The importance of technology competence when communicating electronically

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

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The importance of technology competence when communicating electronically

I’m sure that by now you’ve already seen the now infamous cat filter court hearing video. If not, Google it and watch it. I’ll wait.

Now that you’re back, let’s talk about how you can avoid replicating that unfortunate predicament. The short answer? By maintaining technology competence when using electronic methods to communicate with clients and colleagues.

It’s always been important to ensure that you understand how to use the technologies that you use regularly in your practice. But now that many of us are working - and appearing in court - remotely, it’s imperative that lawyers are technologically competent when communicating electronically.

If you’re not sure what your obligations are when it comes to electronic communications or aren’t sure where to start, you’re in luck. The Florida Bar issued an updated guide last year that’s right on point: “Best Practices for Professional Electronic Communication.” 

This 25-page ebook offers a comprehensive overview of the ins and outs of different types of electronic communication and the issues lawyers need to understand when using said technologies. The types of electronic communications covered include texting, email, social media, telephones and cellphones, laptops, and court appearances via videoconference.

I recommend that you read the guide in its entirety since it contains at ton of useful information about securely and ethically communicating electronically. In the meantime, here are some highlights to get you started.

For starters, let’s take a look at the technology considerations you need to be aware of when texting. First and foremost, please understand that like the internet (see last week’s column), texting is forever. As the authors explain, “text messages can be saved on a cell phone within the actual conversation or on a smartphone by simply taking a screenshot of the conversation. These captured text messages can be forwarded to other recipients or exported from the device.” So please, text with care.

Other useful tips to keep in mind when texting include the following: 1) understand that text threads can be altered, and 2) when texting with or about clients, familiarize yourself with the backup policies, retrieval methods, metadata, etc. that texting service providers and devices employ to allow the retention and destruction of sent and received text messages.

The advice relating to email was likewise instructive, and worth taking note of. First, the authors focused on email attachments and the importance of understanding and managing any metadata contained therein: “Attachments may contain metadata that could disclose unwanted information to the recipient (and may) contain malicious software code (so) use scanning software for both outbound and inbound emails.”

Another important factor that was emphasized was the need to preserve confidentiality when using email. The authors explained the risks of using unencrypted email when sharing confidential information: “(I)f you use email as form of confidential communication, you should know the risks and be familiar with the options of sending secure/encrypted messages (since) there is always a chance that your email may be intercepted. Many of these risks are mitigated if not entirely eradicated when using an encrypted email service.”

Because of those risks, the authors recommended that lawyers use secure client portals like the ones built into law practice management software in lieu of email: “Secure client portals are an emerging and safe alternative to email. There are many case and practice management systems that offer a client portal component. You should seriously consider this option as a method of communication for confidential information.”

And last but not least, let’s bring it full circle and take a look at some of their recommendations regarding virtual court proceedings. First and foremost, the authors emphasized the importance of technology competence, and explained that judges should “(a)llow a few minutes more than you normally would before the time to begin to ensure technology is working.” Similarly, another piece of advice was to “have technology staff on standby, readily available to handle any technology issues that may arise.”

Take that last tip to heart, dear readers, on the off chance that you, too, end up imprisoned behind an adorable filter at the start of a hearing. With a tech-savvy assistant nearby, you’ll be able to quickly address the issue and thus avoid being immortalized via an internet meme as a very cute, albeit distressed, cat.

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, Clubhouse, Remote Work Ethical Guidance & 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 January:


The internet is forever, so behave accordingly

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

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The Internet is Forever, So Behave Accordingly

My fellow lawyers: let's talk.

Now let me just say at the outset that I am absolutely thrilled to see all of you using technology, whether it's social media, video conferencing, or cloud computing. For more than a decade now I've been encouraging lawyers to embrace internet-based tools and educate themselves about the possibilities and many benefits of interacting, engaging, and conducting business online.

As you can imagine, it’s been a long, and sometimes frustrating journey. Before the pandemic hit, the legal profession was finally beginning to use emerging technologies, but adoption was occurring at a slow, but steady pace. And then, COVID-19 arrived, and everything changed.

One of the many effects of COVID-19 was that the mandatory quarantines required lawyers to rapidly shift to remote work. As a result lawyers began to use technology at rates never before seen. Lawyers implemented cloud-based software in order to get work done remotely. Similarly, methods of communication shifted rapidly because of social distancing requirements. Lawyers began to interact on social media more than ever before, and video conferencing became the norm.

These rapid changes were a welcome departure from the slow and measured rates of technology adoption that preceded them. However with that rapid technology usage came some very notable bumps in the road. It is these hiccups that I’d like to address in today’s column.

First and foremost I beseech you, my fellow lawyers, to understand that the internet is forever. Let me repeat that: the internet is forever.

Now I know I've told you this before. I’ve repeatedly shared this proposition with you in many different columns, and I know other legal technology professionals have done the same. But based on the barrage of news headlines about the many online missteps by lawyers that have occurred since the onset of the pandemic, I'm not sure the message has gotten through.

