Sui Generis--a New York law blog

ABA Further Examines Lawyer Ethics, Technology.

This week's Daily Record column is entitled "ABA Further Examines Lawyer Ethics, Technology."

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

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ABA Further Examines Lawyer Ethics, Technology.

In a column that I wrote last September, I explained that American Bar Association’s Commission on Ethics 20/20 was eliciting comments on the issue of how lawyers’ use of Internet-based client development tools, such as social media, should be regulated.

By way of background, the Commission on Ethics Commission 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 my prior column on this issue, I took issue with a few aspects of the letter calling for comment and submitted comments to the Commission outlining my concerns in this regard. 

One of my concerns was the Commission’s suggestion that “given that such activities often have both a personal and advertising purpose,” online interactions by lawyers might require more regulation than offline interaction by lawyers. I explained that whenever attorneys interact, whether online or offline, the possibility exists that the interaction will have both a personal and marketing purpose. Thus, the rules as they existed were sufficient to govern such conduct. This was because online interaction is simply an extension of offline interaction. It did not, by virtue of its unique format, merit a separate category requiring additional, more stringent oversight. 

Last month the Commission released its initial draft proposals on the issue of lawyers’ use of technology and client development (which are available for further comment through August, 2011) (online at http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20.html).

I’m encouraged by the Commission’s overall conclusion—that online interactions do not merit new, separate rules. Rather, as explained in the Commission’s letter accompanying the Report: “As the accompanying report explains, the Commission concluded that no new restrictions are necessary in this area, but that lawyers would benefit from more guidance on how to use new client development tools in a manner that is consistent with the profession’s core values. To that end, the Commission is proposing amendments to Rules 1.18 (Duties to Prospective Clients), 7.2 (Advertising), and 7.3 (Direct Contact with Prospective Clients) that would clarify how lawyers can use new technology to disseminate important information about legal services and develop clients.”

As for the specific suggestions, the Commission’s proposed amendments to Model Rule 1.18 attempt to clarify when electronic communications may result in a prospective client-lawyer relationship and also suggest a number of steps that lawyers should take to prevent the inadvertent creation of an attorney-client relationship.

The proposed amendments to Model Rule 7.2 attempt to provide guidance to lawyers using online tools and referral services to market their practice. The Commission added new language to Comment [5] of the rule to better define the term “recommending” and thus make it clear that online forms of lead generation such as “pay-per-click” or “pay-per-lead” are permissible as long doing so is consistent with an attorney’s professional obligations. Comment [6] was also amended to clarify that the division of legal fees with “pay-per-clikc” or “pay-per-lead” lawyer referral services is permissible.

Finally, the Commission proposed that Rule 7.3 be amended to include a new comment that would offer a clearer definition of solicitation. Specifically, the new comment would clarify that communications constitute a solicitation if the lawyer “offers to provide, or can be reasonably understood to be offering to provide, legal services to a specific potential client.” Another proposed amendment to Comment [3] explains that lawyers are not “soliciting” when responding to requests for information, whether in person or online.

All in all, I’m pleased with the way that the Commission approached these issues. Importantly, the Commission acknowledged that online interactions by attorneys do not warrant separate rules. Rather, the existing rules are sufficient, and need only slight modification to provide guidance to attorneys seeking to use online tools for marketing purposes.

Their implicit conclusion that attorneys’ online interactions are an extension of offline activities is a noteworthy step in the right direction, since the ABA’s ethical rules and decisions, while not binding, set the tone and provide guidance to other jurisdictions facing these issues.

A good take away from the announcement of the proposed amendments is that if your intended course of action online reminds you of conduct that would otherwise be unethical offline, it probably is. So, if you’re unsure whether your intended course of action is ethical, don’t do it.

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].

 

Cloud computing for lawyers, tips for solos, a book signing and more

Image via Wikipedia

If you're running short on reading material, here are links to a few of my recent posts elsewhere.

First up, at the Xemplar, a website featuring innovative solos and small firm attorneys:

• David Mills: A Supreme Solo
• Innovative Solo and Small Firms--The Future of Our Profession
• Bill Marler: A Personal Injury Attorney--and More
• Solos: Consider a Niche Practice
• Cyrus Mehri: Leveling the Playing Field, One Lawsuit at a Time
• Top 5 Lessons from Xemplar Attorneys

Next up, my posts at the Small Firm Innovation Blog:

• Transitioning Your Law Firm to the Cloud
• Old School Networking Never Goes Out of Style
• 3 Things Lawyers Should Know about Cloud Computing
• I Heard About Blogging on NPR…

Also, I'll be speaking on social media for lawyers at the ABA's Annual Meeting in Toronto on August 4th at 3:45. Also, my co-author Carolyn Elefant and I will hold a book signing for our book, Social Media for Lawyers: The Next Frontier, on August 5th at noon at the Law Practice Management Section Exhibit (Booth #205) at the ABA EXPO in the Metropolitan Toronto Convention Centre (255 Front Street West).

