Think before you post to social media lest you face 6-month suspension

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

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Think before you post to social media lest you face 6-month suspension

If I’ve said it once, I’ll say it again: think before your post. This recommendation applies to everyone, of course. But if you’re a lawyer, then you’d best heed my advice and tread lightly when posting commentary online on social media sites or elsewhere. Otherwise you run the risk of running afoul of your ethical obligations and unleashing the wrath of your bar’s disciplinary body. At the very least, you’ll face embarrassment and at the worst you may be disciplined or even barred from the practice of law altogether.

If you’re not yet convinced, then maybe the results of a very recent South Carolina disciplinary action will do the trick. In the Matter of David Paul Traywick, Opinion No. 28037, which was filed in June 2021, an attorney faced the music for his online behavior to the tune of a 6-month suspension.

At issue in this opinion were 12 different postings made on Facebook by the attorney in question. Notably, the Commission on Lawyer Conduct received a significant number of complaints about his actions: “Beginning in June 2020, ODC received complaints from forty-six separate individuals regarding statements Respondent made on his Facebook page. At that time, Respondent maintained a personal Facebook account with a privacy setting of ‘public,’ meaning his posts were visible to anyone, not just his Facebook ‘friends,' and even if the person did not have a Facebook account. In his Facebook profile, Respondent identified himself as a lawyer and referenced his law firm.”

In its opinion, the Commission focused on two particularly inflammatory statements, both of which were “not expressive; they (we)re expressly incendiary…and had the effect of inciting, gender and race-based conflict beyond the scope of the conversation…(and the) fact Respondent is a lawyer exacerbated this effect.”

One of the statements was about tattoos and his extreme dislike for both tattoos and people with tattoos, particularly “these females.” The other related to the murder of George Floyd, wherein he insinuated - by using very derogatory language - that Mr. Floyd’s life didn’t matter and as proof of that fact, he noted that the stock markets went up in the days after his murder.

The Commission explained that both statements were quite troubling, and that the posting regarding Mr. Floyd was of particular concern since it “was intended to incite intensified racial conflict not only in Respondent's Facebook community, but also in the broader community of Charleston and beyond. We hold this statement in particular tended to bring the legal profession into disrepute, violated the letter and spirit of the Lawyer's Oath, and constitutes grounds for discipline under Rules 7(a)(5) and 7(a)(6), RLDE, Rule 413, SCACR.”


For that reason, the Commission found that because of the attorney’s actions and the extremely inflammatory nature of his postings, he should be suspended from the practice of law for 6 months and would also be required him to complete “at least one hour of diversity education…a comprehensive anger management assessment…(and) undergo an evaluation through the Lawyers Helping Lawyers program…” In other words, they determined that those postings were strong evidence that he had a multitude of issues that needed to be addressed.

So my dear readers, don’t be like David. When you’re interacting online and find yourself particularly upset about a random issue and decide that you’d like to share your ire with friends near and far, please, for the love of all that is holy, take a deep breath. Then take another one, and then one more. Finally, ask yourself if it’s absolutely imperative that you share your frustration with the world. The answer is almost certainly “no.”

But if for some reason you should determine that the answer is “yes” and your opinion relates to a particularly divisive topic, perhaps consider asking your life partner, or even one of your kids, for their opinion as to whether you should post it. Then maybe ask your goldfish or your cat.

By the time you’ve solicited these opinions, you’ll likely have calmed down a bit, and probably won’t care as much about the issue as you did 10 minutes earlier. In which case, don’t post about it. Put your keyboard down, shut your laptop, and slowly step away from your desk. And go watch a movie or read a book. Maybe even take a walk.

Whatever you do, I beg of you, don’t post that rant online. Trust me; it’s for the best. One day you’ll thank me.

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.


Here’s why your firm needs to be in the cloud

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

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Here’s why your firm needs to be in the cloud

If you’re familiar with my column you know that I have been urging lawyers to learn about - and use - technology for over a decade now. I always stress how important it is for lawyers to educate themselves about the technologies available for use in their law practice and to make informed decisions regarding which tools to invest in for the long haul.

The reason it’s so important for lawyers to understand technology is because it has a direct impact on both the practice of law and the business of running a law firm. For example, cloud computing used to be viewed with skepticism and distrust. But no more. Because cloud-based software singlehandedly made it possible for the legal profession and courts to continue to function throughout the pandemic, it’s now a commonplace technology that is used in law firms across the country.

The increased use of cloud-based technology is a positive trend for any number of reasons, not the least of which is that it protects law firms from ransomware attacks. This is because law firm data stored in the cloud is housed on servers located offsite; as a result the servers - and the data stored on them - is protected from ransomware attacks.

These types of cyberattacks occur when bad actors are able to install malware on a law firm’s in-office systems, oftentimes by exploiting a vulnerability caused by a failure to install necessary software updates. When that malware is activated, all data stored on a law firm’s on-premises servers can be locked up and held hostage for ransom. Meanwhile, any and all law firm data stored or backed up in the cloud will be immune from the attack since the data is not stored on the hacked premises-based servers.

So if your law firm isn’t using cloud-based software to house or backup its data, it should be. If you’re still not convinced, perhaps a recently proposed New York Senate Bill will do the trick. In May, Senate Bill S6806A was introduced in the New York State Senate by Senator Diane J. Savino. (Online: ). This bill "prohibits governmental entities, business entities, and health care entities from paying a ransom in the event of a cyber incident or a cyber ransom or ransomware attack.” Presumably the goal is to deter would-be criminals from engaging in ransomeware cyberattacks by removing the incentive: the ransom.