So let me be clear: when you are using internet-based technology such as social media or video conferencing software to interact with others please understand that anything you do and say can be recorded and shared across the internet for everyone to see. Screenshots can be taken. Video conference calls can be recorded. Everything you do and say online can be disseminated rapidly across social media, and once this happens there's no going back.

Things that you say and do online can come back to haunt you. You may experience public humiliation. Your actions could result in disciplinary action. You might even face criminal prosecution.

Lawyers have encountered all of these consequences in recent months. Attorneys involved in the riots at the Capital who shared their participation online now face criminal indictments. Lawyers who engaged in unprofessional conduct during Zoom meetings have had their actions shared far and wide. Lawyers who have, in the heat of the moment, posted threats or other inappropriate comments have placed their licenses to practice law at risk.

If only all of these lawyers had paused for mere seconds and thought about their actions prior to engaging in them, much of this could've been avoided.

So, my fellow lawyers, here are a few examples of what not to do, ripped from the headlines. If you're about to riot on the Capital or engage in other potentially criminal conduct, perhaps think before you engage in those actions, and if you decide to go move forward, at the very least avoid posting about them on social media. Or, if you start to get bored during a Zoom meeting, understand that your actions are visible to others and are likely being recorded and thus you should resist the urge to entertain yourself in an unseemly way, either alone or with a partner. And finally, refrain from publicly providing an online contact who is feuding with her ex-husband with advice on how to successfully murder said ex in a way that would allow the claim of self-defense to be asserted.

When you really think about it, it's just common sense. The Internet is forever, so behave accordingly. It’s really not that difficult, and I know you can do it. So what do you say? Will you take my advice and stop acting like idiots online? Not only will you avoid a lot of hassles and unpleasant consequences, we’ll all be better off for it. As far as I’m concerned, it’s a win-win all around!

 

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.


NYSBA provides ransomware guidance for lawyers

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

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NYSBA Provides Ransomeware Guidance For Lawyers

The pandemic has impacted so many different aspects of our lives, from where and how we work to how we communicate and interact with loved ones. The work-from-home requirements necessitated by COVID-19 have been one of the most noticeable effects of the pandemic. This increase in working from home has also led to another notable trend: an escalation in the number of cyberattacks occurring due to the vulnerabilities exposed by the rapid and unexpected transition to remote work by so many businesses - including law firms - across the country.

This development was likely the impetus for the recent release of a cybersecurity alert by the New York State Bar Association’s Technology and Legal Profession Committee relating to ransomeware. This very timely resource provides a wealth of advice and guidance for lawyers seeking to protect their firms’ data from attacks by nefarious actors.

In the report, the authors first tackle the concept of ransomware. They provide the following explanation along with examples to help readers understand what ransomware is and how bad actors use it to attempt to obtain information from law firms:

Ransomware is a form of malicious software (malware) that targets critical data and systems for the purpose of extortion.
Ransomware often encrypts data or programs to extort ransom payments from victims in exchange for decrypting the information and restoring victims’ access to their systems or data. In many instances, the attacker threatens to publish sensitive information that has been seized, further hurting the victim, or impacting the business’ reputation.

As explained in the alert, the ransom demand typically consists of a demand for cryptocurrency in exchange for the data being held hostage. However, of note is that the Committee cautions that the provision of a payment does not necessarily guarantee that the data will necessarily be returned.
Because there is no way to ensure with certainty that your law firm will be able to obtain the return of its data from the bad actors, it is imperative that steps be taken to protect the data that remains on the firm’s systems. To that end, the Committee provides a step-by-step roadmap that includes recommendations to: 1) immediately isolate affected systems and avoid deleting any data, 2) isolate and/or power off uncorrupted devices, 3) after ensuring that existing data backups are free of malware, secure them and take them offline, 4) report the attack to https://www.ic3.gov/ and contact the local field offices of the FBI and U.S. Secret Service, 5) collect and secure any portions of existing ransomed data, 6) after taking the system offline, change online account and network passwords, 7) change systems passwords once malware has been removed, 8) disable maintenance tasks, and 9) implement incident response and business continuity plans.

The Committee also provides useful best practices guidance for law firms seeking to proactively protect their firms from future ransomeware attacks. The best practice tips are to: 1) implement an awareness and training program, 2) use Multi-Factor Authentication, 3) use long, complex passwords and do not reuse passwords for multiple accounts, 4) change default passwords, 5) enforce account lockouts after a specified number of login attempts, 6) configure access controls—including file, directory, and network share permissions—to limit access to only those who must have it, 7) restrict user permissions to install and run software applications, 8) enable strong spam filters to prevent phishing emails from reaching the end users. 9) set anti-virus and anti-malware programs to conduct regular scans automatically, 10) regularly patch systems, software, and firmware, 11) configure firewalls to block access to known malicious IP addresses, and 12) implement a Clean Desk Policy.

