Sui Generis--a New York law blog

A New Law Blog: Small Firm Innovation

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Innovative lawyers. Two words that seem like an unlikely pair. At least, that's how it used to be.

But lately, small firm lawyers are changing that assumption. This is because these lawyers are uniquely positioned to innovate. Their smaller size allows them greater flexibility. Small firms lawyers are better able to respond to market changes, advances in technology and the demands of legal consumers. These lawyers are more willing to learn about and take advantage of emerging technologies or newfound practice management theories and are changing the ways in which legal services are delivered to consumers.

If you'd like to learn more about how solos and small firms are changing the practice of law from the ground up, look no further than Small Firm Innovation. It's the newest group legal blog on the block, sponsored by Clio (a company that provides SaaS-based law practice management software), and focuses on the innovativeness of solos and small firm lawyers.

It's a really interesting blog and I'm proud to be a part of it. I post bi-weekly. Here are a few of my most recent posts:

• My First Jury Trial
• My First Glimpse Into the Future
• It's the Little Things That Matter

Head on over and check it out. There are a ton of great posts by a multitude of authors. It's a great resource, with lots of useful information.

 

 

Do lawyers have a duty to supervise cloud computing providers?

This week's Daily Record column is entitled "Do lawyers have a duty to supervise cloud computing providers?."

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

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Do lawyers have a duty to supervise cloud computing providers?

In a column that I wrote last October, I explained that American Bar Association’s Commission on Ethics 20/20 was eliciting comments on the issue of whether the Model Rules of Professional Conduct 5.3 should be revised to incorporate the concept that lawyers should be required to “supervise” cloud computing providers, just as lawyers are required to supervise other non-lawyer assistants such as paralegals.

By way of background, the Commission on Ethics Committee was established in 2009 (online at www.abanet.org/ethics2020) and the stated purpose of the Commission is to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”

In the letter calling for comments on this issue, the Committee explained that it welcomed “feedback on the extent to which procedures outlined in ABA Formal Ethics Opinion 08-451 (describing a lawyer’s obligations when outsourcing work to lawyers and non-lawyers) should apply in the cloud computing context.”

In Opinion 08-451, it was suggested that “to minimize the risk of potentially wrongful disclosure, the outsourcing lawyer should verify that the outside service provider does not also do work for adversaries of their clients on the same or substantially related matters; in such an instance, the outsourcing lawyer could choose another provider.”

In my prior column on this issue, I expressed alarm at the idea that lawyers might have a duty to “supervise” cloud computing providers since there is a fundamental difference between outsourcing legal and administrative functions and outsourcing data management and storage to online legal service providers given that most lawyers simply do not have the IT qualifications to oversee tasks like computer programming, encryption, data storage, and the delivery of said services. I also submitted comments to the Commission outlining my concerns in this regard.

Last week the committee released its initial draft proposals (which are available for further comment through July 15, 2011) regarding the proposed amendment to Rule 5.3. The gist of the rule is that lawyers are required to make reasonable efforts to ensure that non-lawyers retained by the firm provide services consistent with lawyers’ professional obligations.

The Committee proposed revising the title of Rule 5.3 from “Responsibilities Regarding Nonlawyer Assistants” to “Responsibilities Regarding Nonlawyer Assistance.”

Aside from the minor change to the title, the rule stayed the same.

However, the comments to the rule were revised substantially to include the following language in proposed Comment [3], which addresses an attorney’s obligations when outsourcing tasks to a non-lawyer such as a cloud computing provider:

“[3] When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality…When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer.”

Following the suggestions of proposed changes to the Model Rules and comments to the Rules, the Committee provided an explanatory report that outlined the basis for its proposed revisions. In that report, the Committee described the rationale behind the proposed changes to the Comment regarding Rule 5.3:

“The last sentence of Comment [3] emphasizes that lawyers have an obligation to give appropriate instructions to nonlawyers outside the firm when retaining or directing those nonlawyers. For example, a lawyer who instructs an investigative service may not be in a position to directly supervise how a particular investigator completes a particular assignment, but the lawyer’s instructions must be reasonable under the circumstances…” (Emphasis added).

Given my previously expressed concerns, I was happy to note that the Commission limited the scope of an attorney’s duty to oversee the activities of non-lawyers retained to provide services on behalf of the firm. The italicized section is particularly important since it acknowledges that lawyers may not always have the necessary expertise to supervise non-lawyers, depending on the services provided.

However, I do hope that the italicized language will be included in the Comments to the final version of Model Rule 5.3 as opposed to the comments explaining the proposed revisions. I fear that the failure to include the italicized language in the Comments will result in a rule that provides insufficient guidance for lawyers who are unsure of their obligations in regard to overseeing the services provided by cloud computing providers.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

Related articles

• Maintaining confidentiality in the information age (nylawblog.typepad.com)
• Cloud Computing and the Encryption Red Herring (nylawblog.typepad.com)
• Confidentiality, Smart Phones and Lawyers, oh my! (nylawblog.typepad.com)
• Cloud Computing for Lawyers: Back to the Basics (nylawblog.typepad.com)
• Cloud Computing for Lawyers: Billing in the Cloud (nylawblog.typepad.com)

Maintaining confidentiality in the information age

This week's Daily Record column is entitled "Maintaining confidentiality in the information age."

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

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Maintaining confidentiality in the information age

Maintaining the confidentiality of digital data—it’s an ever-present conundrum for lawyers as cloud computing increases in popularity and mobile use becomes ubiquitous. In fact, for many lawyers, the thorny ethical issues presented by these technologies, including housing client data on servers owned and maintained by others, is one of the main reasons behind their reluctance to use cloud computing products in their practices

The lack of guidance from bar associations, caused in large part by the relative newness of the technologies, has also contributed to hesitancy regarding cloud computing.  It’s only been over the past few years that a handful of ethics committees have issued decisions regarding the use of cloud computing products and lawyers’ obligations in regard to client data stored in the cloud or on mobile devices.

