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The New York Legal News Round Up

Latest_news It's time for the round up of New York law-related news headlines:

Should Lawyers Be Wary of Cloud Computing and SaaS?


This week's Daily Record column is entitled "Should Lawyers Be Wary of Saas?."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Should Lawyers Be Wary of SaaS?

Online services for lawyers are becoming increasingly common and, for many lawyers, are an attractive alternative to the traditional law practice management software installed and maintained on a local server within a law office.

Online services available to attorneys now include law practice management systems, document management platforms, secure email networks, digital dictation services and billing/timekeeping services.  The online platforms are attractive, economical and viable alternatives for firms of all sizes.

Online e-mail platforms also are increasing in popularity. Yahoo, Hotmail and Gmail now are the top three e-mail service providers in the United States, and are used by lawyers and clients alike.

The one thing these various platforms have in common is that the data created and managed by these services are stored offsite, in the “cloud.”   The offsite data storage issue has resulted in much speculation among lawyers regarding issues of data security and attorney-client confidentiality.

Before addressing those concerns, let’s define the concepts at issue.

“Cloud computing” is a “type of computing that is comparable to grid computing, relies on sharing computing resources rather than having local servers or personal devices to handle applications. The goal of cloud computing is to apply traditional supercomputing power (normally used by military and research facilities) to perform tens of trillions of computations per second.”

Software as a service —or SaaS —is defined at as “[a] software delivery model in which a software firm provides daily technical operation, maintenance, and support for the software provided to their client.”

In my opinion, the data security and confidentiality concerns regarding cloud computing are exaggerated and overblown. 

Of course an attorney has an obligation to research how an SaaS provider will handle confidential information, and should determine how securely the data is stored. It is important to ensure the company stores the data on servers that meet current industry standards, performs back-ups regularly, and that you are satisfied
data will not be lost should a catastrophic event occur.

Concerns that third parties could access the data while traveling through the “cloud” are downright silly, in my opinion. Third parties always have had access to confidential client information, including process servers, court employees, document processing companies, external copy centers and legal document delivery services. 

Employees of the building in which a law office is located also have had access to confidential files, including the cleaning service and other employees who maintain the premises. What about summer interns, temporary employees and contract attorneys?

The employees who manage and have access to computer servers are no different. In order to practice law effectively, third parties necessarily must have access to certain files. Assurances that the company in question will make reasonable efforts to ensure employees will not access confidential information is all that’s required.

The New York State Bar Association Committee on Professional Ethics reached a similar conclusion in Opinion 820-2/08/08, where it answered: “May a lawyer use an e-mail service provider that scans e-mails by computer for keywords and then sends or displays instantaneously (to the side of the e-mails in question) computer-generated advertisements to users of the service based on the e-mail communications?”

The committee concluded: “Unless the lawyer learns information suggesting that the provider is materially departing from conventional privacy policies or is using the information it obtains by computer-scanning of e-mails for a purpose that,
unlike computer-generated advertising, puts confidentiality at risk, the use of such e-mail services comports with DR 4-101...A lawyer may use an e-mail service provider that conducts computer scans of e-mails to generate computer advertising, where the e-mails are not reviewed by or provided to other individuals.”

In other words, common sense prevails. Lawyers must resist the urge to overreact to emerging technologies.

Common sense dictates that the same confidentiality standards applicable to physical client files likewise apply to computer-generated data. To conclude otherwise would be to prohibit lawyers from using computers in their law practices —an unrealistic and, quite frankly, ridiculous alternative.

Getting a Common Law Marriage Recognized in New York

Blawgs Today's Monday guest blog post is from the blog, The Elliot Schlissel New York Law Blog, associated with the The Law Office of Elliot S. Schlissel, a multi-service firm committed to client-focused, cost-effective legal services in the Five Boroughs of New York City, 

If you would like me to consider featuring a recently published New York substantive law post from your blog, please drop me an email at nblack at nicoleblackesq dot com, and include a link to the post and a very brief description of your practice and blog for me to include with the post.


Getting a Common Law Marriage Recognized in New York 

Common Law Marriage Versus Regular Marriage

The majority of states have laws establishing that marriages are only recognized when created with a marriage license and an official marriage ceremony. This is very important because many rights are dependant on the existence of a valid marriage. For instance, only a wife is entitled to an equitable share in the couple’s marital property and only a husband in a valid marriage will  inherit from his wife if she dies without a Last Will and Testament. 

Many situations exist, however, where a couple lives as husband and wife without ever formalizing their relationship with a marriage license and ceremony. This is referred to as a “common law marriage.” The parties will only have marital rights if their common law marriage is valid in one of the few states that still recognize common law marriage. Those states include Pennsylvania, Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah, Ohio, and Florida. 