Note that the above constitutes highlights from this cybersecurity alert. For that reason, it’s important to read the alert in its entirety for a complete overview of the risks of ransomware, the precautionary steps you can take to protect your firm from being affected by it, and how to respond to an attack without making the situation any worse than it already is.

In closing, I urge you to give this document a thorough read and then implement the recommendations contained therein. Trust me, you won’t regret it. You’ve got nothing to lose by educating yourself about ransomware risks - and everything to gain!

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.


Lawyers: Take a look at these two social media platforms

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

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Lawyers: Take a Look at These Two New Social Media Platforms

As you plan for a successful 2021 for your law firm, don’t forget to consider how you plan to use social media to forward your firm’s marketing and business development goals in the coming year. Importantly, you may want to think about whether you should broaden your presence to additional social media sites.

You might be wondering why you should bother interacting on new platforms. I would suggest that it’s well worth it for forward-thinking lawyers to invest time into establishing a presence on less populated platforms early on. This is because it gives you the opportunity to make a name for yourself and your firm before everyone else jumps on the bandwagon and competition for attention increases.

There are two social media apps that have caught my eye in recent months -  and keep in mind that this is the first time in years that I’ve been excited about the potential of new social media sites for lawyers. These two platforms are Clubhouse (joinclubhouse.com) and TikTok (tiktok.com). Because these two sites are quickly gaining momentum, there’s no better time than now to make your mark.

First, there’s Clubhouse. If you’re not already familiar with it, Clubhouse is an audio chat platform that is available as an iOS app and is invite only for now. It consists of user-created drop-in audio chat rooms. You can form your own room or join rooms created by others. These chat rooms can be created spontaneously or scheduled ahead of time. Topics run the gamut, and there’s something for everyone no matter what your areas of interest.

The reason Clubhouse is such a good fit for lawyers is that it’s a great way to showcase your expertise, connect with professional colleagues who might be potential referral sources, and generate exposure for your law firm. It also offers a format that is comfortable and familiar to most lawyers. For many lawyers, sharing information verbally is a much better fit than communicating in writing via a blog or by video on YouTube. Audio chat is less formal than writing, and there’s no pressure to create a professionally produced video - or to be perfectly groomed and dressed every time you interact. Instead it’s a decidedly more informal format that is perfect for lawyers seeking to showcase their expertise and share their knowledge.

Finally, the flexibility and convenience offered by Clubhouse can’t be beat. You can hop on the app whenever you have downtime throughout the work day, or during lunch or after hours. No matter when you decide to interact, it’s a great way to make the most of a short break.

Another app that shows promise for lawyers is TikTok. This mobile app makes it easy for users to view – and create – short, informal videos that are one minute or less. There’s lots of educational content on TikTok which is why it’s such a good fit for lawyers looking to connect with potential clients by providing informational videos. There are already many lawyers using the app for this purpose, so seek them out for some ideas to help get you started. Importantly, if you go this route and decide to provide educational content, make sure you conform to ethics regulations about engaging online, such as ensuring that you provide legal information, not advice.

The bottom line: One of these social media platforms, or even both, may very well be worth your time in 2021. You’ll have to carefully consider your goals and your comfort level with the different formats. Take each one for a test drive for a week or so and then make a determination as to whether either one might be a good use of your time or provide value.

As you might expect, I’m active on both platforms, so make sure to connect with me once you join. Hope to “see” you on one of these sites soon!

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 offers ethical guidance on responding to negative online reviews

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

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ABA Offers Ethical Guidance on Responding to Negative Online Reviews


Now that we live in a digital world, online reviews are becoming increasingly useful tools for consumers. Using these reviews, consumers are able to make more informed decisions when making purchasing decisions about products or services.

Online reviews are great for consumers, but for business owners, navigating the world of online reviews can be tricky since responses to reviews, both negative and positive, are decidedly public. This confounding newfound reality can present problems for lawyers seeking to respond to negative online reviews since doing so can sometimes trigger ethics rules regarding confidential information.

That’s where Formal Opinion 496, which was released last week by the American Bar Association (ABA), comes in. (Online: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-496.pdf). In it, the ABA provides guidance and best practices for lawyers when it comes to ethically responding to negative online reviews.

At the outset, the Committee explained that because of the duty of confidentiality, “lawyers cannot blog about information relating to clients’ representation without client consent, even if they only use information in the public record, because that information is still confidential.”

Next, the Committee addressed the three exceptions to this prohibition, concluding that none of them applied when lawyers seek to respond to negative online reviews. First, the Committee determined that two of the exceptions were clearly inapplicable to the issue at hand. First, online criticism was not a situation that constituted a “proceeding.” Second, online criticism was not an occasion where it was necessary for lawyers to defend a criminal charge or civil claim against them relating to conduct involving the client.

