Generative AI: A Double-Edged Sword

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

*****

Generative AI: A Double-Edged Sword

If you’ve read any of my recent articles, you know that I have high hopes for generative AI tools like ChatGPT. However, I can't help but brace myself for disappointment. 

Right now, we're in the midst of a fleeting honeymoon phase, during which this cutting-edge technology is seamlessly enhancing our lives, reducing friction, and promising a brighter future. 

And yet I feel a strong sense of foreboding. 

What will happen when this very brief period of harmony ends? Will we find ourselves trapped in a dystopian nightmare where AI, in a dramatic twist of fate, turns on its human creators? Will we face a future where bad actors use AI to create even more political chaos, sowing discord and uncertainty, on a scale never before seen?

Or, will we find ourselves, as cybersecurity expert Bruce Schneier anticipates, in the midst of a grossly magnified version of the current online advertising hellscape, where we’re subjected to a non-stop onslaught of digital snake oil? 

In a recent post, Schneier contends that we're at a pivotal crossroads with AI, and if we don't get it right, we're in for a very rough ride. According to Schneier, corporate interests may very soon rain on the generative AI parade and trample on the enormous potential offered by this technology. 

He cautions that there is an imminent risk that corporate greed may overshadow the remarkable potential of generative AI: "Imagine you’re using an AI chatbot to plan a vacation. Did it suggest a particular resort because it knows your preferences, or because the company is getting a kickback from the hotel chain? Later, when you’re using another AI chatbot to learn about a complex economic issue, is the chatbot reflecting your politics or the politics of the company that trained it?"

Schneier warns that if corporate interests remain unchecked, generative AI will follow the same path as the technologies that preceded it. Absent a concerted effort to travel a different road, we can look forward to more of the same, only on a much more intrusive and all-encompassing scale:

"Twenty years ago, Google’s search engine rapidly rose to monopolistic dominance because of its transformative information retrieval capability. Over time, the company’s dependence on revenue from search advertising led them to degrade that capability. Today, many observers look forward to the death of the search paradigm entirely. Amazon has walked the same path, from an honest marketplace to one riddled with lousy products whose vendors have paid to have the company show them to you. We can do better than this. If each of us are going to have an AI assistant helping us with essential activities daily and even advocating on our behalf, we each need to know that it has our interests in mind. Building trustworthy AI will require systemic change."

Like Schneier, I find myself questioning whether we, as a society, have the collective will to rise to this challenge. We’re caught in a complex web of technological advancement, corporate interests, and ethical concerns. Balancing the immense potential of AI with equally significant risks will be challenging, especially given the rapid rate of technological advancement. 

As we continue to develop and rely on these systems, transparency, accountability, and user-centricity must not become casualties of progress. The time is ripe for us to confront these challenges head-on. 

Are we up for the collective challenge of shaping our AI-driven future to be one that we want to live in? Or will we allow ourselves to be swept away by the tide of unchecked technological development, leaving our hopes and dreams in their wake as we cope with the unforeseen consequences?

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software, an AffiniPay company. 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 [email protected]


Generative AI in Law: A New Survey of Lawyer Perspectives and Plans

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

*****

Generative AI in Law: A New Survey of Lawyer Perspectives and Plans

Have you recently heard the term “ChatGPT” or “generative AI” and wondered what they were? Or maybe you’ve read one or two of my recent columns and have a general sense of what this technology is and what it does. 

But are you using it in your day-to-day workflow? If the answer is “no,” according to a recent survey from the Thomson Reuters Institute, you’re not alone.

Last week Thomson Reuters released a report on the survey, ChatGPT and Generative AI within Law Firms. The report covered the findings from the survey and highlighted the views of legal professionals on this new technology, including their understanding of the risks and benefits. The survey was conducted in March 2023, and the survey respondents consisted of 443 legal professionals from midsize and large firms located in the United States, United Kingdom, and Canada.

According to the Report, the vast majority (91%) of legal professionals are aware of generative AI tools like ChatGPT. Large law firm respondents are the most familiar with the concepts (93%) compared to those from midsize firms (90%).

