and grasp the opportunities afforded by emerging technologies. We need, as lawyers, to be open-minded because we are living in an era of unprecedented technological changes in what our machines can actually do.”

The bottom line: Technology is not your enemy, and change is inevitable. Approach both with an open mind and embrace them. Ignoring technological change in 2018 simply isn’t an option.

Embrace change and innovate - or become extinct. The choice is yours.

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


Round Up: Secure Communication, Cybersecurity, Podcasts for Lawyers, and More

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


Is coworking a viable option for solo and small firm lawyers?

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

*****

It is beyond dispute that technology has changed the legal landscape. Brick and mortar offices are no longer a requirement, as more lawyers than ever transition their firms’ data from paper to digital. As a result, the days of paper files and being tethered to your desk are long gone.

Instead, lawyers have more options than ever due to technological advancements. The proliferation of internet access and cloud computing software ushered in a new era, making it possible for lawyers to access case-related information from any location, day or night. As a result, virtual and home-based law practices have emerged as an affordable and viable way to practice law.

Of course, practicing law from a home-based or virtual law firm has its challenges, especially in New York. For starters, attorney registration procedures require that a law firm’s address be publicly listed. A post office box will not suffice, and many lawyers are understandably reluctant to provide their home addresses for publication in the online attorney registry. Also problematic is finding a suitable location in which to meet with clients and discuss confidential information.

Enter coworking as a practical, cost-effective solution for solo and small firm lawyers.

Over the years, coworking spaces have become increasingly prevalent, in part due to advances in technology that have made it easier than ever to work remotely. As someone who works remotely for MyCase, a California-based company that provides law practice management software for lawyers, I’ve kept an eye on this trend, but found that the available local options were unappealing to me for a variety of reasons.

But when I recently learned of a new coworking space just for lawyers that had just opened on the east side of town, I was intrigued. And then, after visiting the office and taking a tour, I was sold. Within days I’d signed on the dotted line and have been coworking for the past month from The Loffice at Basin Park. which is located near Bushnell’s Basin.

Coworking with other lawyers offers a number of benefits. Whether you’re looking for a location to meet with clients, an alternate address to list on your attorney registration, a home base that is closer to courts in outlying counties, or a break from the isolation of working from a virtual law firm, coworking might be just what you need. One of the most obvious benefits of using a coworking space rather than leasing your own office is cost. For just a few hundred dollars you have access to a furnished office and its accompanying address.

Coworking spaces also provide you with flexibility in terms of your office setup. Most will typically provide you with a number of different options, such as a collaborative workspace, a shared office, or a private office.

You’ll also most likely have access to office equipment such as printers, a paper shredder, a copier, a a fax machine, secure wifi, and a community kitchen. Because the particular coworking space I work from is associated with the law firm located next door (Larimer Law), attorneys who use this space also have the option of using the firm’s receptionist for greeting clients, receiving mail and packages, etc.

Finally, most coworking spaces typically provide access to conference rooms for meetings with clients, and a telecommunications room. So when you need privacy, it’s available. But when you’d like some camaraderie, a sense of community, or a colleague to bounce an idea off of, you have that available to you, too.

So, if you’re a Rochester lawyer who is practicing law from a home office or other atypical setup, coworking might be worth considering. As your law practice grows or changes over time, you’ll need options for flexible expansion at an affordable price. Coworking provides just that, so don’t overlook coworking spaces; they might be just what you need.

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


Fitbit Evidence Provides Alibi For Victim’s Boyfriend

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

*****

Fitbit Evidence Provides Alibi For Victim’s Boyfriend

Last week, I wrote about a recent case where Fitbit data was used in a California case to convict the defendant, the victim’s step-father, of her murder. In that case, the victim was wearing a Fitbit and her heart rate data obtained from the device conflicted with the defendant’s version of events, ultimately resulting in his conviction.

That wasn’t the first time I covered the impact of wearable devices in court. in 2015, I wrote about two cases where Fitbit data was used in litigation: one where it was offered as evidence to support a personal injury claim and the other where it was used to disprove a complainant’s rape allegations. Then in 2017, I covered a case where Fitbit data and other digital evidence was used in a Connecticut murder prosecution to convict the defendant of murdering his wife.

Another criminal case from earlier this year in Wisconsin that I haven’t yet covered was notable because it involved Fitbit data being used as alibi evidence. In that case, the defendant, George Burch, alleged that the victim’s boyfriend, Doug Detrie, had forced him to commit the murder at gunpoint. However, a host of evidence, digital and otherwise, belied his assertion.