Upon rejecting the applicability of the first two exceptions, the Committee turned to the third exception: where there exists a “controversy between a lawyer and client.” After analyzing opinions handed down from other jurisdictions, the Committee ascertained that the third exception was likewise inapplicable to the issue at hand: “The Committee concludes that, alone, a negative online review, because of its informal nature, is not a ‘controversy between the lawyer and the client’ within the meaning of Rule 1.6(b)(5), and therefore does not allow disclosure of confidential information relating to a client’s matter.”

After reaching the conclusion that lawyers are precluded from disclosing confidential information when responding online to negative reviews, the Committee provided some best practices to assist lawyers who are faced with negative online reviews.

First, the Committee suggested that lawyers reach out to the host of the website or search engine where the negative review appeared and request that the review be removed. The Committee cautioned that it’s important to avoid revealing any confidential information when doing so, and opined that lawyers may choose to say that “the post is not accurate or that the lawyer has not represented the poster if that is the case.”

The Committee also advised that, from a practical standpoint, lawyers should carefully consider whether to respond at all. The Committee explained that "the more activity any individual post receives, the higher the post appears in search results online… (and) no response may cause the post to move down in search result rankings and eventually disappear into the ether.”

If, however, you choose to respond, the Committee offered a number of different permissible options. First, the Committee suggested that lawyers attempt to move the conversation offline with a response such as, “Please contact me by telephone so that we can discuss your concerns.” But the Committee cautioned that if you follow that route, you will need to ensure that you follow up with the client since doing “nothing to attempt to assuage the person’s concerns risks additional negative posts.”

Another option offered by the Committee is to respond online by simply advising that ethical rules preclude a response. Here’s an example of this type of response offered by the Committee: “Professional obligations do not allow me to respond as I would wish.”

Finally, the Committee cautioned that if you do ultimately choose to respond online, you must avoid disclosing “information that relates to a client matter or that could reasonably lead to the discovery of confidential information by others.”

Whatever choice you make, tread lightly, and never forget that the internet is forever. Evan if you change your mind and delete a response or request that it be removed, its memory (and possibly a screenshot) will live on. The best course of action is to err on the side of caution and think before you post. As I always say: better safe than sorry!

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: Top Legaltech Stories of 2020, Virtual Conferences With Avatars, and Remote Working 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 published from December:


ABA Ethics Opinion on Working Remotely

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

*****

ABA Ethics Opinion on Working Remotely


In 2020, the pandemic changed just about everything. One of the biggest areas impacted was the way that work was performed. Out of necessity, it was the year of working remotely for businesses across the country. And with increasing COVID-19 surges across the country and vaccine availability for the general population at least 6 months away, working remotely will continue to be commonplace for months to come.

For lawyers, working from home presents unique ethical issues due to the confidential nature of the information handled by law offices. Fortunately, if you’re a lawyer working remotely, the American Bar Association handed down an opinion just last week that provides some helpful ethical guidance.

In Formal Opinion 495, the Standing Committee on Ethics and Professional Responsibility addressed one of the many issues presented when lawyers engage in remote work: whether it’s permissible for lawyers to handle cases in the jurisdiction(s) in which they are licensed while working from a physical location in which they are not licensed.

The Committee began by acknowledging the reality of the situation that lawyers find themselves in as a result of the pandemic: “Lawyers, like others, have more frequently been working remotely: practicing law mainly through electronic means. Technology has made it possible for a lawyer to practice virtually in a jurisdiction where the lawyer is licensed, providing legal services to residents of that jurisdiction, even though the lawyer may be physically located in a different jurisdiction where the lawyer is not licensed.”

Before addressing the issues presented, the Committee clarified that its opinion did not apply in situations where “a particular jurisdiction has made the determination, by statute, rule, case law, or opinion, that a lawyer working remotely while physically located in that jurisdiction constitutes the unauthorized or unlicensed practice of law.”

Next the Committee turned to the jurisdictions that had no prohibitions of that nature in place, explaining that ABA Model Rule 5.5(a) prevents lawyers from engaging in the unauthorized practice of law in jurisdictions in which they are not licensed. According to the Committee, the prohibition is not absolute, and does not apply in situations where lawyers are temporarily practicing law from locations in which they are not licensed as long as they avoid the outward appearance of “establishing” a local office: “A local office is not ‘established’ within the meaning of the rule by the lawyer working in the local jurisdiction if the lawyer does not hold out to the public an address in the local jurisdiction as an office and a local jurisdiction address does not appear on letterhead, business cards, websites, or other indicia of a lawyer’s presence.”

As the Committee explained, lawyers working from home due to COVID-19 restrictions in a location in which they are not authorized to practice is an example of a temporary situation that usually does not trigger the prohibitions of Model Rule 5.5.: “(I)n a pandemic that results in safety measures—regardless of whether the safety measures are governmentally mandated—that include physical closure or limited use of law offices, lawyers may temporarily be working remotely. How long that temporary period lasts could vary significantly based on the need to address the pandemic.”