New York’s Recognition of Out-of-State Common Law Marriages

Even where a couple lives in a state like New York that has abolished common law marriage, if the marriage is valid in a state that does recognizes common law marriage, then New York would recognize the marriage as well,[1] pursuant to the “full faith and credit” clause of the Constitution. 

For instance, if a common law married couple lived in New York, and merely vacationed briefly in a state like Pennsylvania that does recognize common law marriage, New York State courts may very well recognize that marriage as valid.[2] This is because “Pennsylvania [does] not require that the couple reside within its borders for any specified period of time before their marital status will be recognized.”[3] 

Not only that, but “behavior in New York before and after a New York couple’s visit to a jurisdiction that recognizes common-law marriage, like Pennsylvania, may be considered in determining whether the pair entered into a valid common-law marriage while cohabiting, even briefly, in the other jurisdiction.”[4] Evidence of either actual cohabitation in Pennsylvania (like hotel receipts) or the renewal of the private marriage vows in Pennsylvania would still be required.[5]

Because New York only recognizes a common law marriage where that marriage is valid under the laws of a state that validates common law marriage, it is important to understand what the elements of a common law marriage are in that state. This will determine what one must prove in order to have the marriage recognized in New York. Using our Pennsylvania law example, there is one primary requirement that must be met to validate a common law marriage...

(The remainder of this post can be read here.)

NYC Social Media Conference for Lawyers 9/21

On September 21, 2009, in New York City I will be a speaker at Social Media: Risks & Rewards.

This comprehensive, dynamic event will explore the inherent challenges of social media and will arm you with the specific tools necessary to protect your company, your intellectual property and your reputation in today’s virtual world.  Find out how to safeguard yourself and your business through insightful sessions focused on:

  • The Social Media Sensation: Pressure to Keep up in the Digital Age
  • Exposure, Liability and Consequences of Your Business and Social Media
  • Develop your Company’s Corporate Policy for Social Media
  • Protecting your Company’s Identity in a Virtual World
  • Risks from Employees Past, Present and Future
  • Safeguarding your Company’s Intellectual Property
  • Best Practices for Social Media.

Challenges from Social Media are only one inappropriate “tweet” away.  Register for this timely program today and ensure you understand the inherent perils of the market and construct the proper policies to protect your company and ensure future growth.

I will be on this panel: Your Business and the Social Media Sensation.

There is a discount for friends and family (and blog readers). If you want to attend,  just visit the conference website at and use the code SPK for $100.00 off.

Lawyers: Lighten Up!


This week's Daily Record column is entitled "5 responses to technology."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Lawyers:  Lighten Up!

Right now, I’m reading an excellent book by John Medina that explains how the brain best processes information, “Brain Rules: 12 Principles for Surviving and Thriving at Work, Home and School.

I’m in the process of preparing three presentations for CLE seminars in New York City and Los Angeles this fall, all focused on the topic of social media for lawyers. The topic still mystifies many lawyers.

From “Brain Rules,” I’ve learned that, to be effective, presentations should be simple. Studies show learning and subsequent recall is increased if concepts are conveyed in short, concise snippets. Complex concepts should be broken down and convoluted explanations should be avoided at all costs. Otherwise, the audience’s interest is lost instantly.

Likewise, supplemental visual presentations should be simple, with striking, memorable graphics and images. Slides should highlight and complement the material being discussed, rather than provide a complex, detailed road map of the presentation. The brain recalls visual information more readily than any other type and, when used properly, visual presentations can trigger recollections of important concepts long after the presentation.

Interspersing humor throughout a presentation also is a very effective technique. It keeps your listeners interested and assists in highlighting important points you’d like your audience to remember.

Finally, repeating important concepts is imperative to ensuring later recall. An audience needs to hear the same concept a number of times and in a number of different ways; otherwise, the idea will go in one ear and out the other.

The very principles that transform good presentations into great ones can be very difficult to implement effectively in presentations for lawyers, however. To most lawyers, simplicity indicates the subject matter is not lofty enough for their attention and humor, likewise, indicates the topic is not worthy of their consideration.

That is because we lawyers take ourselves far too seriously. Somewhere along the way, most likely in law school, we decided we were very important people who do very important things. To prove that fact, we use big words such as “heretofore” and “aforesaid.”

We gleefully, and with reckless abandon, insert Latin phrases into our written work product, even though we know there are much simpler words available to do the trick.

Lawyers prefer complexity to simplicity. We prefer big words to small. And we absolutely love detailed Power Point slides.

If a presenter doesn’t speak our language and insists on using simple terminology and graphics, we assume immediately the presentation is beneath us.

If the speaker repeats a concept more than once, we deem it insulting to our intelligence.

We find it strangely comforting when the title of a presentation is intricate and complex —the harbinger of the convoluted thought processes that soon soon follow.

