Pennsylvania on the ethics of using smartphones for client data storage

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

*****

Pennsylvania on the ethics of using smartphones for client data storage

These days most lawyers use smartphones for work-related reasons. Smartphone use has become so common that according to the ABA’s 2022 Legal Technology Report, 81% of lawyers surveyed reported that they used smartphones in the courtroom.

Of course, whenever lawyers use technology, security and ethical risks must be considered, and smartphones are no exception. Fortunately, state ethics bars are rising to the occasion and providing guidance for lawyers who store confidential client contact information on their mobile devices.

For example, a few months ago I wrote about New York Ethics Opinion 1240. In this case, handed down in April, the Committee on Professional Ethics considered whether it’s ethical for lawyers who store current, former, or prospective client contact information on their phones to consent to share their contacts with a smartphone app.

The Committee concluded that if a lawyer found that the contact information included confidential client information, “the lawyer may not consent to share contacts with a smartphone app unless the lawyer concludes that no human being will view that confidential information and that the information will not be sold or transferred to additional third parties, without the client’s consent.”

More recently, Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility addressed a similar issue. In Formal Opinion 2022-500, the Committee considered the ethical considerations that arise when lawyers store client information on a smartphone.

The Committee agreed, in part, with the conclusions reached by the New York committee relating to client contact information stored on mobile devices, but expanded its focus to also address issues concerning others types of confidential information stored on smartphones.

The Committee explained that the Pennsylvania Rule of Professional Conduct 1.6, which addresses client confidentiality, differs from New York’s Rule and precludes a lawyer from revealing “information relating to representation of client,” a concept that encompasses a broader range of data than the New York Rule.

As a result, the Committee determined that if a lawyer’s smartphone contains information relating to client representation, “then the lawyer may not consent to share the information with a smartphone app unless the lawyer concludes that no human being will view that information, and that the information will not be sold or transferred to additional third parties, without the client’s consent.”

Precautions lawyers must take to protect confidential client information governed by Pa.R.P.C. 1.6. In some circumstances, this may include declining to give certain permissions to certain apps, avoid installing certain apps, or choosing not to store confidential information on their smartphones.

The Committee provided the following guidance for lawyers seeking to comport with their ethical obligations to maintain client confidentiality when using mobile devices and interactign online:

• When possible, do not store Rule 1.6 information on smartphones.
• Limit the ability of apps to access data, such as contacts, calendars, photographs, camera, microphone, location, files and more. While lawyers have an ethical obligation to do so, it also makes sense to limit the access of apps as much as feasible to protect the privacy of clients and lawyers.
• Android and Apple make it relatively easy to determine which apps access which types of data. For Apple users, check and set permissions by going to Settings > Privacy. For
Android users, check and set permissions by going to Settings > Apps > tap the App >
Permissions. The manufacturers also provide guidance on their websites.
• Minimize risks by not oversharing on social media.
• Keep device software up to date.
• Use a device passcode.
• Use a password manager.
• Enable Multifactor Authentication (MFA) when available.
• Always check and set app permissions to bar or minimize exposure of extraneous data to apps while retaining their functionality.

The guidance offered in both opinions is useful regardless of whether you’re licensed in those jurisdictions. This is especially so if your jurisdiction has not yet weighed in on these ethical issues.

The bottom line: take care whenever you interact online and when storing confidential client data on your mobile devices. Think before you type, and carefully consider whether to share client-related data, including contact information, with any apps that you download.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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.


Pennsylvania Provides Further Guidance on Secure Client Communication

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

*****

Pennsylvania Provides Further Guidance on Secure Client Communication

Are you still using email to communicate with your clients about confidential matters? If so, you might want to re-think that approach. Because when it comes to secure communication, the tide is most decidedly turning.

For many years there were rumblings of security issues with email in earlier opinions, and in 2017 the American Bar Association weighed in more definitively when it issued Opinion 477R. In that opinion, the ethics committee concluded that lawyers should avoid using unencrypted email when discussing particularly sensitive matters. Then, during the early days of the pandemic, both Pennsylvania (Formal Opinion 2020-300) and Wisconsin (Formal Ethics Opinion EF-21- 02) ethics committees referenced the ABA opinion’s conclusion and adopted its basic premise regarding secure communication in the context of providing ethical guidance for remote work.

Fast forward to 2022, and the Pennsylvania Bar Association has issued yet another helpful opinion that offers further guidance on the obligation of lawyers when communicating with clients using unencrypted email. In Formal Opinion 2022-400, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility considered the ethical obligations of attorneys when “transmitting information relating to the representation of a client to clients, opposing counsel, judges, and others.”