Not surprisingly, the technology is viewed with skepticism, with approximately 15% of those surveyed reporting that their firms cautioned employees against unapproved generative AI utilization in the workplace. Another 6% mentioned a complete ban. A marginally higher percentage of large law firms (10%) prohibited unauthorized usage compared to midsize law firms, which stood at 4%.

The survey also addressed generative AI adoption levels in law firms, and very few respondents reported that these tools are currently being used in their firms. A mere 3% of those surveyed reported that generative AI is presently employed at their firms. Another one-third of respondents shared that their firms were contemplating its adoption. Notably, 60% of those surveyed indicated that their firms have no immediate intentions to incorporate generative AI into their operations.

Notably, when asked if it could be used for legal work, 82% agreed.

Interestingly, however, the respondents had very different views as to whether generative AI  should be applied to legal work as opposed to non-legal work. They were much more inclined to think it should be used for non-legal work, with nearly three-quarters believing that (72%). But only half (51%) felt that it should be used for legal work. 

Partners had different views than associates as to whether it should be used for legal work, with 59% of partners and managing partners concluding that generative AI should be applied to legal work. In comparison, only 52% of associates and 44% of other attorneys in the firms agreed with that assertion.

In other words, the results seem to indicate that legal professionals tend to be more likely to agree that generative AI should be used to replace or otherwise impact the work performed by those who work for them.

A small minority of respondents are actually using this technology, with 3% of respondents confirming that they currently use generative AI or ChatGPT for law firm operations. An additional 2% said they are actively planning for its use. About one-third of respondents (34%) are still in the consideration phase for generative AI and ChatGPT, and 60% have no current plans to add generative AI to their firm’s IT stack. 

The survey data also showed that only 3% of U.S.-based law firms currently use generative AI or are planning to use it. 64% of respondents from U.S. firms shared that there were no plans to implement generative AI.

Overall, law firm partners seemed to be the most willing to consider adopting the technology into their firms. Forty percent of partners surveyed expressed that they were weighing the decision to utilize the technology, compared to 28% of associates. Notably, over two-thirds (67%) of associates stated they did not intend to employ generative AI, in contrast to 54% of partners or managing partners who shared a similar sentiment.

One reason for the reluctance to immediately utilize generative AI in law firms is risk aversion. According to the report, the majority of respondents, 62%, shared that there were concerns about the risks of using generative AI.

So, while awareness of generative AI tools like ChatGPT is high, implementation and acceptance within law firms remain low. As the legal landscape evolves and generative AI technologies mature, perspectives will change and adoption rates will undoubtedly increase over time, just as they did for email, social media, and cloud computing. 

However, the change will occur much more rapidly than ever before due to the exponential rate of technological advancements in AI on the horizon. At this pivotal moment in time, it’s important to recognize this inevitable shift by embracing innovation and fostering a culture of continuous learning. 

In other words, there’s no better time than now to remain curious about new technologies like ChatGPT. Is your law firm ready for the AI revolution?

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software, an AffiniPay company. 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 [email protected]


The Legal Software Shift: Recent Report Highlights Efficiency and Flexibility Gains

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

*****

The Legal Software Shift: Recent Report Highlights Efficiency and Flexibility Gains

Technology is advancing at a rapid clip, and keeping up isn’t easy, especially when you’ve got a busy caseload to manage. When faced with looming court deadlines, constant client phone calls, and an overflowing inbox, the prospect of incorporating new technologies into your daily workflow can sometimes seem daunting.

Fortunately, new technologies are increasingly user-friendly and it’s easier than ever to implement new software tools into your law firm. The results of a recently released legal industry report confirm this premise and show that legal professionals are embracing new technologies and reaping the benefits.

According to data from the MyCase and LawPay 2022 Legal Industry Report, lawyers are taking advantage of cloud computing tools at rates never before seen. The survey data indicated that 80% of the legal professionals reported that their firms now use cloud-based legal software, and 47% invested in cloud-based remote working tools within the past year. The top remote working tools invested in by law firms were: video conferencing (73%), e-signature (60%), communication software (42%), billing software (34%), and law practice management software (32%).

Another way that lawyers are using technology is to increase payment flexibility for their clients thus ensuring prompt payment of legal bills. Data from the Report indicated that 80% of law firms now accept online payments via credit card or e-check, and 75% rely on legal-specific payment processing tools to collect payments. Notably, 61% of the legal professionals surveyed reported that their firms collected more money as a result of using online payment processing software, and the collection rates for firms that accepted online payments were nearly 10% higher than those that didn’t.