The Committee emphasized that the rationale behind Model Rule 5.5 is to protect legal consumers from unlicensed or unqualified attorneys, and that “purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.”

So those of you who are practicing law from a location in which you are not licensed and plan to continue doing so until the pandemic is behind us can breathe a sigh of relief. The ABA has given this practice the green light. So rest easy knowing that your actions are ethically permissible as you head into the holiday season.

And speaking of the holidays, do me a favor: make sure to take some time off over the next few weeks, regardless of where you’re working. Rest, relax, and enjoy time with your loved ones. It’s been a long, challenging year. You deserve it. We all do. Happy Holidays!

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.


2020 Holiday Gift Guide for Lawyers

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

*****

2020 Holiday Gift Guide for Lawyers

2020 has been quite the year, and it’s been anything but easy. No doubt, you’re ready for this unprecedented year to end so that we can look forward to a new, hopefully much less eventful 2021. In the meantime, the holidays are upon us and you may still have presents to buy.

If so, you’re in luck! I’ve pulled together a last-minute holiday gift guide for lawyers, and I have no doubt that one of the gifts below is sure to be a good fit for the lawyer on your list. This list is drawn from products that I own and services that I use, all of which I highly recommend. It includes gift ideas that will help lawyers who are working remotely find joy, productivity, and peace in their homes. Hopefully one or two will be a good fit for your own wish list or for the lawyer in your life.

First up, Amazon subscription boxes. You may not be aware that Amazon offers access to hundreds of subscription box services. These are a great way to give someone a gift that they can look forward to each month. Amazon has over 400 gift box services available in countless categories, so no matter what you’re looking for, there’s bound to be one that’s a good fit.

A meditation app is another good subscription option. Two of the most popular meditation apps that you might want to consider are Calm and Headspace. Both offer thousands of different meditations such as anxiety-reducing meditations or meditations that help you fall sleep. There are also meditation series offered on both apps that focus on a variety of goals including encouraging gratitude, increasing self esteem, or improving concentration. You can purchase annual gift subscriptions for either app for a little over $50.

If you don’t already have a pair of Apple AirPods, I highly recommend them. I’m a huge fan of mine. They’re great for taking calls and walking around your office unencumbered. They’re also perfect for using during Zoom meetings - something we’re all doing a lot these days. AirPods aren’t cheap, but they’re well worth the price. They start at $199 for a pair with a wireless charging case, or you can choose to go with a wired charging case for $159.

Last but not least, there’s the Wine.com StewardShip program. For $49 a year, members of this program get free shipping for the entire year. So wine and other spirits can be delivered right to your door, at no additional cost to you. I really like Wine.com, since it’s a great site for exploring new wines and spirits, and they offer free recorded wine tastings, wine tasting sets, free online wine and spirit guides, and much more. With the pandemic surging and lockdowns looming, it’s just one more way to get a little holiday cheer delivered right to your door without leaving your house.

So those are a few of my top gift recommendations for the 2020 holiday season. I hope some of these last-minute gift ideas are a good fit for the lawyer on your list. And, now that you have plenty of ideas to choose from, what are you waiting for? Start shopping today and your holiday gift shopping will be done before you know 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.


NYC Bar On the Ethics Lawyers Appearing in Court During the Pandemic

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

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NYC Bar On the Ethics Lawyers Appearing in Court During the Pandemic

In October, I wrote about an opinion issued by the New York State Bar that addressed the ethical issues presented when a lawyer sought to withdraw as counsel due to health-related concerns regarding in-person court appearances during the pandemic. As I reported in my article, the New York State Bar Association’s Committee on Professional Ethics concluded that an attorney may indeed withdraw from representation due to COVID19-related concerns if the attorney obtains permission from the court.

Now, less than two months later, another New York ethics committee has weighed in on a similar issue. In Formal Opinion 2020-5, the Professional Ethics Committee of the New York City Bar Association considered the following question: “Whether a lawyer’s health concerns regarding appearing in court in person during a pandemic can create a conflict of interest requiring withdrawal from the representation.”

At the outset, the Committee noted that the existence of the pandemic, in and of itself, provides insufficient grounds to permit an attorney to withdraw from representation. The committee explained that there are often options to appear virtually on behalf of a client and even when in-person appearances are mandated, courts are often able to “implement adequate health and safety protocols under which a reasonable lawyer would feel comfortable appearing in person.”

That being said, the Committee acknowledged that as a result of the severity of the pandemic, some lawyers could have a reasonable fear for their health and safety, which could in turn create a conflict of interest that would compromise their ability to effectively represent their clients. The Committee explained that health concerns could cause attorneys to: 1) request unnecessary adjournments to the detriment of their clients , 2) refrain from filing motions in an effort to avoid an in-person court appearance, or 3) take other actions the case in order to move the case along that could have negative consequences for their clients.