The Committee reviewed the ethical obligations triggered when lawyers communicate with clients along with the conclusions reached in other jurisdictions related to secure electronic communications. The Committee ultimately determined that in some situations, it is ethically permissible for attorneys to communicate about clients for work-related purposes using unencrypted email.

However, the Committee concluded that prior to doing so should, lawyers should, on a case-by-case basis, evaluate the benefits and risks associated when using unencrypted email given the nature of the information that will be discussed. Attorneys must discuss the risks and benefits of unencrypted communication with their clients, and if the risks outweigh the benefits, compliance with competence requirements may necessitate the use of more secure methods for communication.

According to the Committee, certain information should never be sent using unencrypted email, such as when a client has requested maximum security for certain information or when highly sensitive materials are being discussed or shared. The Committee also provided valuable guidance to help lawyers determine whether unencrypted email is the most appropriate method for a particular communication.

The Committee explained that lawyers should:

Whenever possible, avoid transmitting files containing information relating to the representation of a client as email attachments
Consider using “Encrypt & Prevent Forwarding” features if available
Advise clients not to forward emails or memos to third parties.
Encrypt communications or use passwords for attachments containing client-related information
Reduce the likelihood of unauthorized access by using a central file-sharing portal, cloud storage provider, or similar service
Consider using a client portal to eliminate the need to attach files to email and or use an end-to-end encrypted email service.

The easiest way to protect confidential client information when communicating electronically is to use a secure client portal built for law firms, like the ones built into law practice management software. By doing so, you avoid the hassle of assessing security risks on a case-by-case and email-by-email basis.

Encrypted email can be difficult to set up and often requires the assistance of an IT expert. In comparison, client portals are built into user-friendly software, and no IT assistance is needed to set them up.

Secure client communication portals provide an encrypted tunnel that protects client data and solves the problem of scattered communications. All client portal messages are stored in a secure, centralized online location that is easily accessible 24/7. All messages are connected with the appropriate case file, and your client’s confidential information is protected from prying eyes.

If your law firm is still using unencrypted email to discuss confidential client issues and has not yet transitioned to a more secure communication method, there’s no time like the present to make that change. The writing is on the wall: unencrypted email is an outmoded and ethically questionable way to communicate about client matters. Make the switch to an encrypted form of electronic communication today, and rest easy knowing that your law license, and your client’s data, are protected.

Nicole Black is a Rochester, New York attorney, author, journalist, and Senior Director of SME and External Education at MyCase legal practice management software. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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.


Wellness for Lawyers: How Technology Can Help

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

*****

Wellness for Lawyers: How Technology Can Help

It’s been more than two long years since the onset of the pandemic, and although things seem to be slowly, steadily improving, we’re not yet in the clear. The stressors of living during this unpredictable time cannot be underestimated. Some have experienced COVID-related health scares both personally and within their close circles of family and friends. Others have endured constant low levels of stress brought on by the uncertain times in which we’ve had to exist.

For lawyers, managing stress can be challenging, and it’s not something many of us are very good at. That’s why this year’s Solo and Small Firm Conference at the Monroe County Bar Association focused on lawyer wellness, and the goal was to provide lawyers with strategies to help them address and reduce stress.

Recently, I spoke on a panel at that conference with Aleksander Nikolas and Jared Correia that focused on using IT tools for firm management and personal wellness. We each shared a variety of tips related to office productivity, wellness technology, and environmental changes that can be made to facilitate better mental and physical health.

Here are some of our top tips from each category. First, let’s tackle productivity. Jared emphasized the value of developing productivity systems and provided several different examples. The first is the OHIO method for email management, or “Only Handle It Once,” which means you either act on it, file it, or delete it. Other systemic solutions that he recommended considering are “Getting Things Done” (GTD), the Checklist Manifesto, the Pomodoro method, and Eat the Frog (do least desirable tasks first).

Other advice he offered related to technology choices and included going paperless and using document management tools, and taking advantage of time-tracking and calendaring tools to ensure productivity in your firm. Finally, he strongly suggested that lawyers learn to delegate, avoid multi-tasking, turn off email notifications, and set aside a specific time each day to review emails.

Next up was wellness technology, which was my category. I recommended that attendees check out several wellness mobile apps for meditation, including Calm, Headspace, and Stoic. I also explained how SmartWatches are an excellent tool for tracking and maintaining wellness since they typically include physical activity trackers, meditation, breathing and sleep-tracking apps, built-in features that protect hearing, and monitor and store other health-related data as well.