Similarly, the data showed that the turnaround time for receiving payment was reduced when online payments were accepted. For starters, according to the data, firms that accepted online payments received invoice payments 32% faster than those that didn’t users. 

The same was true for consultation fees, with 26% of firms using online payments reporting that the turnaround time was reduced by 2-5 days, and 13% shared that it was reduced by more than five days. Firms that accepted online payment for consultation fees also collected additional money over the period of one year than those that didn’t to the tune of $12 million more.

The data also showed that law firms are increasingly offering clients multiple ways to pay legal fees, with 49% of respondents sharing that their firms offer or would consider offering their clients the ability to pay legal fees using legal fee loans. Another 65% provide clients with the option to set up payment plans for legal fees. 

Finally, the Report included data on how much customization legal professionals seek in their firm’s primary operating software, such as law practice management or project management software. The top features that the respondents sought to have included in their primary operating software were time tracking and billing (65%), calendar management (59%), document management (54%), online payment processing (47%), email management (38%), e-signature (31%), and task management (29%).

In comparison, the top tools that law firms chose to integrate with their primary operating software included: email (45%), document storage (43%), accounting (29%), and document automation (23%). 

Finally, data from the Report showed that the top functions that firms outsourced rather than handling within the firm were: website maintenance (53%), website development 52%), email marketing (35%), and accounting (33%).

No matter how you look at it, one thing is clear: the legal industry is in the midst of a transformative shift that is revolutionizing the way legal professionals work and deliver legal services. This Report highlights not only the increased efficiency and flexibility that technology offers legal professionals but also the broader implications of this impactful transition. 

Legal professionals navigating the technology landscape must adapt to these emerging trends or risk falling behind. In other words, for lawyers seeking to maintain a competitive edge, embracing the potential of legal technology is no longer optional; it’s a necessity.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software, an AffiniPay company. 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 [email protected]


AI at Your Fingertips: The Best ChatGPT Add-ons and Extensions for Lawyers

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

*****

AI at Your Fingertips: The Best ChatGPT Add-ons and Extensions for Lawyers

The technology landscape is evolving rapidly, and turning a blind eye is no longer an option for lawyers seeking to stay competitive. AI-based technologies are on the cusp of revolutionary change, as evidenced by the release of GPT-4 in mid-March. This groundbreaking advancement in AI technology is significant because it enables unparalleled natural language understanding, generation, and context awareness.

In previous articles, I explained the significance of generative AI chatbots like ChatGPT and Bing chat, which are advanced AI language models designed to streamline communication, research, and information processing. The rapid advancements in these AI technologies have significantly enhanced the potential for innovative applications in the legal industry and offer boundless possibilities for lawyers seeking to increase efficiency and improve decision-making.

The release of GPT-4 is just the beginning. As this technology is incorporated into Microsoft Office, Google Workspace, and legal-specific applications, the impact of generative AI will increase exponentially. 

In the meantime, there are browser extensions and other types of add-ons that make it easier than ever to incorporate ChatGPT capabilities into your daily workflows. 

Currently, the two most popular AI chatbots are ChatGPT and Bing Chat. ChatGPT is available as a standalone chatbot, and a free version is available. After test-driving it, you may want to sign up for ChatGPT Plus, which costs $20/month and offers consistent uptime and prioritized access to new features, including access to GPT4. To access Bing’s chatbot, you’ll need to sign up for the waiting list, and once you’re granted access, it is available here.

Below you’ll find the ChatGPT add-ons and browser extensions that I’ve found to be the most beneficial thus far. Many others are available, so no matter your needs, you’re sure to find an add-on that meets them in your browser’s app store.