A good portion of the digital evidence used to pinpoint Burch’s movements on the night of the murder was obtained from his cell phone and Google Dashboard. By using that data, expert witnesses were able to show the jury that Burch was at the scene of the murder on the morning in question and then subsequently traveled to the location where they body was disposed of after the murder was committed.

Burch’s defense was that although he committed the murder and disposed of the body, he did so because Detrie held him at gunpoint and forced him to commit those acts. Fortunately for Detrie, he was wearing a Fitbit at the time of the murder and the Fitbit data contradicted Burch’s claims.

Not all of the Fitbit data was admissible, however. Specifically, the data that showed that Detrie was sleeping at the time of the murder was held to be inadmissible due to scientific disagreement regarding the reliability of that specific data. Other Fitibit data was deemed admissible, however, and that data provided an alibi that made all the difference in this case.

According to the Fitibit data, Detrie didn’t take nearly the number of steps required on the evening of the murder for his activity levels to comport with the movements alleged by Burch. The Fitibit data showed that Detrie took 20-30 steps at approximately 4 a.m. on the morning of the the murder. He asserted that he went to the bathroom at that time. Burch’s claims would have required Detrie to walk at least 2 or more miles on the evening of the murder.

After hearing the testimony and considering the evidence, the jury concluded that Burch was wearing his Fitbit on the evening of the murder and that the data obtained from it was accurate - and provided him with a much-needed alibi. The jury thus discounted Burch’s version of events and convicted him of the murder.

This is yet one more example where data from a wearable device provided crucial evidence that made all the difference in the outcome of the case. It’s also further proof that the devices we rely on and carry with us 24/7 collect a wealth of information about our movement and activities, all of which is readily accessible by law enforcement, sometimes with, and other times without, a warrant.

Certainly this should give you pause, and if nothing else, you might want to check the privacy settings of your smartphones, wearable devices, and the online accounts that sync with your mobile devices. Ascertain what type of data is collected and for what purpose, and then determine the value of the services provided using that data. If it’s not all that important to you, then switch off the ability to collect that data, to the extent that it’s possible.

No doubt there are plusses and minuses to living in the 21st century. The benefits include convenience, flexibility, and 24/7 access to information, but when balanced with the loss of privacy, are sometimes outweighed. The good news is that in some cases, the digital data can be your friend and provide you with an alibi, but that’s not always the case. The decision regarding how much privacy to sacrifice in order to take advantage of the positive aspects of living in the digital age is a personal one.The choice is yours, and it’s not always an easy one to make.

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


Fitbit Data Used As Evidence In A New Murder Case

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

***

Fitbit Data Used As Evidence In A New Murder Case

Wearable devices are becoming incredibly common. Take a look around - you’ll notice Fitbits, Apple Watches, and other wearable devices on the wrists of many people whom you encounter on a daily basis, including your legal colleagues and co-workers. They’re being used to track people’s health and fitness information, to ensure people are notified of important messages and events, and to assist with navigation, among other things.

Because they track so many aspects of our lives, the data collected and stored on the devices and shared with our phones can sometimes prove invaluable in court. I find their evidentiary potential to be incredibly interesting, so I started following and writing about cases where data from wearable devices has been used as evidence in litigation. For example, in 2015, I wrote about two cases where Fitbit data was used in litigation: one where it was offered as evidence to support a personal injury claim and the other where it was used to disprove a complainant’s rape allegations.

Then in 2017, I covered a case where Fitbit data and other digital evidence was used to support a Connecticut murder prosecution. The digital evidence included cellphone records for the defendant and his wife, 2) computer records from the defendant’s laptop, 3) Facebook records for the defendant, his wife, and his girlfriend, 4) text messages, and 5) Fitbit records for the victim, the defendant’s wife.

Now, there’s a new case where Fitbit data is being used in a murder prosecution, this time in California. In this case, the accused is the step-father of the victim. The victim was discovered in her home on Thursday, September 13th by a coworker after she failed to show up for her job. She was deceased, slumped over a desk, and was wearing a Fitbit while holding a butcher knife. She had sustained a deep cut to her neck. What initially appeared to be a suicide was later determined to be a homicide after the medical examiner determined that she’d suffered from many deep wounds to her head and face.

When questioned by police, her step-father informed them that he had stopped by her home on Saturday, September 8th to drop off pizza. He also stated that later in the day he saw her again when she drove by his home with someone in the passenger seat of her car. He denied harming her.