The Committee noted that in many cases, either the safety precautions taken by courts or the virtual appearance options offered will be sufficient to assuage an attorney. However, according to the Committee “this must be evaluated on a case-by-case basis and will depend on the risks to the lawyer and the reasonably available options for continuing with the representation” and that in some cases “a lawyer who may suffer from preexisting health conditions or live in a household with others who are susceptible to infection could reasonably believe that the heightened fear of infection would affect the lawyer’s ability to competently and diligently represent the client.”

Should that be the case, then a legitimate conflict of interest may exist. According to the Committee, if that conflict is not otherwise waivable and legitimate health concerns make it “impossible for the lawyer to provide competent and diligent representation,” then the lawyer may withdraw as counsel. Of note is that while the Committee acknowledged that it reached a conclusion similar to that of the New York State Bar Association, it did so for different reasons: “(T)his Opinion analyzes whether a lawyer must withdraw from the representation based a conflict of interest whereas Opinion 1203 analyzes permissive withdrawal under Rule 1.16(c).” 

So if you’re a New York lawyer who is understandably concerned about in-person court appearances at a time when COVID-19 continues to surge across the state, you now have two different ethics opinions in your corner should you decide that withdrawal from representation is the best path forward. Notably, many courts have already canceled most in-court appearances, and other may soon follow, so this may be a moot issue. But in the event it’s not, you’ve now got two paths available to you that have received the ethical stamp of approval.

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: Remote Working, Virtual Conferences, and Cloud Computing

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 November:


Case shows why lawyers must encrypt e-communications

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

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Case shows why lawyers must encrypt e-communications

Whenever your firm’s employees work remotely during the pandemic (and beyond), electronic communications will increase out of necessity. If those communications aren’t encrypted, you run the risk of inadvertently disclosing confidential client data. That’s why it’s imperative that your firm takes steps to encrypt online communications if it isn’t already doing so. Whether you decide to encrypt emails on a case-by-case basis or use the secure online communications portals that are often built into law practice management software, one way or another, your firm needs to ensure that it’s protecting all confidential electronic communications.

Doing so will not only safeguard confidential information, it may also shield your firm from liability in the event that a cyber-scam that results in a loss to your client. Case in point: Otto v. Caltrow Law, PLLC, No. 19-0361. In this case, the Supreme Court of Appeals of West Virginia considered whether a law firm was liable for a cyber-scam that resulted in a $266,000 loss to its client when funds for a real estate transaction were mistakenly wired to scammers.

In this case, an unidentified scammer impersonated the Otto’s real estate agent in an email conversation and as a result, the Ottos, who were clients of the Caltrow firm, wired the scammer $266,069.22. This money was never recovered.

The Caltrow firm used encrypted email to communicate with the Otto’s realtor regarding wiring instructions, and never communicated directly with the Ottos. The realtor, the real estate broker, and the Ottos, however, subsequently discussed the wiring instructions via unencrypted email. It was that unencrypted email chain that the scammers hacked into. They then subsequently spoofed the real estate agent in emails sent to the Ottos regarding the purported new wiring instructions. As a result of those spoofed emails, the Ottos wired the money to the scammer’s bank account.

The Ottos subsequently filed suit against the real estate broker, the realtor, and the Caltrow firm in an attempt to  recover their losses. They later settled with the broker and realtor, and then amended their claims against the Caltrow firm and alleged that the firm breached duties owed to them as follows:

    1. Prior to wiring any funds, [Petitioners] should have been personally contacted by [Respondent], or, at a minimum, [Petitioners] should have been advised and alerted by [Respondent] to call her office and confirm the instructions.
    2. b) Although [Respondent] appeared to have used an encrypted email, [Respondent], knowing full well that wiring instructions were to be communicated via email, should have taken any precautions to determine if [the realtor's] . . . and the [Petitioners’] emails were encrypted and otherwise secured.
    3. c) [Respondent] should have informed the [Petitioners] as to the prevalence of wire fraud schemes, and that if an email seemed suspicious, they should take no action until they confirmed, by independent means, that the communication was legitimate.

The Court disagreed with their assertions. First, the Court determined that when the firm encrypted the email regarding the wire instructions, it exercised reasonable care by taking steps to protect that information: “The contents of that email were highly sensitive and Respondent reasonably expected the information to remain confidential by use of encryption technology. Indeed, Petitioners concede that Respondent was not responsible for the hack because they pled in their amended complaint that ‘the money was diverted when the hacker was able to intervene in email correspondences between' (the realtor) and Coldwell.”

Next the Court turned to the Otto’s assertion that the firm failed to warn them about the risks associated with potential phishing and spoofing email schemes. The Court likewise dismissed that claim, concluding that the plaintiffs failed to provide sufficient evidence to support their allegation that the firm breached the applicable standard of care owed to the plaintiffs under West Virginia law.