  • Bing Chat for All Browsers: In theory, Bing chat can only be accessed using Microsoft’s Edge browser. This browser extension provides access via a link in your toolbar. You can also access it by creating a bookmark to the link provided above.
  • ChatGPT for Gmail: This browser extension adds ChatGPT to Gmail, so that when you open an email, it will scan the email and if you activate it, draft a suggested reply email. 
  • ChatGPT Prompt Genius: With this extension, you’ll have access to ChatGPT prompts created by other users. This saves time and allows you to take advantage of curated requests designed to elicit specific responses, such as language translation or document editing.
  • WebchatGPT: Currently, ChatGPT isn’t connected to the web, and its database is limited to data up to 2021 only. Webchat GPT is a handy addon that allows you to augment ChatGPT results with real-time web results directly in the ChatGPT interface. You can toggle the web results on or off, giving you more flexibility when researching an issue or seeking information.
  • Voice control for ChatGPT: This extension allows you to have verbal conversations with ChatGPT. Simply toggle the microphone on and speak your requests. ChatGPT will then respond by reading aloud the output, but you have the option of silencing the response.

Embracing technology and adapting to change is essential for staying competitive and delivering the best results for your clients. If you’re ready to dive into the potential that ChatGPT offers, these add-ons and browser extensions are great ways to streamline your workflow. By incorporating these innovative tools into your daily routine, you can effectively harness the power of generative AI technology to the benefit of your practice and your clients

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software, an AffiniPay company. 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 [email protected]


10 Ways Lawyers Can Unlock the Potential of ChatGPT

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

*****

10 Ways Lawyers Can Unlock the Potential of ChatGPT

You’ve probably seen many recent headlines about ChatGPT, an AI-powered chatbot that generates human-like responses to questions. In my last article, I explained what it is and why it matters to lawyers. In this article, I’ll explore ten ways legal professionals can use ChatGPT in their daily workflow, including for legal research, writing, client service, and more.

For the use cases listed below, you can query either ChatGPT or, if you have access to it, Bing’s new ChatGPT tool . While both chatbots provide helpful answers, Bing’s database is more current. Bing’s results also include citations that allow you to view the website from which the information was obtained.

When using ChatGPT, it’s essential that you already have a sufficient knowledge base regarding the topics you’re enquiring about. With AI chatbots, the goal is to save time and hone in on key issues. These tools cannot replace lawyers or legal expertise; it’s up to you to analyze the responses and revise them accordingly so that they are ultimately accurate and meet your needs.

Remember that no matter the query, you’ll obtain the best results by ensuring that your question is as detailed as possible. Provide sufficient context regarding your role in the scenario, any necessary jurisdictional information, and the desired end product. Then carefully review the output and cross-check it with reliable sources if needed. 

Since the ethical issues presented by this technology haven’t been fully vetted at this early stage, it’s advisable to keep client confidentiality in mind and craft queries that don’t disclose any identifiable client information that may be confidential.

That said, let’s dive in and explore ways that legal professionals can use ChatGPT technology. Below I list ten ways to use ChatGPT as part of your preliminary workflow process across a variety of situations, including legal research, document drafting, trial preparation, law firm management, and more. I tested each concept before including it in this article and found the output provided to be helpful and a great starting point.

    1. Summarize a legal concept: You can replace a legal dictionary by requesting that “res ipsa loquitor” or “sui generis” be defined and explained. You can ask for a general definition or limit it to your jurisdiction’s interpretation. You’ll find that the response will be a great starting point for your research.
    2. Summarize a case: Provide a case citation and request a summary. The response will consist of a short description of the facts, the issues presented, the court’s ruling, and possibly the significance of the decision.
    3. Summarize transcripts: Enter text from a transcript and request a summary. There is a limit to the number of characters you can enter in a single query, so you may have to enter a few pages at a time. 
    4. Draft sample agreements like NDAs: ChatGPT will often provide a draft that is a good starting point from which you can craft a robust document.
    5. Create questions for direct or cross-examination: Specify the issues unique to your case and use the resulting questions as food for thought when crafting your direct or cross-examination of a witness.
    6. Voir dire: Your query should identify the type of case and an issue you’d like to explore and then craft your voir dire using the resulting output.
    7. Draft client intake forms: Request that forms be created for specific types of cases, and modify the results to suit your needs.
    8. Draft a retainer agreement: Identify key clauses and concepts you’d like included and update the document provided to include information specific to your firm and the client’s case.
    9. Letters to clients: Draft opening and closing letters for different cases and then create templates that can be easily replicated across matters.
    10. Letters to opposing counsel: Among others, you can request demand or cease and desist letters. The chatbot will provide a working draft that can serve as the basis for a more detailed request specific to your case.