However, the bill has the practical effect of precluding businesses that are victims of a ransomeware attack from complying with the the ransom demands. So, if this bill is enacted and your law firm is a victim of a ransomware attack, any law firm data stored on your firm’s hacked in-office servers will be lost since you will be prohibited from paying the ransom required to get it back. On the other hand, under this same scenario, any firm data stored on the remote cloud-based servers will continue to be accessible, and your inability to pay ransom will be of no consequence.

Notably, three other states are considering similar legislation, but under those bills only taxpayer or state funds will fall under the ransomeware payment ban.

The key takeaways for lawyers are twofold. First, make sure to regularly update any and all premises-based software and enact other cybersecurity measures, including training your employees to detect and avoid phishing and spoofing emails. Second, make sure to store your law firm’s data in the cloud. Not only will your firm enjoy the benefits of 24/7 convenient, secure, and flexible access to law firm information, the data will also be protected from ransomware attacks.

So if your firm isn’t already using cloud-based software, what are you waiting for? There’s no time like the present to make this important transition to the cloud.

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.


Will lawyers continue to be averse to technology post-pandemic?

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

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Will lawyers continue to be averse to technology post-pandemic?

As the pandemic recedes and we head into the “new normal,” no one is exactly sure what law offices will look like post-pandemic. Will lawyers work remotely more often than before? Will the “face time” requirements of year’s past fall by the wayside as remote work increases? Will law firms continue to adopt new technologies into their firms in order to facilitate new ways of working?

Only time will tell how these questions will be resolved. In the meantime, we have the results from a number of recent surveys available that offer predictions and possible answers to these inquiries.

For example, the recently released 2021 Wolters Kluwer Future Ready Lawyer Survey: Moving Beyond the Pandemic tackles these issues and much more. This annual survey always offers insightful analysis of legal trends, and this year’s Report was no different. The 2021 survey includes data obtained from 700 legal professionals across nine European countries and the U.S. from a broad range of law firms and legal departments and provides a wealth of statistics about law firm, the effects of the pandemic, and legal technology purchasing decisions.

One of the main issues addressed in this year’s survey was how the pandemic impacted attitudes about technology, change management, and remote work. One of the key findings was that one effect of the pandemic was an increased realization of the value of technology, and the many benefits that the legal profession derives from it: “The ability to use technology to ensure performance became more important as the pandemic sent professionals out of the office and into their homes where they interacted remotely with clients, colleagues and the courts. The crisis made clear that technology solutions are essential to business resilience and client service. The survey also confirms that professionals see digital transformation and technology as a key driver of improved performance, efficiency and productivity ahead and that increased use of and investment in technology solutions will continue.”

Because of the pandemic and the resulting social distancing requirements, law firm lawyers and staff were unexpectedly displaced from their offices. Law firms were forced to transition to remote work, and many were wholly unprepared for that shift. For that reason, it’s no surprise to learn that 77% of survey respondents shared that one of the top trends that will impact their law firm over the next three years is the increasing importance of legal technology. 

This is because technology played such a key role in addressing the remote working challenges that law firms encountered at the start of the pandemic. That’s why it makes perfect sense that 63% of survey respondents reported that their law firms planned to increase technology spend (up from 60% in 2020). And, since cloud-based tools were instrumental to business resiliency during the pandemic, it’s not surprising to learn that according to 75% of those surveyed, cloud computing software was the top technology that their firms planned to purchase in the near future.

The survey results also showed that emerging technologies would also play a part in many law firms future technology spend. Survey respondents indicated that the following technologies would have an impact on their firm over the next three years: 1) big data and predictive analytics (69% up from 58% in 2020), 2) machine learning (67% up from 57% in 2020), 3) artificial intelligence (65% up from 59% in 2020), and 4) robotic process automation (63% up from 49% in 2020).

However, the survey results also indicated that although law firms seemed to be exhibiting an increased interest in purchasing new technology, most were not fully prepared to implement technological change. Only 32% of respondents believed that their firms were very prepared to use technology to be more productive. Similarly, only 30% said that their firms were very prepared to effectively implement change management processes. A mere 25% agreed that their firms were very prepared to automate routine processes. Finally, less than a third of respondents (30%) agreed that their firms had staff capable of leveraging technology and only 26% were very prepared to recruit or retain technology staff.

Given those statistics, you might think that the future of technology adoption in law firms looks bleak. However, the authors of the survey would beg to disagree. They believe that the pandemic ushered in a new phase of technology use in the legal profession: “(O)ne thing is certain: the digital transformation of the industry gained unprecedented momentum, which continues today. In the past year, technology was a lifeline to the legal profession, in serving clients, connecting with colleagues and driving efficiency and productivity. As the industry continues to recover and a ‘new normal’ emerges, technology will be a driving force.”

I tend to agree, but then again my official title is “Legal Technology Evangelist,” so perhaps I’m a bit biased. What do you think? Will technology adoption increase significantly in the years to come, or will the legal profession overall continue to be technology averse?

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.


NY’s in-state office requirement is on its last legs

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

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For years now, New York has steadfastly resisted the realities of practicing law in the 21st century by requiring non-resident lawyers to have an office in the state. This despite the fact that rapid technological advancements over the past decade have enabled lawyers to work from any location and access case-related information with the click of the button, at any time, day or night. Lawyers are no longer tethered to their offices and can practice law from just about anywhere using cloud-based tools. As we learned during the pandemic, brick and mortar offices are unnecessary and law firms can function - and even profit - with dispersed workforces operating remotely from their homes.

Nevertheless, lawyers licensed in New York and who reside elsewhere are still required to maintain physical office space in the state in order to practice law here. This mandate is imposed by Section 470 of the Judiciary Law, which has been challenged in court on a number of occasions, but still remains in effect.