In other words, the firm’s use of encrypted email is what saved the day in this case and precluded liability. What steps does your firm take to ensure that confidential client data is sufficiently protected from prying eyes? Does your firm have secure communication protocols, such as online communication portals, in place? If not, what better time to implement them than now, as you plan for a successful 2021? Not only is it the ethical thing to do, it’s the smart thing to do -  so what are you waiting for?

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.


Can the pandemic provide an excuse for sanctionable conduct?

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

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As we enter our ninth month of the pandemic and COVID-19 numbers are surging across the country, lawyers and judges alike are bracing for newfound full or partial shutdowns. If and when the shutdowns occur, our court systems will undoubtedly slow down, creating a bottleneck effect, just like what happened in the spring. And when that occurs, litigators run the risk of losing track of, or access to, case-related court filings.

If this scenario should come to pass, and a lawyer’s access to court records is limited because of shelter-in-place orders, are sanctions appropriate if a lawyer inadvertently misstates the record on appeal due to the inaccessibility of that information? This very question was at issue in a recent case from the United States Court of Appeals for the Sixth Circuit, Saenz v. Kohl’s Department Stores, No. 20157. 

In this personal injury case, which arose from a slip and fall in a department store, the plaintiff appealed a summary judgment grant in favor of the defendant. On appeal, the crux the plaintiff’s argument was based on an interrogatory answer that was never signed nor included as part of the record on appeal.

After upholding the lower court’s grant of summary judgment, the Court of Appeals considered Kohl’s motion for sanctions against the plaintiff and her appellate counsel. The Court explained that, “Kohl’s has moved for sanctions, arguing that this appeal is frivolous because ‘Saenz’s entire appeal is premised on an interrogatory answer’ that 'is not part of the District Court’s record.’”

After declining to impose sanctions on the plaintiff since there was no evidence that she harbored an improper motive in bringing the appeal, the court then turned to the motion for sanctions against her appellate attorney. The Court explained that sanctions against counsel are appropriate where “an attorney has engaged in some sort of conduct that, from an objective standpoint, ‘falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party.’”

After reviewing the attorney’s conduct in the case, the Court acknowledged that he repeatedly referred to the unsigned interrogatories even after it was pointed out to him that they were never signed and weren’t part of the record on appeal, and that such conduct was “unprofessional and serious enough to meet the standard for imposing sanctions.”

Nevertheless, the Court declined to impose sanctions given the unprecedented effects of the pandemic-related stay-at-home orders. The Court determined that it would exercise its discretion “‘not to sanction’ counsel…No doubt, it was careless to quote the unsigned Interrogatory 9 and then appeal based on that error. But we appreciate that these are trying times…Michigan stay-at-home order due to COVID-19 was in effect at the time Saenz filed this appeal, which may have limited her attorney’s access to the record. In these circumstances, we choose to give him the benefit of the doubt.”

This case is one more example of the extraordinary impact that the pandemic has had on the world, our country, and our court system. Although there are vaccines on the horizon, their widespread implementation is, at best, months away. For now, our only option is to do our best in the face of uncertainty, and, like the Sixth Circuit Court of Appeals judges did, consider cutting others a break when their best just might not be good enough. In the meantime, stay safe everyone, and don’t be too hard on yourselves - or those around you!

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.


Should you copy clients on emails to opposing counsel?

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

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Should You Copy Clients On Emails to Opposing Counsel?

As a result of the pandemic lawyers are working remotely now more than ever before. This means that out of necessity, in-person meetings are far less common during the pandemic, and lawyers are increasingly relying on email to communicate with clients and other attorneys.

Of course, email is not an ideal way to communicate when confidential information is being shared. Not only is email inherently unsecure, since it’s like sending a postcard written in pencil through the post office, it can also present a host of different ethical issues. The Florida Bar Assistant ethics counsel, Joy a Bruner, recently addressed one such issue when she wrote about the ethical issues that are presented when you copy clients in on emails to opposing counsel (online: https://www.floridabar.org/the-florida-bar-news/should-you-copy-your-client-on-emails-to-opposing-counsel/).

Specifically, the issue she addressed was whether a lawyer should “‘cc’ or ‘bcc’ (a) client on the email or would it be better to separately forward a copy of the email to (the) client?” 

She explained that while copying a client in on an email may seem innocuous at first glance, it can actually present a very real ethical dilemma, namely that your client may inadvertently respond in a way that compromises confidentiality: “The danger in copying or blind copying a client on an email to opposing counsel is that the client may include opposing counsel on the client’s reply by using ‘reply all' either by mistake or on purpose. This can result in confidential information being disclosed and, depending on the information and circumstances, a waiver of privilege.”

Next she outlined a safer alternative that allows you to keep your client informed while also ensuring that confidentiality and privilege are preserved: “The better course of action is to separately forward the emails to the client. That way opposing counsel is not included in the list of recipients of the forwarded email and it reduces the risk that the client may disclose confidential information that may harm the client’s interests.”