As you can see, ChatGPT has the potential to streamline and improve the quality of your work. Certainly, it doesn’t replace your professional expertise and judgment. Instead, it provides a complementary tool that helps you work more efficiently and effectively. 

Generative AI tools like ChatGPT are the future, and I fully expect that they’ll rapidly become part of the daily workflow of lawyers. You’ll soon find that even if you’re not using this technology, there’s a good chance that your opponents will.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software, an AffiniPay company. 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 [email protected]


Chat GPT 101 for Lawyers: The Upsides — and Downsides

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

*****

Chat GPT 101 for Lawyers: The Upsides — and Downsides

There’s a new technology making waves that should be on your radar if it isn’t already: ChatGPT. The reason you should familiarize yourself with it is because all signs indicate that this cutting-edge artificial intelligence (AI) technology and other tools like it will have a significant impact on the practice of law.

ChatGPT is an artificial intelligence language model that generates human-like responses to natural language queries. The reason ChatGPT has made such a splash is because it can understand and respond to a wide range of questions, and then provide near-instantaneous responses, which include generating documents. For example, I asked it to draft a demand letter, an NDA, and an employment agreement, and the documents it created were very workable rough drafts.

It’s available as a standalone chatbot, and there’s a free version available. After test-driving it, you may want to sign up for ChatGPT Plus, which costs $20/month and offers consistent uptime and prioritized access to new features. And, as I discuss below, ChatGPT is already being incorporated into legal technology products, so you’re likely to encounter it one way or another sometime soon.

The reason everyone is talking about ChatGPT is because it holds incredible potential. Its output is fast and often impressive, and when ChatGPT works well, it’s mind-boggling. 

However, its drawbacks are significant. It often makes up facts and then serves them up in a way that sounds completely believable. In one case, I asked it to draft a LinkedIn post about an article in which I was quoted, and it created a quote out of thin air. In another, the response provided seemed on point at first glance but referenced a non-existent California legal ethics provision.

So while the current version undoubtedly provides value to lawyers, it’s important to have working knowledge of the issues being queried along with the ability to weed out false information. That being said, in the very near future the accuracy of its output will undoubtedly increase exponentially as new versions are released. 

Notably, it’s already making its mark in the legal industry. A number of legal technology companies have begun to incorporate ChatGPT into their platforms, including Ironclad (“AI Assist” generates redlined versions of contracts and more), DocketAlarm (its ChatGPT integration provides three-bullet-point summary of docket documents), and Lexion (offers a ChatGPT Word plugin that assists with contract drafting).

The bottom line: ChatGPT isn’t yet ready for prime time, but it’s a great way to begin your work. ChatGPT and tools like it are the future, although they are admittedly a work in progress. Even so, as part of your duty of technology competence, you should learn about them so that you can make an educated decision as to whether and how to use them in your law practice. Because like it or not, the majority of lawyers will be using ChatGPT on a daily basis, sooner rather than later. 

But don’t my word on it; let’s see what ChatGPT has to say about its impact on the legal profession. When I asked ChatGPT how it will impact the practice of law, this is what it had to say: “ChatGPT will impact law practices in the very near future by offering AI-powered legal research assistance, document drafting, and contract analysis tools that can save lawyers significant amounts of time and effort. ChatGPT can also help lawyers improve their legal writing skills by providing suggestions for clearer and more concise language. As AI technology continues to improve, ChatGPT will become an increasingly valuable tool for lawyers looking to streamline their workflows and improve the quality of their work.”

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software, an AffiniPay company. 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 [email protected]


ABA Ethics Committee on Copying Clients on Emails to Opposing Counsel

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

*****

ABA Ethics Committee on Copying Clients on Emails to Opposing Counsel

In a few of my recent columns, I've addressed the many issues encountered when lawyers use electronic forms of communication. Among them are the host of security and ethical issues encountered when lawyers use email to communicate with their clients. Notably, there’s a reason I keep writing about this topic: in recent months, ethics committees from multiple jurisdictions have handed down opinions focused on these very issues.