Most recently, Section 470 was the focus of a recent ethics opinion issued by the New York State Bar Association: Ethics Opinion 1223. Notably, as you’ll learn below, this may very well be the last ethics opinion to address this law, since it will likely be repealed in the near future.

At issue in this opinion was whether “a New York lawyer (may) rent space to other lawyers as a nonlegal business, and provide them with facilities and equipment to operate their separate law practices…”

The Committee explained that for a lawyers licensed in New York who also reside in New York, having a non-permanent office does not trigger Section 470: “(A) New York lawyer may work out of his or her residence in New York, but not want to meet clients there or use a home address for business…(since) an office that the lawyer does not occupy full-time enables the lawyer, at relatively small expense, to meet both client needs and the lawyer’s own law practice management goals.”

However, according to the Committee, non-resident lawyers with a New York license who seek to take advantage of the office rental situation proposed by the inquiring attorney would need to ensure that the office arrangement meets the requirements of Section 470: “A non-resident attorney who is admitted to practice in New York and who practices New York law must have an office in New York that meets the minimum requirements of Section 470, but we express no opinion as to what Section 470 requires.”

In reaching this conclusion, the Committee highlighted a recent turn of events that indicated that Section 470 may very well be repealed in the near future by the passage of Senate Bill S700. The Committee explained that “(i)n January 2019, the New York State Bar Association adopted a resolution calling for the repeal of Section 470. The President of the Bar Association stated: ‘In a digital era where attorneys across the street and around the world are just a click away on their computer or smart phone, an antiquated rule from over a century ago requiring a physical office in the state no longer serves any purpose.’” 

And then in a footnote, the Committee noted that on the same day that this opinion was published “the New York State Senate adopted S700. The bill has been referred to the Assembly Judiciary and Rules Committees.”

As of the week of June 15th, the bill has been delivered to the Assembly and referred to the Judiciary.

So change is afoot, and at long last there is a very good chance that this antiquated requirement will be no more. Here’s to the steady march of progress, the rapid pace of technological innovation, and the impact of both on the practice of law. Change is often good - especially when it increases the ability of lawyers to practice law on their own terms and utilize technology to do it. I don’t know about you, but in this case I’m all for it.

NY’s in-state office requirement is on its last legs

 

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 District Court judge rules on discoverability of Fitbit data

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

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Federal District Court judge rules on discoverability of Fitbit data

These days, technology is inexorably intertwined with our daily lives. We interact with others online for both business and social purposes. We carry mobile phones with us everywhere we go. We use cloud-based software so that we can access our data and online communications using any internet-enabled device. We purchase and pay for goods online without ever leaving our homes. We wear smart watches and fitness devices that track our every move.

As we head into the post-pandemic world, our experiences with social distancing requirements only served to increase our reliance on technology - so much so that it’s often difficult to envision a world where we’re no longer “connected.”

Because of the ubiquity of technology in our day-to-day lives, it’s no surprise that the data created by and stored in both the cloud and on our devices can be useful in litigation. For that reason, access to this data is often requested during the discovery phase of of a case. Of particular interest in personal injury matters is the data obtained from fitness devices, something I’ve written about a number of times in the past.

Most recently, this issue came up in a federal case out of the Eastern District of Missouri, Eastern Division. In Bartis v. Biomet Inc., Case No. 4:13-CV-00657-JAR, the plaintiffs alleged that a defective artificial hip implant manufactured by the defendants caused them to suffer substantial injuries. One plaintiff, Guan Hollins (“Hollins”), asserted that he continued to experience pain and lack of mobility due to the implant.

During the course of discovery, Hollins shared that eight months after the hip implant was removed he began to regularly wear a Fitbit, and that the device “tracks his number of steps, heart rate, and sleep.” The defendants then made the following discovery request: “Plaintiff Guan Hollins shall produce all data, including step counts, from his Fitbit from the time he began wearing the device through the present date. Hollins may redact any information concerning his heart rate, sleep records, or location, as such information is not relevant to this litigation and raises privacy concerns.”

Hollins objected to the request on the grounds that it was “overly broad, unduly burdensome, not properly limited in time and scope,…not calculated to lead to the discovery of admissible evidence,” and that the data from the device was unreliable.
The Court disagreed, and concluded that the fact that a plaintiff wears a fitness tracking device should not, in and of itself, allow a defendant to engage in a fishing expedition for evidence. But that in the case at hand the data could be relevant to disproving Hollins’ claims of long term injury and pain, and that his objections to the evidence related to its admissibility and weight, not discoverability.

Accordingly the Court determined that the Fitbit data should be turned over: “Plaintiff Guan Hollins shall produce all data, including step counts, from his Fitbit from the time he began wearing the device through the present date. Hollins may redact any information concerning his heart rate, sleep records, or location, as such information is not relevant to this litigation and raises privacy concerns.”

This case is yet another example of the increasing relevance that technological advances like fitness tackers have in litigation matters. Because the pandemic’s effects have further increased societal comfort levels with all types of technology, litigators will need to stay abreast of the many tools that store data both locally and in the cloud, and ensure that they fully understand how and where cloud-based data is stored.

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.


Florida Bar on The Ethics of Accepting Venmo and Other Online Payments

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

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Florida Bar on The Ethics of Accepting Venmo and Other Online Payments

The effects of the pandemic on the practice of law - and on our society overall - will be long lasting and significant. It will likely take years to fully appreciate how much things have changed. That being said, many of the structural modifications to our work culture are already apparent, and have been caused by the increased prevalence of remote work, social distancing requirements, and economic turbulence.

During the pandemic, many law firms initially struggled to stay afloat because of the high levels of uncertainty and the need to avoid in-person interactions. Business processes were interrupted, and traditional forms of payment collection were stalled as a result of the touchless requirements of the pandemic. Out of necessity, however, law firms quickly pivoted and many that had staunchly resisted accepting credit cards using online payment tools suddenly shifted gears.