She then turned to a related issue that also can trigger ethical issues: when an attorney receives an email wherein opposing counsel copies in their client. She explained that in that situation, the email does not operate as consent for the attorney who received it to then include the represented person in their response to the email. 

Instead, permission must be obtained from opposing counsel prior to doing so in order to avoid violating Rule 4-4.2, which provides that a lawyer cannot communicate about a matter with someone the lawyer knows to be represented by another lawyer in the matter: “If you are on the receiving end of an email that includes the opposing lawyer’s client on the email, you cannot include the opposing lawyer’s client on the email unless you have opposing counsel’s permission under Rule 4-4.2.”

The bottom line: email with caution. Not only is it an outdated mode of communication now that alternate and more secure methods are available, careless use of it can also lead to inadvertent ethical violations. So if you insist on continuing to use antiquated email, do so with care.

In the alternative, why not switch to a more secure and modern method of communicating with clients such as the online client portals built into some legal software programs? Since remote work is likely to be part of our daily lives for the foreseeable future, what better time than now to revisit how you communicate electronically with clients?

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.


Does Facebook have an obligation to prevent murder?

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

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Does Facebook Have an Obligation to Prevent Murder?


These days, we spend a lot of time online - probably more than we should. And for most of us, especially during the pandemic, a good percentage of our after work downtime occurs on social networks. We share (and sometimes overshare) our ups and downs, family celebrations, and in recent months, political opinions. Social media platforms have become a gathering place where we connect, interact, and blow off steam. For better or for worse, social media has become entrenched in our lives.

Now that we share so much information on social media, what happens when someone threatens to commit a crime on a social network? Do the companies that own social media sites have an obligation to scan their sites for these types of threats? If a threat is discovered or reported to them, must they act to prevent it from occurring? Do they have to contact the authorities and report the incident? If they fail to ascertain that the threat was made and/or fail take steps to prevent the threat from becoming reality, are they liable if the person who posted the threat carries it out and injures another?

The Court of Appeals of Ohio recently considered this every issue in Godwin v. Facebook, Inc., 2020-Ohio-4834 (Ohio Ct. App. Oct. 8, 2020).  Specifically, the question before the Court was whether civil liability could be imposed against Facebook for failing to report the commission of a felony offense in an effort to prevent it from occurring.

The crime at issue in this case was murder, which arose from the following facts. Steve Stephens was accused of murdering Robert Godwin, Sr., a person who was a stranger to him and whom he chose at random. On the day of the murder Stephens posted the following somewhat cryptic message to Facebook: “FB my life for the pass year has really been fuck up!!! lost everything ever had due to gambling at the Cleveland Jack casino and Erie casino…I not going to go into details but I’m at my breaking point I’m really on some murder shit…FB you have 4 minutes to tell me why I shouldn’t be on deathrow!!!! dead serious #teamdeathrow.” Then, within minutes of publishing the post to Facebook, he murdered the victim.

The victim’s estate filed suit, alleging, among other things, that Facebook “fail(ed) to warn Robert Godwin of Stephens’s dangerous propensity of which Facebook was aware through its data-mining practices, which is the underlying negligence theory upon which the wrongful death and survivorship claims arise…”

At the outset, the Court explained that because Facebook is a “standard commercial business” it only owed a duty to the victim if a there was “special relationship” with him since “businesses do not owe abstract duties to everyone in the world.”

The Court then turned to ascertaining whether a “special relationship” existed, noting that the issue to be determined was whether where Facebook had “taken charge” of a person whom “it knew or should have known was likely to harm to others if not controlled.”

After reviewing the facts of the case at hand, the Court determined that Facebook did not owe a duty to the victim since a “special relationship” between Facebook and the victim simply did not exist:

“At the minimum the duty to act in this case requires an existing relationship between the defendant and the third person over whom ‘charge’ is asserted. Godwin has not cited any authority for the proposition that a social media company ‘takes charge’ of its users to the same extent that a medical or mental health professional takes charge of her patient or a parole or probation officer takes charge of her probationer for the purposes of expanding the theory of liability. Although the line between a contractual, business-consumer relationship and a physician-patient relationship may at one point overlap, this case does not present such a question. The complaint is devoid of any allegations of fact that, if proven, would establish the requisite element of Facebook taking ‘charge’ of its users.”

Then, after considering the additional claims made by the plaintiff, the Court concluded that Facebook was not civilly liable for the victim’s murder.

I wasn’t particularly surprised by this holding, were you? It’s difficult to envision a scenario under which a plaintiff with a similar claim could sufficiently establish either duty or foreseeability, especially given the vague assertions of violence in this case and the fact that the crime occurred nearly immediately after the post went live on Facebook. Even so, it’s an interesting issue, and is one more example of how the blurred the line between online and offline actions has become.

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.