Most recently, I discussed a New City Bar Association ethics opinion, Formal Opinion 2022-3. At issue in this opinion 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 and advised lawyers to think twice before copying clients on an email.

One situation that the New York City Ethics Committee addressed was whether lawyers should bcc “their client on an email with other counsel and the client then replies to all.” The Committee joined other jurisdictions in concluding that in that situation, the attorney of the client who has been bcc’d “has not impliedly consented, without more, to other counsel’s contacting the attorney’s client.”

The American Bar Association addressed this same issue a few weeks ago in Formal Opinion 503.

The ABA Committee considered the issue of implied consent when bcc’ing a client and reached a result that differed from that of several ethics committees, including the New York City Ethics Committee. 

The ABA Committee explained the rationale for its departure was grounded in providing clarity for lawyers seeking ethical guidance: “Several states have answered this question in the negative, concluding that sending lawyers have not impliedly consented to the reply all communication with their clients. Although these states conclude that consent may not be implied solely because the sending lawyer copied the client on the email to receiving counsel, they also generally concede that consent may be implied from a variety of circumstances beyond simply having copied the client on a particular email….This variety of circumstances, however, muddies the interpretation of the Rule, making it difficult for receiving counsel to discern the proper course of action or leaving room for disputes.”

According to the ABA Committee, a clear-cut rule was required in order to remove any doubt and ensure that lawyers clearly understood how to proceed when copying clients on emails: “In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s ‘reply all’ to the communication.”

Next, the Committee provided lawyers seeking to share emails with their clients with alternative mechanisms: “(U)nless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.”

While the ABA Committee’s intent is to provide clarity, its determination is at odds with the conclusions reached in other jurisdictions. As a result, lawyers are faced with conflicting conclusions about the proper use of email, and unfortunately, I fully expect things to get worse as more jurisdictions address the landmine of ethical issues presented by email communications with clients.

As far as I’m concerned, the writing is on the wall: email is outdated, and lawyers should consider using more secure electronic communication methods, such as client portals, in order to protect client confidentiality and avoid ethics violations. There are better, more secure electronic communication methods available, and I would strongly recommend making that transition sooner rather than later.

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 [email protected]


NY Makes Notaries More Accessible By Passing Online Notary Law 

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

*****

NY Makes Notaries More Accessible By Passing Online Notary Law 

Over the past few years, there has been a significant transformation in the way that work gets done. Hybrid and remote work has become commonplace, resulting in a growing need for new and innovative approaches to conducting business online. How we work is evolving, and in many cases, the changes will be permanent.

One example of this evolution is online notarization. During the pandemic, steps were taken to facilitate various types of remote work, including the passage of temporary regulations that permitted documents to be notarized remotely using online tools like videoconferencing software. 

As the effects of the pandemic recede, some states have taken steps to extend the temporary regulations by passing laws that establish permanent online notary procedures. These newly codified laws have the potential to revolutionize the way that legal professionals work, making it easier than ever for lawyers to practice law from any location.

Most recently, New York enacted new rules regarding online notaries on February 1st. Executive Law Section 135-c was passed and authorizes notaries to perform electronic notarial acts as long as they registered with the Department of State and comply with the newly promulgated rules. The notary must be located in New York when the documents are signed, but the signer may be located elsewhere.=

The new law defines electronic notaries as “a notary public or notary who has registered with the secretary of state the capability of performing electronic notarial acts in accordance with section 135-c of the Executive Law and this Part.”

Under this law, notaries must identify remote document signers in one of three ways: 1) the notary may have personal knowledge of the signer; 2) the notary may use technology that allows for the signer to provide an official, acceptable form of proof of identity; or 3) by taking the oath or affirmation of a witness who personally knows the signer, where the notary either personally knows or is able to identify said witness as a result of previous remote identification verification.

Once the document is signed, the law requires notaries to enter into a journal the notarial act performed and the type of identification provided. Journal records must be retained for 10 years after completion of the notarial act, as does the audio-visual recording of the notarization, along with a backup recording. 

I’ve advocated for the increased use of cloud-based technology in the legal profession for over a decade now, and from my perspective, the rapid uptick in its adoption driven by pandemic forces has been nothing short of miraculous. The passage of this regulation and others like it is a wonderful step forward and a heartening sign of things to come.