Of course, there are many different ways to accept online payments from clients, and the functionality and privacy features of these tools vary greatly. That’s why it’s no surprise to learn that lawyers who wanted to ethically use online payment tools turned to their local ethics committees for guidance.

For example, in March the Florida Bar Professional Ethics Committee released Proposed Advisory Ethics Opinion 21-2,which squarely addressed this issue. (Note: it has yet to be approved for release as a final opinion).

In that opinion, the Committee acknowledged the increase in inquiries of this nature since the start of the pandemic: “The Florida Bar Ethics Department has received several inquiries whether lawyers may accept payment from clients via Web-based payment-processing services..This also is an increasingly frequent question on the Bar’s Ethics Hotline. Accordingly, the Professional Ethics Committee issues this formal advisory opinion to provide Florida Bar members with guidance on the topic.”

In reaching its determination as to whether lawyers can ethically use online payment tools, the Committee explained that accepting credit and debit cards via online payments is commonplace for businesses in 2021. Therefore it makes no sense to preclude lawyers from accepting this type of payment: “The Rules of Professional Conduct are ‘rules of reason’ and ‘should be interpreted with reference to the purposes of legal representation and of the law itself’…When reasonable to do so, the rules should be interpreted to permit lawyers and clients to conduct business in a manner that society has deemed commercially reasonable while still protecting clients’ interests. Permitting lawyers to accept payments via payment-processing services under the conditions expressed in this opinion satisfies those objectives.”

Because the Committee readily acknowledged that permitting attorneys to accept online payments simply made sense, the Committee concluded that it is ethical for lawyers to accept this type of payment from clients, but with certain caveats: "A lawyer ethically may accept payments via a Web-based payment-processing service (such as Venmo or PayPal), including funds that are the property of a client or third person, as long as reasonable steps are taken to protect against inadvertent or unwanted disclosure of information regarding the transaction and to safeguard funds of clients and third persons that are entrusted to the lawyer.”

The Committee explained that lawyers must protect confidentiality when using online payment tools and cautioned lawyers to familiarize themselves with their online payment platform of choice and then take steps to ensure that client confidentiality is preserved. For example, the Committee advised that if lawyers choose to use Venmo to accept payments, the app’s privacy settings will need to be adjusted in order to ensure confidentiality: “If, as with Venmo, the service being used permits the recipient to control the privacy setting, the lawyer must select the most secure setting to mitigate against unwanted disclosure of information relating to the representation.”

The Committee also recommended that lawyers who choose to accept online payments from clients consider including language like this in their retainer agreements:

“As a convenience to our clients, we accept payment for our services via certain online payment-processing services. The use of these services carries potential privacy and confidentiality risks. Before using one of these services, you should review and elect the privacy setting that ensures that information relating to our representation of you is not inadvertently disclosed to the public at large.”

Finally, the Committee wisely acknowledged that technology is always changing and thus their recommendations regarding specific products were not intended to be inelastic: “The discussion about specific applications in this opinion is based on the technology as it exists when this opinion is authored and does not purport to address all such available technology. Web-based applications and technology are constantly changing and evolving. A lawyer must make reasonable efforts to become familiar with and stay abreast of the characteristics unique to any application or service that the lawyer is using.”

While this opinion is not yet in its final form, it offers lots of instructive insight and guidance for lawyers seeking to accept online payments in their firms. It covers a lot of ground, so make sure to read it in its entirety for advice regarding trust account reconciliation and other issues unique to accepting credit card payments for legal services.

And finally, if your firm isn’t already accepting online payments, what are you waiting for? There’s no better time than now to make that leap.

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.


Are legal professionals ready to return to the office?

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

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Now that mask mandates are being lifted across the country, the return to in-office work seems inevitable. However, anxiety about COVID-19 remains high due to the absence of consistent universal protocols and less-than-ideal vaccine rates, especially amongst children, many of whom do not yet qualify for the vaccine.

For those reasons, many legal professionals are reluctant to return to the office full-time, or even on a hybrid basis. However, despite the general sense of uneasiness, not all law firm leaders are willing to address these concerns. This presents a challenge for legal employers seeking to fully re-open their offices this summer.

The high levels of discomfort expressed by many lawyers regarding the return to the office was highlighted in by the results of recent survey of legal professionals. The survey, “Lawyers Perspectives on Returning to the Office,” was conducted by Law360 and Pulse and Major, Lindsey and Africa. More than 2,500 attorneys responded to it and the results provide lots of useful insight into how different segments of the legal professional population view the return to in-office work.

Not surprisingly there was a marked difference in perspective depending on the age, gender, geographical location, and job function of the responding attorney.

For example, 46% of law firm partners reported that they were “eager” or “very eager” to return to the office compared to only 27% of associates. Younger attorneys also expressed more of a reluctance to return to a 5-day in-office work week schedule, with only 7% wanting to do so compared to 27% of partners.

Similarly, a generational divide was apparent when it came to attitudes about the return to in-office work. 51% of Baby Boomers and 57% of attorneys who were part of the Silent Generation were “eager” to return to the office. In comparison, one 22% of Millennials and 40% of Generation X attorneys were “eager” to transition to in-office work.

Older attorneys were also more likely to seek a return to working in-office 5 days per week. 30% of Baby Boomers were embraced that concept, compared to only 21% of Generation X attorneys and 10% of Millennial lawyers. In comparison, a hybrid work schedule where in-office work occurred a few times each week was supported by 41% of the Baby Boomer lawyers surveyed, 48% of the Generation X lawyers, and 49% of Millennials.