I also discussed the health-related benefits of Smart Assistants like Amazon’s Alexa. Using this technology, you can play relaxing music, launch meditation apps, and listen to sleep sounds, white noise, or positive affirmations such as my favorite, the Seneca daily quote.

Last but not least, Aleks discussed steps lawyers could take to improve their work environment. One of the topics he covered was office technology and equipment. He provided a list of resources that offer buying guides to assist in understanding the difference between marketing language and valuable features for technology products.

He recommended two sites for technology features and terminology explanations: https://www.newegg.com/insider/category/buying-guides/ and
https://www.neweggbusiness.com/smartbuyer/.

To monitor buying information, he suggested this website:
https://www.tomshardware.com/reviews/monitor-buying-guide,5699.html. And for laptop purchases, he pointed lawyers to these websites:
https://www.wired.com/story/how-to-buy-the-right-laptop-for-you/ and
https://www.neweggbusiness.com/smartbuyer/buying-guides/choosing-a-laptop-for-business-a-guide-to-brands-and-categories/.

He explained that if you’re in the market for new technology for your law office, those resources are a great place to start, but that you should always start your research by searching for updated guides since the latest models with new features are constantly being released.

At the close of the presentation, we emphasized that wellness results from the choices you make on a daily basis and that there’s no time like the present to start making better choices that lead to better health. With that, we ended our talk with this apropos Dr. Suess quote that’s worth mulling over: “Step with great care and great tact, and remember that life’s a great balancing act.”

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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.


Technology Competence Requires Ethical Compliance During Remote Proceedings

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

*****

Technology Competence Requires Ethical Compliance During Remote Proceedings

With new COVID-19 variants popping up left and right, we face renewed uncertainty about the pandemic and the near future. As a result, many law firms continue to allow remote work, and some legal proceedings are occurring virtually.

The challenging times we face highlight the importance of ensuring that not only that your law firm is as fully functional as possible when working remotely, but that lawyers and staff comply with ethical obligations even when attending online proceedings.

Part of this requirement is that lawyers maintain a duty of technology competence. Technology competence is not a new concept. There are now 40 states that have adopted this ethical requirement. The most recent one to do so was Hawaii, which revised Comment 6 to Rule 1.1 of the state’s Rules of Professional Conduct to indicate that lawyers must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” The revision became effective earlier this year on January 1, 2022.

As more states increasingly adopt this ethical requirement, it becomes all the more important for lawyers to have a thorough understanding of their technology competence obligation, which includes understanding their ethical duties and how they apply during remote proceedings. The failure to do so can often have significant ramifications.

Case in point: a recent State Bar of Arizona disciplinary proceeding wherein a lawyer was recently suspended for 60 days for impermissibly coaching a client by using chat features while the client was being cross-examination on a video meeting platform.

In the Matter of a Member of the State Bar of Arizona, Ryan Patrick Claridge, Bar No. 031752, it was alleged that Claridge sent chat messages to his client that “directed her to provide specific, substantive answers to specific questions that were being asked of her.”

According to the Court, when Claridge was admonished for sending the chat messages, he agreed to stop sending them but justified his actions by saying that “it would be the same as if I shook my head in the courtroom.”

The Court disagreed and imposed sanctions after concluding that his “conduct violated Arizona Supreme Court Rule 42, specifically: ER 3.4(a)(fairness to an opposing party; ER 8.4(c)(deceit); and ER 8.4(d)(conduct prejudicial to the administration of justice)...”

This conclusion makes sense. After all, virtual behavior is simply an extension of offline behavior, and coaching clients during a deposition is impermissible whether it’s done in person or electronically. In other words, the medium doesn't change the message.
When participating in a remote deposition, understanding your jurisdiction’s ethical rules is paramount. Doing so ensures that your interactions both online and offline are permissible. With that necessary foundation, you'll be in a position to assess whether your virtual conduct is, in fact, ethical.

Certainly, the online world sometimes presents situations that are not easily translated into offline conduct, but I would argue that this was not one of them. During depositions, coaching is coaching no matter the format, and doing so is unethical.

As we head into a future that will undoubtedly include increased online interaction even after the pandemic has abated, it’s all the more important to ensure that you err on the side of caution and tread lightly when interacting remotely with clients, opposing parties, their attorneys and the court. As I always say, better safe than sorry - especially when your license to practice law could be at risk.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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 Ethics of Copying Clients on Emails

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

*****


NYC Bar on Ethics of Copying Clients on Emails

Lawyers have used email for decades, ever since the mid-1990s when ethics committees determined that it was permissible for lawyers to use email to communicate about case-related matters. Fast forward to 2022, and most lawyers now use email at least occasionally as part of their day-to-day practice.