However, evidence obtained by the investigating officers conflicted with his account. First, there was surveillance video showing that his car had been at her home for 21 minutes on Saturday, September 8th, from 3:12 - 3:33 pm. The video did not show her driving from her home in her car subsequent to that point in time, despite the defendant’s claims to the contrary.

There was also digital data obtained from the victim’s Fitbit. It showed that her heart rate spiked at 3:20 p.m. on September 8th. It then slowed down quickly and her Fitbit stopped registering a heartbeat at 3:28 p.m. In other words, her Fitbit showed that her heart had stopped beating during the timeframe that the defendant’s car was at her home.

Based on the surveillance video and Fitbit evidence, and his conflicting account, he was arrested and charged with her murder. The case is still pending, so his ultimate fate remains unknown. But it’s a great example of the valuable evidence that can be obtained from wearables. While certainly not conclusive, when considered in conjunction with other evidence discovered throughout an investigation, this type of data can sometimes make - or break - a case. Tune in next week for an example of a case where, instead of making the prosecution’s case, wearable data instead provided the accused with a viable alibi.

 

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


Texas Bar on lawyers seeking legal advice from other lawyers in online forums

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

*****

Texas Bar on lawyers seeking legal advice from other lawyers in online forums

Lawyer-only online forums and listservs are commonplace. Often these forums are hosted by bar associations, but that’s not always the case. Facebook, LinkedIn, and Reddit private groups are often created by lawyers for lawyers. Because these groups are typically gated communities, lawyers can comfortably discuss a multitude of issues. Referral sources are sought, trending legal issues are mulled over, and opinions are solicited regarding issues arising in a lawyer’s practice.

It’s the last topic that was addressed in a recent Texas ethics opinion. One issue considered in Opinion 673 was whether it is ethical for lawyers to seek advice for the benefit of their clients from other lawyers outside of their firm in an online discussion group.

At the outset, the Professional Ethics Committee for the State Bar of Texas acknowledged that informal consultations with other attorneys occur often, both online and offline: “It is common for lawyers to have informal lawyer-to-lawyer consultations touching on client-related issues. Informal consultations may occur in a variety of situations, such as when a lawyer poses questions to a speaker at a CLE seminar, when a lawyer seeks advice from members of an online discussion group, or when a lawyer solicits the insight of a trusted mentor. Informal consultations allow lawyers to test their knowledge, exchange ideas, and broaden their understanding of the law, with the realistic goal of benefiting their clients.”

However, the Committee emphasized that when doing so, it’s important to have a full understanding of your ethical obligations, including the duty of client confidentiality. Importantly, not all consultations will involve a discussion of confidential information, such as “asking general questions about a particular statute, rule or legal procedure.”

Of course, that’s not always the case, and on occasion, an attorney may “consider it necessary to provide a certain amount of factual context in order to frame the issue and obtain useful feedback.” In those cases, whether the consultations occurs online or off, a lawyer must tread lightly, and be fully aware of the ethical implications.

That being said, the Committee explained that, with limitations, doing so is permissible, even in the absence of consent from one’s client: “It is the opinion of the Committee that Rules 1.05(d)(1) and (2) allow a lawyer to reveal a limited amount of unprivileged confidential information to lawyers outside the inquiring lawyer’s law firm, without the client’s express consent, when the inquiring lawyer reasonably believes that the revelation will further the representation by obtaining the responding lawyers’ experience or expertise for the benefit of the client, and when it is not reasonably foreseeable that revelation will prejudice the client.”

The Committee provided the following tips to assist lawyers in walking the fine line between a permissible consultation and one that impermissibly disclosed client confidences. First, it’s important to limit the “consultation to general or abstract inquiries that do not disclose confidential information relating to the representation.” If that’s not possible, it’s permissible to “reveal a limited amount unprivileged client information in a lawyer-to-lawyer consultation, without the client’s express consent, when and to the extent that the inquiring lawyer reasonably believes that the revelation will benefit the inquiring lawyer’s client in the subject of the representation.” However, when doing so, it’s necessary to use “a hypothetical that does not identify the client,” otherwise doing so is unethical “if it is reasonably foreseeable that the disclosure of the information will harm, prejudice or embarrass the client.”

So if you’ve ever wondered about the parameters of interacting ethically online in lawyer forums when discussing client hypotheticals, then some of your questions have been answered by this opinion. Not surprisingly, online discussions aren’t treated differently than offline discussions for ethics purposes. After all, as I always say, the online is simply an extension of the offline. That being said, online interactions are much more easily recorded for posterity’s sake - and for review by an ethics committee. The lesson being - keep that in mind when engaging online and err on the side of caution when seeking consultation regarding issues that may involve client confidences.

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