There were also differing perspectives offered by men and women when it came to the return to work. More men (47%) were “eager” to return to the office than women lawyers (28%). Men were also more inclined to return as soon as possible and were less concerned about achieving herd immunity. 26% of women lawyers wanted to wait for herd immunity compared to only 16% of men.

Given these varied results, it’s clear that law firm leaders seeking to return to full capacity operations in-office in the near future face an uphill battle. Conflicting interests are at play and many employees are resistant to the idea of retiring to work full-time - and for very valid reasons.

The question then remains: Will legal employers take heed and address these legitimate concerns prior to requiring legal professionals to return to the office on a full-time basis? Or will the reluctance be brushed aside and ignored, to the very real detriment of the mental and physical health of both the legal professionals themselves and their families?

That’s a question for the ages, and only time will tell. But if you happen to be in the position of making that decision on behalf of others in your law firm, I strongly recommend that you tread lightly. Otherwise you run the risk of experiencing the migration of foundational talent from your firm, an event that could likely have a detrimental impact on your firm’s long term - and successful - recovery from the effects of the pandemic.

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.


ABA report provides post-pandemic advice for lawyers

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

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ABA Report Provides Post-Pandemic Advice For Lawyers

 

The pandemic and its effects have dramatically affected the practice of law and will continue to to have a long-term impact on the ways that legal work is conducted in the years to come. The good news is that now that vaccine rates are on the rise in the United States, it’s possible for members of the legal profession to envision and prepare for the post-pandemic world.

That’s where a new report issued by the ABA Coordinating Group on Practice Forward comes in. This Report was published a few weeks ago and is designed to increase understanding about both the impact of the pandemic on the practice of law and predictions about the future of the legal profession.

The Report, “Practicing Law in the Pandemic and Moving Forward: Results and Best Practices from a Nationwide Survey of the Legal Profession,” was based on input from 4,200 ABA members “from all geographic areas, practice settings, sizes of firms, corporations, and organizations, levels of experience, age, family status, races and ethnicities, types of gender identity, and types of disabilities.” The results cover a broad range of topics such as the impact of the pandemic on the legal profession, the post-pandemic expectations of lawyers, the impact of the pandemic on diversity and inclusion, and recommendations for both legal employers and individual lawyers.

The Report included, among other things, recommendations for lawyers seeking to take advantage the “new normal” on the other side of the pandemic. For example, one key piece of advice contained in the Report for lawyers in leadership positions is that they should take steps to maintain law firm culture now that working remotely has become commonplace and will likely continue in the post-pandemic world.

Notably, the authors emphasized the importance of having the technology in place to facilitate communicating and collaborating with work colleagues regardless of where they happen to be working: “(T)he pandemic has underscored the importance of collaboration, communication, and teamwork. Going forward, organizations need to better understand how to foster resilient, effective and gritty teams that can work well together, rather than a culture where lawyers are siloed, rarely interact at a personal level, and are prone to hoarding work or clients for themselves.”

Another key piece of advice from the Report is the need for law firm leaders to prioritize technology spend in order build in business resiliency. This is because the pandemic ushered in a remote working revolution, and out of necessity, most law firms were eventually able to put technology stacks into place during the pandemic. More often than not the tools relied upon to facilitate remote work included cloud-based tools since putting that software in place was the only way to ensure continued operation and financial stability.

For many firms, those technologies now play an important part in their business continuity plan and help to protect the firms from the effects of another unplanned disruption. According to the authors of the Report, this built-in business resiliency is one of the keys to success in the post-pandemic world: “If the profession is to move forward to more remote working, employers need to provide both state-of-the-art technology and readily available staff to help out when glitches arise. It could, for example, be a good investment for firms to provide stipends that help lawyers, as well as staff and paralegals, to obtain the resources that they need to sustain a home office…”

Finally, the authors of the Report suggested that the pandemic offers the legal profession an opportunity to restructure the way that law firms operate. For far too long legal employers have remained stubbornly resistant to fundamental changes and have insisted that alternative ways of practicing law, such as remote work, were an impossibility given the nature of the practice of law.

As the authors explain, the pandemic has shown that their protestations were grounded in outdated assumptions, rather than in facts: “The unprecedented transition to remote work has truly created a ‘new normal,’ and this paradigm shift will have far-reaching consequences for the profession well after the pandemic has abated…As we emerge from the pandemic, we have the unique opportunity to re-evaluate and reimagine all aspects of the practice of law. For too many years, law firms, companies, and other work settings that employ lawyers have defaulted to structures, policies, and practices that are a carryover from decades-old approaches to hiring, retention, advancement, compensation, and diversity.”

Hear hear! It’s high time that we reimagined the practice of law by taking full advantage of the many benefits offered by technology. Is your law firm ready for the “new normal”? If not, what are you waiting for? There’s no better time than now to prepare for the future of law practice by laying the technological building blocks for success in the post-pandemic world.

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.


It’s lawyer well-being week, so make sure to take care of yourself

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

*****

It’s not easy being a lawyer. Even though it’s a fulfilling profession, practicing law can be also be stressful. That’s why the National Task Force on Lawyer Well-Being established Lawyer Well-Being Week, and the goal is to ensure that lawyers focus on wellness and take steps to reduce their stress levels. This year it’s scheduled for May 3rd to the 7th and we happen to be in the midst of it as I write this article.

Unfortunately, according to the results of a recently released report from the ABA, many lawyers rarely take are of themselves as well as they should. The most recent edition of the report, “The ABA Profile of the Profession” was released last year and is full of lots of statistics that show just how stressed out lawyers can be.