That being said, there have been some legitimate issues raised regarding the long-term effects of this new law. First, the complexity of the procedural requirements has been criticized. Second, the required length of the record-keeping requirements has been perceived as unduly burdensome, especially as it relates to the electronic data. 

Finally, there are concerns about the long-term impact that this new law will have on the availability of notaries. The fear is that the 24/7 online availability of electronic notaries will reduce the demand for in-person notaries locally, while the stringent and oppressive record-keeping requirements will dissuade people from becoming electronic notaries in the first instance. 

Only time will tell whether this prediction comes to pass. In the short term, however, this new law will have a beneficial effect, and people seeking a notary will have increased  flexibility and more options available to them. As far as I’m concerned, the immediate benefits outweigh the potential negative impact down the road, and I have faith that any issues with the law as promulgated will ultimately be ironed out over time

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-author of "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authored "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 [email protected]

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 [email protected]


New York Bar on Whether Lawyer YouTube Videos Constitute Advertising

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

*****

New York Bar on Whether Lawyer YouTube Videos Constitute Advertising

Lawyers have been advertising online for more than two decades. As technology evolves, the methods of online advertising also change. New social media platforms are launched, and the features of existing sites are regularly modified. 

Because the online world is ever-changing, it can sometimes be difficult for lawyers to navigate the ethical issues that arise when engaging online, especially when it comes to attorney advertising. Some interactions can be deemed personal, while others are professional. And, not all professional interactions necessarily equate to attorney advertising. 

As a result, it can sometimes be difficult to determine whether attorney advertising rules apply. Fortunately, bar association ethics committees regularly issue opinions as to which online interactions constitute attorney advertising and thus require the appropriate disclaimers.

For example, last week, the New York State Bar Association Committee on Professional Ethics handed down Ethics Opinion 1251, which focused on whether educational YouTube videos released by lawyers constitute lawyer advertising.

At the outset, the Committee confirmed that lawyers are permitted to educate the public on legal topics, and that, generally speaking, doing so does not constitute attorney advertising: “It is not unethical for a lawyer to write articles, give lectures, or write a blog about topics of general or specific interest, including the law.”

The Committee then turned to educational YouTube videos, likening them to law firm newsletters. It explained that the application of a three-prong test previously established to determine whether newsletters constituted advertising was appropriate in the context of analyzing the content of attorney YouTube videos. That test required an assessment of “the content of the communication, the intent (purpose) of the communication, and the targeted audience of the communication.” 

Next, the Committee provided examples of educational YouTube content that would not require an attorney advertising disclaimer: “To the extent that the YouTube videos provide general legal information for the public about ‘being a lawyer in the U.S.’ and ‘work-life balance,’ the videos would not constitute advertising.”

In comparison, as the Committee explained, videos focused on promotional news about the lawyer or law firm fall under the ambit of lawyer advertising: “To the extent, however, that the YouTube videos include information and news about the lawyer and her law practice for the primary purpose of retention of the inquirer, they would constitute advertising.”

The Committee also provided clarification regarding other ethical issues that may arise even when the YouTube channel and videos do not amount to attorney advertising. 

First, the Committee advised that “publishing and linking the inquirer’s name and contact information with the channel will not, in and of itself, push the content of the videos across the line into advertising.”

Second, the Committee advised lawyers to tread with caution when responding to any comments to the videos and provide only general information rather than individual legal advice in order to avoid the risk of inadvertently creating an attorney-client relationship.

Finally, the remaining issue addressed related to the possibility that a law firm might link to the YouTube channel or video from the firm’s website or other types of online firm advertisements. According to the Committee, in that situation, it may be appropriate to label the videos as lawyer advertising. 

This opinion provides lots of helpful advice, so I would suggest you read it in its entirety, especially if you’re licensed to practice in New York. If you’re a New York lawyer, should your firm choose to use YouTube or other video platforms to share educational videos, make sure to follow the guidance from this opinion. Finally, if you’re still unsure whether an attorney advertising disclaimer is required, I would suggest you include it. 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 [email protected]


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 [email protected]


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 [email protected]

 

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 [email protected]


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 [email protected]


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 [email protected]


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 [email protected]

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 [email protected]

 


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 [email protected]