Overall, the opinions, have reached similar conclusions centered around requiring lawyers to make reasonable efforts to maintain confidentiality when storing client data on third party servers, whether cloud-based or not. See, for example, Professional Ethics Committee of the Florida Op. 10-2 (2011), North Carolina Bar Proposed 2011 Formal Ethics Opinion 6 (2011), New York State Bar Association’s Committee on Professional Ethics Op. 842 (2010), Arizona State Bar Committee on Rules of Professional Conduct, Opinion 09-04 (2009), N.J. Supreme Court Advisory Comm. on Prof’l Ethics, Op. 701 (2006) and Nev. State Bar Standing Comm. on Ethics & Professional Responsibility Formal Op. 33 (2006).

So, although the list isn’t extensive, the number of jurisdictions that have considered these issues is slowly, but surely, increasing. In fact, it appears that additional guidance is on the horizon—this time from the American Bar Association’s Commission on Ethics 20/20. As I explained in past columns, this committee was established in 2009 (online at www.abanet.org/ethics2020) and the stated purpose of the Commission is to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”

Last week the committee released its initial draft proposals (which are available for further comment through July 15, 2011) regarding a number of different issues, including confidentiality when outsourcing, which I’ll discuss in next week’s column, and confidentiality-related obligations when using technology, which I discuss below.

The committee is proposing that Rule 1.6, which addresses confidentiality of information, of the ABA Model Rules of Professional Conduct be amended and that subsection (c) be added to the rule. The proposed subsection (c), which mimics the language used by other jurisdictions that have addressed this issue, reads as follows: 

(c) A lawyer shall make reasonable efforts to prevent the inadvertent  disclosure of, or unauthorized access to, information relating to the representation of a client.

The proposed comment that would follow the new subsection explains what steps a lawyer must take in order to meet the obligation of making “reasonable efforts” to maintain confidentiality:

Acting Competently to Preserve Confidentiality

Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons or entities who are participating in the representation of the client or who are subject to the lawyer’s supervision or monitoring. See Rules 1.1, 5.1 and 5.3. Factors to be considered in determining the reasonableness of the lawyer’s efforts include the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, and the cost of employing additional safeguards. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules.

This rule comports with the conclusions reached by other jurisdictions and provides useful guidance in the form of broadly framed, elastic standard that assists attorneys in making careful choices about the technologies that best fit their individual practices.

All in all, this proposed rule is encouraging and I applaud the committee for their efforts. Next week, I’ll discuss the committee’s recommendations regarding maintaining confidentiality when outsourcing tasks related to client matters, which includes the use of cloud computing services, so stay tuned.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

Droid Apps for Lawyers

This week's Daily Record column is entitled "Droid Apps for Lawyers."

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

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Droid Apps for Lawyers

An online reader asked me to write an article about apps for lawyers who use Android phones. I thought it was a great idea, especially since I’ve been predicting for the last few months that Android-based phones will eventually outsell iPhones—perhaps within the next year.

Many of the more popular iPhone apps that I’ve discussed in past articles are cross-platform apps and are also available on Droids, so I’ll focus on Droid-specific apps in this article. Since I don’t own a Droid, I relied on online resources and recommendations from my online network in curating this list.

Rather than listing in this article the lengthy URLs where apps can be purchased at the online Android Market, I created, for your reference, a list that includes links to these apps, which can be found here.

First up, DroidLaw is a free app that includes the full texts of the Federal Rules of Civil Procedure, Evidence, Appellate Procedure, Criminal Procedure, and Bankruptcy Procedure. Each set of rules is provided in a format that permits searching, bookmarking, copying, sharing and note taking.

Next up, Time Tracker ($3.99), an app that facilitates hourly billing. Using the app you can enter and track your time, edit the time reports, and export the data into a custom CSV report.

Another useful app is the Law Guide, a free app provided by Law.com that offers a number of features including a legal dictionary and access to legal forms.

Also worth considering is the Lawyer’s Calendar Buddy Pro ($2.69), which offers a number of useful features, including the ability to calculate a target date from a given start date, store key case events, and list events between two dates after excluding holidays.

In addition to the legal specific apps, there are a few general purpose apps worth mentioning that lawyers will likely find useful.

First, there’s the free Voice Recorder app for Android, which allows you to record, save and email audio files.

File manager apps are always useful on smart phones since they permit the organization of all of your files in once place on your phone, and the free Droid app aptly named “File Manager” allows you to do just that.

As lawyers, we spend a lot of time revising and editing documents, so apps that allow the viewing and annotation of PDFs are very useful tools. RepliGo reader is a great app for this purpose and costs just $4.99.

Next up, an app that was just released last week, Google Apps for Android. It’s a free native application that offers the useful feature of allowing photos of documents to be converted into fully editable documents.

Documents to Go 3.0 is another app to consider. There is a free version of this app available that facilitates the opening and editing of most file formats, including Microsoft Word, Excel and PowerPoint files.

Another useful app is PdaNet, a free app that allows you to tether your Android device to your laptop.

Finally if you’re looking for a great resource for lawyers who use Droids, look no further than the very useful blog “The Droid Lawyer” (http://thedroidlawyer.com/). I became aware of this blog after its author, attorney Jeffrey Taylor, was kind enough to respond to a request I made of my online followers for recommendations for Droid apps for lawyers.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].