The data in this Report is particularly relevant given the negative impact that COVID-19 has had on mental health. The difficulties encountered when working from home combined with the effects of social distancing have amplified the pressures that are unique to lawyering. And the resulting elevated stress levels often have disastrous effects.

For example, according to the Report, lawyers are susceptible to higher rates of depression, addiction, and suicide compared to the general population. The data from the Report shows that 21% of lawyers qualify as problem drinkers, which is more than three times the rate of the general population and nearly double the rate for other highly educated professionals. Also notable is that 28% of lawyers struggle with depression as well and 19% also have symptoms of anxiety. Given these statistics, it’s not surprising to learn that 11.5% have suicidal thoughts as well.

Lawyers with depression or addiction issues are also more likely to face disciplinary charges. This is because when lawyers suffer from the effects of addiction and/or mental illness, their struggle affects their ability to practice law effectively. That’s why the survey results showed 25% to 30% of lawyers facing disciplinary charges suffer from some type of addiction or mental illness.

Unfortunately, despite the high numbers of stressed-out lawyers, many law firms fail to provide attorneys with sufficient mental health resources and support. In fact, the results of the report indicate that only 16% of lawyers strongly agreed that their firms were very supportive of their mental health needs. Another 6% strongly agreed that their firms didn’t support them at all. And only 26% of lawyers surveyed reported that their firms provided information on 12-step programs or other mental health resources.

However, it’s important to note that legal employers aren’t entirely to blame for the lack of lawyer wellness. The failure of lawyers to prioritize their mental health and work-life balance are also contributing factors to their stress levels. For example, 38% of lawyers surveyed indicated they often work long hours, and 9% admitted that they “never stop working.” A full quarter of lawyers surveyed reported that they failed to take adequate breaks during during their workday, and 32% felt pressure to refrain from taking vacation time.

The bottom line: the legal profession needs to change how it addresses mental health. And what better time to commit to improving wellness than on the tails of Lawyer Well-Being Week? Now is the perfect time for legal employers to resolve to take steps to change cutthroat law firm culture and provide support and resources for attorneys. Similarly, lawyers should proactively prioritize their mental health and work toward a higher level of wellness. 

If you’re not sure where to start, the Monroe County Bar Association offers a number of different wellness resources, including several confidential programs to help attorneys in need. For example, there’s the Lawyers Concerned for Lawyers Committee, which provides a safe environment for legal or judicial professionals suffering from alcohol or drug addiction and for family members concerned about their loved ones. There’s also a stress & anxiety virtual support group that meets monthly on the first Tuesday of every month at  5 p.m. Confidential counseling is also available Through the Tree of Hope. Finally, the incoming MCBA president, attorney Bradley Kammholz, will be focusing on relationships and wellness during his tenure, so there will undoubtedly be more wellness opportunities in the year to come.

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: Secure Communication, Post-Pandemic Law Firms, Practice Management 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 published from April:


Top gadgets for lawyers working from a home office

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

*****

Top Gadgets for Lawyers Working From a Home Office

It’s been more than a year since the start of the pandemic, and what a year it’s been! The good news is that as we head into the spring, the light is finally visible at the end of the tunnel as vaccination rates increase. As a result, sometime in the near future we may finally be able to head back to our offices on a full or part-time basis.

Of course, we’ll be returning to the offices in what will be a “new normal.” While we don’t know what that will look like, one thing is for sure: it will almost certainly include more remote work. This is because lawyers now know remote work is possible and have more trust and familiarity with the cloud computing technologies that support it. One way or another, working from home will undoubtedly be commonplace on the other side of the pandemic.

For that reason, the New York State Bar Association recently held a CLE that focused entirely on gadgets for the home office, and I was fortunate enough to be one of the panelists. During that presentation I shared a few of my favorite remote working gadgets. Since many of us continue to work remotely during this stage of the pandemic and will continue to do so at an increased rate even after the pandemic ends, I decided it would be worthwhile to share some of the gadgets I discussed in that  presentation.

First, you should definitely invest in a Wi-Fi mesh router. I recommend either Amazon’s Eero mesh router or Google’s version. These routers are perfect for the home office because the mesh network, which is made up of individual Wi-Fi points that “talk” to one another, has an extensive reach. Setup is quick and simple, and you can control the router and change its settings using your smartphone.

Next, you’ll need a good portable laptop stand - or two. My favorite all-around stand is the Aidata LHA-3 LAPstand Aluminum Portable Laptop Stand. This is a fairly lightweight laptop stand and weighs 1.8 pounds. It has three different settings, so you have options when it comes to the placement and angle of your laptop. It folds flat for easy storage and fits right into your laptop bag when traveling. It costs $29.99 on Amazon.

Another option to consider is the Moft “invisible” laptop stand. I prefer the version that attaches to the bottom of your laptop via an adhesive backing, but it’s also available in a standalone version as well. This stand weighs only 3 ounces, and when not in use it folds nearly flush and lays flat at 1/9 of an inch. It can be folded into two different height settings, and costs $24.99.

I also recommend that you consider investing in a standalone touchpad instead of a mouse. I prefer the Apple Magic Trackpad 2, but there are also many different PC-compatible touchpads available at Amazon and elsewhere. The reason I prefer a touchpad over a mouse is because it offers a more ergonomic way to interact with your computer’s interface, and ultimately puts much less stress on your hand and wrist. An added benefit is that because it’s flat and thin, it’s much easier to transport whether for travel purposes or otherwise.

Another gadget to purchase for ergonomic reasons is portable keyboard. Typing using your laptop’s keypad can cause stress to your hand after a while;  that’s where a wireless keyboard comes in. I use Apple’s Magic Wireless Keyboard since it’s a full-size keyboard that is lightweight and portable. No matter what brand you buy, a wireless keyboard is a must-have for remote-working lawyers - especially if you plan to travel a lot once the pandemic is over.