We breathe a collective sigh of relief as the first Latin phrase rolls off the speaker’s tongue. The presenter is speaking our language, and we are reassured that we are
very important people who do very important things.

Of course, we immediately check out mentally as soon as we hear that first Latin phrase or compound sentence, since the habits we picked up in law school, while quite impressive, result in an incredibly boring presentation.

We flip through the handouts, surreptitiously check e-mail on our smart phones and remember little, if anything, from the presentation by the following day.

In other words, our egos and training get in the way. Our need for complexity and pretense prevents us from learning something new. It’s such a shame and so unnecessary.

And so, my fellow lawyers —or at least those of you who will be attending my presentations this fall —I implore you: Lighten up! There’s knowledge out there to be had, as more fully set forth, supra.

As testing companies come under scrutiny, City can't keep up

Blawgs Today's Monday guest blog post is from the blog, The New York Personal Injury Lawyer Blog, associated with the Perecman Firm PLLC.  The firm's practice areas include construction accidents, worker's compensation, premises accidents, medical malpractice, automobile accidents and other New York personal injury cases.  

If you would like me to consider featuring a recently published New York substantive law post from your blog, please drop me an email at nblack at nicoleblackesq dot com, and include a link to the post and a very brief description of your practice and blog for me to include with the post.


As testing companies come under scrutiny, City can't keep up

After allegations surfaced that Testwell Laboratories was falsifying the results of its concrete strength tests, the New York City Department of Buildings pledged to retest the concrete in some 60 projects in which Testwell was involved. Now, nearly a year after this plan was announced, The New York Times is reporting that the Department of Buildings has only retested a handful of buildings and will have difficulty increasing the pace of its testing.

New York construction accident lawyers monitoring this situation know that with a new indictment against Stallone Testing Laboratories, the Department's backlog has the potential to get much worse.

Retesting the concrete poses several problems for the agency, most of which stem from the inherent complexity of the task. Each building has its own special considerations and there are no universal standards to guide the Department's retesting efforts. Instead, each project requires consultation with the building's engineers to determine which tests and standards are appropriate for each building.

This detailed work is not only time-consuming - it is expensive. According to the Department of Buildings, it costs about $100,000 to reevaluate a building's concrete, a cost the Department has been passing on to the developers or owners.

Not that the Department has performed much work yet. So far the Department has retested only three buildings - the new Yankee Stadium, Goldman Sachs' headquarters and a section of New York-Presbyterian Hospital. The concrete in all three buildings posed no problem.

Not all of the difficulties in retesting concrete are inevitable. The Department of Buildings' antiquated, paper-based record system is partly to blame for the slow pace of retesting. Essentially, there is no easy or quick way to determine which projects Testwell Laboratories - or any other contractor, for that matter - was involved in. Records at the Department have to be inspected by hand, a ridiculous limitation in an age where computerized relational databases are commonplace...

(The remainder of this post can be read here.)

5 Responses to Technology


This week's Daily Record column is entitled "5 responses to technology."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


5 Responses to Technology

It should come as no surprise to regular readers of my column that I’ve long been dismayed and downright mortified at my profession’s collective refusal to accept and incorporate emerging technologies into the practice of law.

In many ways, the legal profession’s response to technology, and online technologies in particular, can be likened to Kübler- Ross’s five stages of grief: denial, anger, bargaining, depression, and finally, acceptance.

The legal profession’s reaction to technology follows a similar path: denial, defiance, desperation, deployment, and then, at long last, dedication.

A few trailblazers, mostly solos and small firms, have worked through the process and are now reaping the benefits of technology and all that it has to offer. Unfor- tunately, the vast majority of the profession is currently stuck in the middle of the process.


Until very recently, the majority of the legal profession was blissfully clueless about Internet technologies, their collective heads buried in the sand. Most attorneys
seemed to think the Internet was a passing trend, and if they ignored it, it would eventually disappear.

By 2003, however, most lawyers gradually, albeit reluctantly, acknowledged the importance of a Web presence and e-mail correspondence, although a vocal minority steadfastly refused to do so.

Defiance (Anger)

Until very recently, all other forms of emerging online technologies, such as blogs, were first ignored, and later despised.

Lawyers expressed derision when faced with repeated media coverage of the business benefits of online interaction and advertising. Rather than embrace technological change, lawyers predictably and defiantly rejected it.

Desperation (Bargaining)

In the last year, some lawyers entered the desperation phase as they began to sense they were missing out on something big.

Opportunities they didn’t quite comprehend were passing them by. With minimal foresight or understanding, they dove into the world of social media, leaving abandoned, self-promoting blogs and Twitter accounts in their wake. Their hastily executed social media campaigns, launched in desperation, were doomed to fail from the start.