If you're attending the annual meeting, let me know--I'd love to connect! And hope to see you at the book signing!

Finally, this Friday, July 22nd, I'm speaking about social media for lawyers for the Erie County Bar Association. You can sign up for the CLE here. If you're in Buffalo, NY, I hope to see you there!

 

California Ethics Committee on Social Media Mining

This week's Daily Record column is entitled "California Ethics Committee on Social Media Mining."

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

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California Ethics Committee on Social Media Mining

For trial attorneys, social media sites have the potential to be a treasure trove of evidence. However, as is the case with any type of pre-trial discovery and evidence gathering, information gleaned from online profiles must be obtained ethically.

Very few ethics committees have addressed issues related to mining social media sites to locate information to support pending cases, in large part because social media is a relatively new phenomenon.

 However, prior to May of this year, when the San Diego County Bar Association Legal Ethics Committee issued its recent decision on social media data mining, a few ethics committees had tested the waters. Although the opinions addressed different issues, the cornerstone of each conclusion was that attorneys must avoid engaging in deception when attempting to obtain information via social media sites from parties to litigation.

One decision addressed the issue of whether public social media profiles can be mined for evidence, while the other two considered whether it was ethical to “friend” an unrepresented party to litigation.

First, in Opinion 843 [9/10/10], the New York State Bar Ethics Committee concluded that as long as a lawyer does not engage in deception to obtain access to a social media network, the lawyer may ethically access a party’s public social media profiles to obtain evidence for use in pending litigation.

Next, in Formal Opinion 2010-2, the New York City Bar Association Ethics Committee determined that an attorney may, directly or through an agent, “friend” an unrepresented party to litigation without disclosing the reason for the request, but “(r)ather than engage in “trickery,” lawyers can — and should — seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful “friending” of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual’s social networking page.”

And, in Opinion 2009-02, the Philadelphia Bar Association Professional Guidance Committee addressed the very same issue regarding sending a friend request to an unrepresented party and concluded that an attorney or agent may not “friend” an unrepresented person (as opposed to a party) on a social networking site with the intent to obtain evidence from their social media profile for use in pending litigation without first disclosing the purpose of the friend request.

However, until recently, there were no ethics opinions addressing the issue of whether an attorney or agent may “friend” a party to pending litigation. But in May of this year, the San Diego County Bar Association Legal Ethics Committee did just that in Opinion 2011-2. The Committee concluded that sending a “friend” request to a represented party is impermissible under any circumstances and is permissible in regard to an unrepresented witness only if the reason for the communication is disclosed:

“(The) rules bar an attorney from making an ex parte friend request of a represented party. An attorney’s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party. We have further concluded that the attorney’s duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request. Represented parties shouldn’t have “friends” like that and no one – represented or not, party or non-party – should be misled into accepting such a friendship.”

Thus, in keeping with opinions that preceded it, the San Diego Ethics Committee likewise stressed that when mining social media sites for evidence, deception should be avoided at all costs, which makes sense. Lawyers are prohibited from engaging in deception when seeking to obtain evidence offline and the same rules should apply to conduct occurring online.

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].

Cloud computing and the upending of Grove's Law

This week's Daily Record column is entitled "Cloud computing and the upending of Grove's Law."

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

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Cloud computing and the upending of Grove's Law

(This is part 4 of a series of articles in which I discuss the technologies and the historical context that led to the mass adoption of cloud computing. In the first article, our exploration began in 1995. Then in Part 2 of this series, we learned about how the technology changed, making the Internet revolution, and life as we now know it, possible. Last week, we examined how the rapid increase in the speed of broadband access paved the way for cloud computing and this week we continue that journey.)

Over the past few weeks, we’ve explored the explosion of the Internet and the rapid technological changes that followed. We tracked the effect that widely available Internet access has had upon our culture as a whole.  People now interact online in ways never before possible. The Internet has changed the ways in which we work and play. It has drastically changed our reality in just 15 short years, making activities that were once only science fiction commonplace—activities like video conferencing, telecommuting, and online commerce.