I would also suggest you invest in a pair of wireless earbuds. I prefer Apple AirPods, but there are plenty of other brands available that work well, too. I guarantee that once you use wireless earbuds and are able to engage in unencumbered, hands-free phone conversations, you won’t be able to recall how you got by without them. Trust me, they’re well worth the price you’ll pay.

Next, consider adding a little light to your workspace with a desk lamp like the multi-function TaoTronics LED lamp. This adjustable desk light has a built-in Qi wireless charger for your devices, along with a USB port. It’s also dimmable with fully customizable color and brightness settings, and includes a timer along with memory functionality. It can be yours for $59.99 at Amazon.

Finally, but not least, consider investing in a portable charging station. I own the udoq Multi-Device Charging Station, but there are plenty of other choices available. A charging station is a great gadget to have in your home office, since it provides a convenient and orderly way to keep your devices charged. Wires are typically hidden behind the device, and you simply dock your mobile devices when you walk in the door and charge them as you work.

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.


Tips for Managing Remote Employees

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

*****

Tips for Managing Remote Employees

The shift to remote work was an abrupt and unexpected change for most businesses, including law firms. For that reason, it didn’t always go smoothly. However, over time, most legal employers were eventually able to work through the challenges and put technology and work processes in place that allowed their workforce to get work done efficiently regardless of where it was occurring.

This is good news for law firms with remote work technologies and systems in place, since the pandemic’s course continues to be unpredictable. As a result, full-time remote work may continue to be with us for some time. Forward thinking law firm leaders should, therefore, take advantage of this opportunity to fine tune their management skills for both in-office or remote teams.

Because law firm leaders are traditionally accustomed to overseeing in-office employees, new approaches may be needed when managing a remote workforce. Notably, even when the pandemic ends, there will likely be more employees working remotely. Fortunately, many management techniques apply equally well to both remote and in-office teams. With that in mind, what follows are tips to help law firm leaders manage their teams effectively regardless of where team members are located.

First and foremost, make sure that your law firm is has remote working tools in place that are efficient and easy-to-use. Otherwise, your team won’t be able to get work done efficiently. Your team should be using software that includes all of the features needed to simplify and streamline the virtual practice of law, including e-signature tools, online intake forms, internal chat functionality, and videoconferencing capabilities. It’s also important to ensure that your team has been sufficiently trained to use your firm’s remote working tools and are leveraging that technology to its fullest potential.

Next, take steps to improve virtual meetings. Zoom fatigue is a real issue; as we all know, staring at a screen all day can take its toll. For that reason, encourage employees to: 1) Take screen breaks, 2) Try to intersperse online meetings with other types of work, to the extent that it’s possible, 3) Avoid multitasking and focus on one task at a time, 4) Consider keeping only one browser tab open during meetings to encourage better focus, and 5) Find alternate ways to connect that don’t involve video conferences.

Also of import whether you’re managing an in-person or remote workforce is to acknowledge that firm leaders set the tenor for their teams and for the firm overall. Fostering a sense of community is key even when your team is dispersed and working from home. The tone of communications and the messages sent to employees, both literal and figurative, directly affect the job satisfaction and overall happiness of your firm’s workforce.

Ideas for ways to improve communication and community include: 1) Schedule virtual water-cooler hours, 2) Focus on wellness by encouraging your firm’s workforce to prioritize self care, 3) Encourage your team members to take regular breaks throughout the workday, and 4) Model work-life balance by suggesting that employees put their work computer away at the end of the day in order to create a sense of space between work and recreation.

Finally, here are some additional ideas to consider implementing as a law firm leader in order to keep your team motivated and productive. Create a positive work environment for your team members by: 1) Showing appreciation and regularly providing positive reinforcement, 2) Regularly checking in to see if team members are comfortable with their pace, assignments, and workload , 3) Creating a pleasant work atmosphere, and 4) Treating them as equals and never talking down to them.

The bottom line: Make your employees’ happiness a priority. Listen to their concerns, understand their needs, and take steps today to ensure that they feel appreciated and respected. If you take my advice and implement these tips, your team will be happy and productive regardless of where they happen to be working, and your efforts will undoubtedly pay off in the log run!

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.


A Virtually Perfect MCBA Legal Conference

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

*****

A Virtually Perfect MCBA Legal Conference

More than a year has passed since the start of the pandemic and life has yet to return to any semblance of normal. Social distancing and mask requirements are still in place and interacting in person inside for lengthy amounts of time is inadvisable. That means that when it comes to legal conferences, virtual conferences are all we’ve got for now, for better or for worse.

Unfortunately, most remote conferences are boring. The reality is that virtual conferences fall flat and fail to replicate a feeling of true interaction and engagement. Instead, the experience typically feels very one dimensional, something that is further compounded by the fact that people are simply tired of videoconferencing day in and day out. Now that we’re more than a year into the pandemic, the traditional virtual conference simply feels like an extension of remote-working rather than a fun break from it.

The good news is that there’s a better option: avatar-based conferences. When you interact in this type of virtual environment, you’re able to become fully immersed in the experience. Avatar-based conferences are the next best thing to attending a conference in person because you can walk around the online campus, speak to people (using your computer’s microphone), interact in groups, meet up with people at different locations throughout the campus, go on boat rides, and much more.

Of course, if you’re not a gamer, I can imagine that as you’re reading this you’re a bit hesitant about the idea. Rest assured, you’re not the only one. When I pitched my idea to hold an avatar-based conference to the Monroe County Bar Association’s Solo and Small Firm Conference planning committee, they were initially unsure about it and had a lot of questions. But eventually, with the support of the Bar Association’s forward-thinking Executive Director, Kevin Ryan, they agreed to give it a try and the conference occurred last week.