However, some have begun transitioning to more secure communication methods like encrypted client portals. This switch is occurring because traditional email can be problematic for several different reasons.

For starters, it’s inherently unsecure and is the equivalent of mailing a postcard written in pencil. For that reason, as technology improves, ethics standards are changing with the times, and a number of jurisdictions have handed down opinions advising lawyers to avoid unecrypted email when discussing particularly sensitive information.

Another problem encountered when using email is that the features that allow copying (cc) or blind copying (bcc) clients, while seemingly innocuous, can present ethical issues. The NYC Bar recently opined on this practice in Formal Opinion 2022-3. At issue was whether it is ethical for lawyers to cc or bcc their clients on emails sent to other attorneys.

The Committee on Professional Ethics explained that this common practice triggers several ethical concerns: “Attorneys who copy their clients on email communications with other counsel may expose their clients to risks, including: (1) that the client will receive a direct communication from other counsel; and (2) that the client will intentionally or inadvertently reveal confidential information or waive privilege by replying to all.”

At the outset, the Committee focused on the ethical obligations of the client’s attorney in this situation. According to the Committee, attorneys who choose to copy their clients on emails to other counsel must engage in a risk-benefit analysis. The Committee explained that in litigation and other adversarial matters, the risk nearly always outweighs the benefit. Thus in those cases, lawyers should consider forwarding the email to their clients rather than copying them on the email.

In comparison, for less contentious proceedings, lawyers can copy their clients on emails with other attorneys but should consider taking the precaution of “(1) entering into an agreement with the other attorneys making clear who is to be cc’d on communications; and (2) discussing the risks of such communications with the client, advising the client to be mindful of such risks, and ensuring the client’s appreciation of the risks and agreement to proceed as contemplated.”

Next, the Committee addressed what a lawyer should do upon receiving an email from an attorney in which that attorney’s client is copied. After considering precedent from both the NYC Bar and other jurisdictions, the Committee determined that “an attorney who cc’s their own client on an email to other counsel should reasonably expect that such other counsel will use the reply all function and thus consents to the other counsel doing so within the meaning of Rule 4.2(a).” However, the Committee cautioned that “(t)his implied consent is limited, however, and must be construed reasonably under the circumstances.”

Finally, the Committee considered the receiving attorney's ethical duty when opposing counsel “bcc’s their client on an email with other counsel and the client then replies to all.” The Committee concluded that in that situation attorney of the client who has been bcc’d “has not impliedly consented, without more, to other counsel’s contacting the attorney’s client.”

If you’re a New York lawyer and are still using email to communicate with clients, take heed. Think twice before adding clients to an email. Otherwise, you risk opening up a Pandora’s box of ethical risks. I would instead suggest that a wiser route to take would be to avoid the ethical issues altogether by simply forwarding the email to your client. 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 legal practice management software. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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.

 


Sign of the Times: New York To Require Cybersecurity CLE Credits

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

*****

Sign of the Times: New York To Require Cybersecurity CLE Credits


When was the last time you attended a CLE course focused on cybersecurity issues? If you’re anything like most lawyers, chances are you’ve never taken one. But if you’re a New York lawyer, that will soon change.

For many members of the legal profession, technology adoption tends to be an afterthought, trumped by the noble cause of client representation. After all, you didn’t go to law school to learn about mobile apps and cloud computing software; your goal was to learn how to practice law.

Unfortunately, the tides of change have other plans. Over the past decade, technology has advanced at unprecedented rates. The internet has become our source of truth, and cloud computing is now the default computing system used by people - and lawyers - worldwide. Mobile devices are prolific in the legal profession, and smartphones are commonplace.

Even before COVID-19, technology was unavoidable. But after the onset of the pandemic, legal technology adoption accelerated at rates never before seen as lawyers sought to keep their firms afloat despite the social distancing requirements and unpredictability of the pandemic.

A side effect of the rapid uptick in technology use by lawyers was the significant increase in cyberattacks, including email phishing, email spoofing, malware, social engineering attacks, and brute force hacking. This was bad news for the law firms that were struggling with technology adoption and implementation and many were wholly unprepared for the frequency and variability of the attacks.

As we try to find a new normal on what may be the other side of the pandemic, cybersecurity concerns are paramount for many law firms, which is why New York’s recently enacted cybersecurity CLE requirement is so timely.