Before the Internet, none of this was possible. And, as I noted previously, the key to making these possibilities a reality was the realization of Moore’s Law, which predicted that the price of computing processing power would be reduced by half every two years. This prediction quickly became reality, and as it did, and processing power became increasingly affordable, the Internet became and integral part of our lives.

It was the operation of Moore’s Law combined with the lack of realization of another law, however, that made cloud computing possible. This “law” is referred to as Grove’s Law and predicted that telecommunications bandwidth would double just once every century. Grove’s Law is based on Grove’s observation that, historically, computing processing power increased far more quickly than communications bandwidth. Accordingly, he predicted that, based on past performance, the communications network would develop at a snail’s pace compared to processing power.

As it turns out, Grove was wrong. He didn’t take into account the forces that would result in the sudden and rapid expansion of the communications network. He had no way of knowing that the dot.com boom would occur. Because of all the fiber-optic cable put into place before the economic crash, Internet bandwidth is no longer lacking.

Fast data transfers over the Internet are now a possibility—hence the rise of YouTube and other video streaming services. Before the Internet bandwidth expansion, viewing videos online was a slow, frustrating endeavor. However, with the current abundance of fiber-optic cables, broadband is now cheap and widely available. Data can be quickly transferred over the Internet, and this change has thus ushered in the next stage of the Internet and the age of cloud computing.

Nicholas Carr explains the reversal of Grove’s Law in his book, “The Big Switch”:

“Now that data can stream through the Internet at the speed of light, the full power of computers can finally be delivered to users from afar. It doesn’t matter much whether the server computer running your program is in the data center down the hall or in somebody else’s data center on the other side of the country. All the machines are now connected and shared—they’re one machine.”

Of course, that’s all well and good, but why even bother with cloud computing? Why not simply stick with the status quo: buy, house and maintain your own servers and software? The reason is that, for many businesses, the Cloud is simply a more convenient, flexible and economical alternative.

Obviously, the computing landscape is changing and it’s changing quickly. If you’ve read the articles in this series that preceded this one, that much should be clear to you by now. It’s easy to appreciate such an enormous shift once you’ve gained an understanding of the big picture.

Cloud computing is the next stage of computing.  It’s here—and it’s here to stay.

The only question that remains is when, and how, are you going to use it in your law practice?

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

• The Internet Revolution-Part 3 (nylawblog.typepad.com)
• The Internet Revolution-Part 2 (nylawblog.typepad.com)
• The Internet Revolution Part 1 (nylawblog.typepad.com)

For the record: Google+ is the next big thing

Image via CrunchBase

I've been predicting for at least 6 months  that's it's high time for the next big thing in social media. In such a highly and quickly evolving arena, it's seemed very strange to me that the landscape has remained fairly static for a few years now.

Since 2008, it's really been the big 3: Facebook, Twitter and LinkedIn. The ways that people have used these platforms has changed and the membership of these platforms has rapidly increased. But, the players haven't changed.

For the past year or two, Google has tried to change things up--with Buzz and Wave--but neither did the job. Once I had a chance to try each one out, I quickly lost interest. My gut instinct told me that neither one was "it"--the next big thing.

Google+ is an entirely different story, however. Last Tuesday, I was lucky enough to receive an invite from Tim Stanley of Justia (Thanks Tim!) the day after it was released in beta. Within minutes of signing up and playing around with it, I knew Google had gotten it right this time around.

Compared to Buzz and Wave, people are flocking to Google+--and using it--in droves (all things considered). There is constant activity and discussion. This is occurring because there's something about user interface that just works. It's fairly intuitive and the interface is simple and uncluttered.

But what truly makes it different and will make it most appealing to lawyers and other professionals is the Circles. Google+ makes it east for you to group the people that you share with into circles. So when you post something, you can make it visible only to your chosen Circles of users.

This arguably solves the dilemma that many lawyers have encountered in regard to interacting with clients on social media. It also makes it easier for lawyers to share more "lawyerly" posts, which can be too technical for most followers, with only others in the legal profession. It's the perfect solution for lawyers.

The bottom line--my gut tells me Google+ is the next big thing I've been waiting for. Only time will tell if I'm correct. And in the meantime, it'll be interesting to sit back and watch as this social network develops. It sounds like there are a lot of new tools and features that will be released in the very near future.

So, tune in tomorrow and see what happens! And if you'd like an invite, DM me on Twitter or FB with your email address and I'll try to send you one via a work around that I discovered. It works most of the time, but seems to work best if you already have a Google profile set up.

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].