Needless to say, I think they made an incredibly smart decision by green lighting this idea. Because let’s face it: lawyers are suffering from Zoom fatigue,. While it would be ideal to get together in person, we can’t. And as we learned last week, an avatar-based conference in virtual environment is the next best thing.

So without further ado, let’s talk about the conference. It was held on a virtual campus leased from EDRM (Electronic Discovery and Reference Model), and was held over two days during the afternoons on April 8th and 9th.

The first session focused on getting everyone’s avatars set up. During that 30-minute session we ironed out a few technical issues for some of the participants, and then before we knew it, we were on our way!

After everyone had an opportunity to explore the virtual campus for a bit, we convened in the main auditorium for the Keynote from Heidi Alexander, Director of the Massachusetts SJC Standing Committee on Lawyer Well-Being. She spoke about lessons learned during the pandemic and the future of law practice. Then, after a breakout networking session, we re-convened in the main auditorium and Jared Correia, the founder and CEO of Red Cave Law Firm Consulting, spoke about the impact of the pandemic on the practice of law and how lawyers could use their learnings to thrive in the “new normal.”

The last event of the day was a virtual wine tasting on the beach. We tasted three different wines from the award-winning Finger Lakes winery, Silver Thread Vineyard. The in-depth tasting was led by Shannon Brock, the winery owner and general manager, and everyone learned a lot about the wines we sampled, along with overall the Finger Lakes region wine-making experience.

The next afternoon we reconvened for Day 2 of the conference. Throughout the day there were two plenaries and two different breakout networking sessions. Attendees also had opportunities to visit the vendor hall, take breaks on the beach, go on virtual boat rides, visit the soccer field, travel to the top of the lighthouse, and explore other locations within the virtual campus.

And then, before we knew it, after another full day of networking and learning, the conference drew to a close. We said our goodbyes, hung up our virtual avatars, shut off our computers, and headed off into the weekend.

After speaking with many of the attendees, I’m happy to report that a fun time was had by all! We’d collectively tried something new and different by throwing caution to the wind and diving avatar-first into this conference; for that I couldn’t be more proud.

I left this experience feeling thankful for many things. First, I’m grateful for the cutting-edge technologies that have allowed us to remotely interact (in avatar-form no less!) and work throughout the course of the pandemic. Second, I’m appreciative of my trail-blazing colleagues who were willing to cast doubt aside and give this crazy idea a shot. And last but not least, I’m reminded of how incredibly fortunate I am to be a part of this tight knit, collegial legal community where a pioneering and innovative spirit is alive and well. 

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: Law Practice Management Software, Litigation Fact Management Software, ABA TECHSHOW, 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 published from March:


New Jersey on the ethics of ‘reply all’ emails

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

*****

New Jersey On The Ethics Of “Reply All” Emails

Lawyers have communicated with clients via electronic means for more than two decades. For most of that time period, email has been the preferred and primary method of electronic communication. However, over time, email - which is inherently unsecure and is no different than sending a postcard written in pencil through the post office - has begun to fall out of favor as technology has improved.

For that reason, in recent years, more secure communication methods are increasingly being recommended by ethics committees and cybersecurity security experts. More secure options include encrypted email and the encrypted client communication portals built into law practice management software, for the reasons set forth in ABA Opinion 477, where the ethics committee concluded that due to “cyber-threats and (the fact that) the proliferation of electronic communications devices have changed the landscape…it is not always reasonable to rely on the use of unencrypted email.”

Despite this recommendation, many lawyers continue to use unencrypted email for confidential client communications, and doing so can sometimes compromise confidentiality. For example, the New Jersey Supreme Court Advisory Committee on Professional Ethics recently addressed one of the many ethical risks posed by email: the use of the “reply all” functionality.

At issue in NJ Ethics Opinion 739, which was handed down in March, was whether ethical issues were presented when lawyers used the “reply all” function to respond to a group email that had been sent by a lawyer who had cc:d his client in on the original email. Specifically the inquiring lawyer queried whether lawyers who used the “reply all” function in that scenario were unethically communicating with his client without consent, thus compromising the confidentiality and sanctity of the attorney-client relationship.

At the outset, the Committee noted that the applicable Rule of Professional Conduct was Rule 4.2, which  provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter ….”

Next, the Committee wisely considered analogous offline conduct prior to reaching its determination. Specifically the Committee explained that when lawyers receive a letter where opposing counsel’s client is copied, it would be unethical for the recipient lawyer to respond by writing a letter addressed to both the lawyer and the client. In comparison, if a lawyer placed a phone call to another attorney and the client was on the line as well, the lawyer who initiated the call would have been deemed to impliedly consent “to opposing counsel speaking on the call and thereby communicating both with the opposing lawyer and that lawyer's client.”

According to the Committee, because email is a decidedly informal method of communicating, when clients are cc:d in on a group email, it is assumed that all replies to the email are directed  toward the attorneys in the group and not the client.

The Committee acknowledged that some other jurisdictions have concluded otherwise, and have found that implied consent to client communications does not occur in this scenario. However, the Committee specifically rejected that determination since “these opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.”

Therefore, the Committee concluded that implied consent does, in fact, in this situation and that “(l)awyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response. ‘Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha' moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer's client.”

I wholeheartedly agree with the Committee’s conclusion, and particularly appreciate that it reached its determination on this issue by considering how Rule 4.2 is applied to analogous forms of offline communication. Because, as I always say, the online is simply an extension of the online. New rules are rarely required for online conduct. Instead, existing rules and principles can be applied to online conduct thus providing more relevant and concrete guidance that will withstand the test of time.

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.