Deployment (Depression)

In the next year or so, a good number of large law firms will realize that, at the very least, it is necessary to understand social media. Large law firms will be the first to engage social media consultants, not just for the purposes of using social
media for marketing, but rather to learn how to successfully navigate social media when a potentially embarrassing situation goes viral. In other words, BigLaw will realize it is imperative to learn how to use and execute social media campaigns for damage control purposes.

At the same time, increasing numbers of solo practitioners and boutiques will begin to actively participate in social media by creating blogs, Facebook accounts, Twitter accounts and establishing attorney profiles on sites such as Justia, Avvo, LinkedIn and JDSupra.

Those attorneys quickly will realize the benefits of marketing on a shoestring budget through targeted social media campaigns. Those who narrowly tailor their social media participation to meet their established goals will begin to see a steady flow of new clients as a result of their efforts.


By the fall of 2011 or so, law firms of all sizes will begin to establish a dedicated social media presence. Mid-sized and large firms, having felt the pinch as solos and small boutique law firms slowly, but surely lured away their client base through the use of successful online marketing plans, will finally succumb to reality.

The legal profession will, at long last, begin the process of accepting that technology and the Internet are here to stay. Lawyers will brush the sand out of their eyes, educate themselves about the future and actively engage potential clients online. The process of working its way through the 5 stages will necessarily be difficult, but the end result will be worth it.

The New York Legal Blog Round Up

Blawgs It's the weekly round up of posts from my fellow New York law bloggers.

I will also occasionally feature a post from another New York law blog each Monday. 

To that end, if you would like me to consider featuring a recently published New York substantive law post from your blog, please drop me an email at nblack at nicoleblackesq dot com, and include a link to the post and a very brief description of your practice and blog for me to include with the post.

And now, this week's round up:

Art Law:

New York Public Personnel Law:

No Fault Paradise:

The CPLR Blog:

Wait a Second!

The New York Legal News Round Up

Latest_news Up next, the round up of New York law-related news headlines from the past week:

Fight the Power, But Time Your Battles Wisely


This week's Daily Record column is entitled "Fight the Power, But Time Your Battles Wisely."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Fight the Power, But Time Your Battles Wisely

Police officers are only human, just as infallible as the rest of us.

They also possess a lot of power, which the bad cops —a relatively small minority —abuse on a daily basis. The rest are just doing their job, which is not an easy one.

Just as I did as a public defender, officers interact with troubled, drug-addicted and mentally disturbed people day in and day out. Like many defenders, after a while they burn out, their patience levels decrease and they become easily aggravated.

That’s why when I encounter a police officer, I get nervous. I make no sudden move- ments, speak politely and do as I’m asked.

That’s also why I cannot, for the life of me, understand Professor Henry Louis Gates’s reaction after he was approached by Police Sgt. James Crowley. Crowley was responding to a 911 call from a concerned neighbor regarding an apparent break in, and Gates admitted he had forced open the front door to the house he was renting.

Any reasonable person who had just engaged in the suspicious act of breaking in to their own home would have quietly and quickly provided the officer with proof that they lived there. Granted, Gates probably did not look like your “average” burglar, given his age, demeanor and dress; however, it was entirely within the realm
of possibility that he was, for example, an angry husband breaking in to his former home in violation of a restraining order. Alternatively, he could have been the victim of a home invasion, with his attackers wielding guns in the background.

The officer had an obligation to investigate the situation.

I was in a similar situation a few years ago, when I was teaching my eldest child about 911. She inadvertently dialed 911 and I quickly hung up the phone. A few minutes later, two Monroe County Sheriff’s Deputies appeared at my door. I assured them everything was fine and that we had dialed 911 accidentally, but I could tell one of the deputies wasn’t quite convinced. I understood his hesitation. It was entirely possible we were being held captive in our home.

As much as I despise police contact and, in spite of my initial gut reaction to refuse law enforcement officers entry into my home —my most sacred zone of privacy —I invited him in to look around. I understood the reason for his concerns.

His intrusion was minimal. He glanced into the family room and saw my kids quietly, calmly watching television. Then he asked where the garage was, approached it stealthily, opened the door and looked around. After observing our demeanor and surroundings, he seemed satisfied everything was fine. He politely thanked me and they left.

As a result of that interaction, I felt safer. The deputies simply were doing their job, and I appreciated their efforts.

I strongly suspect the encounter between Professor Gates and Sgt. Crowley could have ended in much the same fashion had it been handled differently.

There’s a time and a place for just about everything. And the time to express your angst as to how you’re being treated by a police officer generally is after the
encounter has ended.

As Colin Powell explained adeptly when discussing Gates’s arrest on “Larry King Live”: “When you’re faced with an officer trying to do his job and get to the bottom of something, this is not the time to get in an argument with him.”