Last month, on June 10th, the Departments of the New York State Supreme Court, Appellate Division issued a Joint Order that requires that all New York attorneys complete one hour of cybersecurity continuing legal education as part of their biannual registration requirement. The Order takes effect on January 1, 2023.

The new CLE requirement encompasses two types of cybersecurity courses. Lawyers will have the option of taking a cybersecurity CLE focused on either ethics or law practice.

The ethics option covers cybersecurity, privacy, and data protection, and ethics, and “must relate to lawyers’ ethical obligations and professional responsibilities regarding the protection of electronic data and communication.”

In comparison, the training related to practicing law encompasses the “technological aspects of protecting client and law office electronic data and communication,…vetting and assessing vendors and other third parties relating to policies, protocols and practices on protecting electronic data and communication; applicable laws relating to cybersecurity (including data breach laws) and data privacy; and law office cybersecurity, privacy and data protection policies and protocols.”

So pick your poison, New York lawyers. Come January, a cybersecurity CLE is in your future. It’s simply a matter of choosing the cybersecurity category that provides the foundational knowledge that you need to maintain your already-existing ethical obligation of technology competence. No matter how you look at it, it’s a win-win situation all around.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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.

 


New York on the Ethics of Sharing Phone Contacts With Mobile Apps

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

*****

New York on the Ethics of Sharing Phone Contacts With Mobile Apps

It’s hard to believe that it’s been fifteen years since the iPhone was released. A lot has changed during that time, not the least of which is the number of lawyers who use smartphones, with the vast majority of attorneys now owning smartphones in 2022. Many also regularly download many different apps onto their mobile devices, which isn’t surprising since the apps are oftentimes what make our mobile devices truly useful.

Unfortunately, mobile apps can also present ethical issues for lawyers, especially when it comes to the types of information collected by an app. For example, some apps require access to all of the contact data stored on your mobile device. Because so many lawyers store client contact information on their phones, consenting to disclose that information can trigger ethics regulations.

This very issue was recently addressed in New York Ethics Opinion 1240. In this case, handed down in April, the Committee on Professional Ethics considered whether it’s ethical for lawyers who store current, former, or prospective client contact information on their phones to consent to share their contacts with a smartphone app.

At the outset, the Committee addressed the ways that contact data can be exploited after being shared with an app: “Social media apps may…establish links between users…(or) sell products or services may seek such access to promote additional sales…(or) disseminate…(political) views.”

Next, the Committee confirmed that the names of clients can amount to confidential information, as can the existence of a client contact on a lawyer’s mobile device. The Committee explained that “(a) contact could be confidential because it reflects the existence of a client-attorney relationship which the client requested not be disclosed or which, based upon particular facts and circumstances, would be likely to be embarrassing or detrimental to the client if disclosed.”

According to the Committee, “a client is more likely to find that disclosure of the fact of a current or prior representation by a lawyer is embarrassing or detrimental where the representation involves or involved criminal law, bankruptcy, debt collection or family law.”


For that reason, lawyers must make “reasonable efforts to prevent the unauthorized access of others to those names, whether stored as a paper copy in a filing cabinet, on a smartphone, or in any other electronic or paper form.”

Therefore, before downloading an app that requires access to contacts on the phone, lawyers must “determine whether any contact – even one – is confidential within the meaning of Rule 1.6(a).”

There are a number of factors that should be considered when assessing the confidentiality of a client contact. First, determine whether “the contact information identifies the smartphone owner as an attorney, or more specifically identifies the attorney’s area of practice (such as criminal law, bankruptcy law, debt collection law, or family law).” Another issue to think about is whether the contact data on the phone specifies that the person is a client, as opposed to a friend or family member. Finally, consider the other types of personal information included in a contact, such as email addresses, residence or work addresses, the names of family members, financial data, or other information not readily available in the public realm.

The Committee concluded that if, after making that assessment, a lawyer found that the contact information included confidential client information, “the lawyer may not consent to share contacts with a smartphone app unless the lawyer concludes that no human being will view that confidential information and that the information will not be sold or transferred to additional third parties, without the client’s consent.”

In other words, if you choose to store client contact information on your mobile device, tread lightly when downloading apps. If an app requires access to contact data, think twice lest you open up a can of worms that could lead to client embarrassment, a disciplinary complaint, or even the loss of your law license. As I always say, better safe than sorry.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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.

 


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.

*****

 

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.

*****

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.

*****

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.

*****

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.

*****

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.

*****

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.

*****

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.

*****

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.