As more businesses move their IT systems into the cloud, lawyers need to ask if cloud computing is right for their firm. Cloud Computing for Lawyers features a discussion of cloud computing fundamentals, an overview of legal cloud computing products, and step-by-step instructions for implementing cloud computing in your practice--including practical tips for securing your data. This book will help you:
Understand the current state of cloud computing technology
Weigh the risks and benefits of cloud computing
Evaluate legal cloud computing applications like law practice management, billing, time tracking, e-mail, and e-discovery software
Consider the ethical considerations of storing client data in the cloud
Maintain security and privacy for your online data
It will start shipping at the end of this month.
I'll be speaking on at panel at LegalTech New York on January 30th and will have copies with me, so you'll be able to take a look if you happen to attend LegalTech this year.
There will also be a "Meet the Author" session at ABA TechShow on March 30th at 1:45 and copies of the book will be available for purchase at TechShow.
I'm thrilled that this book is now available and am so thankful to all of my friends and colleagues, both online and off, for their support as I wrote this book. Couldn't have done it without you!
This week's Daily Record column is entitled "New York State Ethics Committee On Lawyers Using Groupon-type Services."
A pdf of the article can be foundhere and my past Daily Record articles can be accessed here.
New York State Ethics Committee On Lawyers Using Groupon-type Services
It’s been years since the economy was booming and although the recession is technically “over,” it sure doesn’t feel like it. Which is unfortunate for the legal profession since, when money is tight, the last thing people want to do is hire an attorney unless it’s absolutely necessary. For that reason, competition for those in the market for legal services can sometimes be fierce and many lawyers are seeking to market themselves as creatively as possible in an attempt to attract new clients.
Some are even turning to sites like Groupon, which are online platforms through which local businesses offer group discounts to potential customers. Through these sites, a business can offer customers the opportunity to purchase a service or product at a deeply discounted rate, so long as a minimum number of other patrons agree to purchase the service at that price. If the minimum number of people sign up, then the proceeds from the sale are split between the website and the business offering the discount.
In a previous column, I questioned the wisdom of lawyers using Groupon since, in my opinion, selling legal services alongside spa treatments or car washes does little to enhance the dignity of our profession. Even so, lawyers continue to seek to advertise their services using sites like Groupon and for that reason, in Opinion 897 (12/13/11), the New York State Bar Association’s Committee on Professional Ethics recently grappled with the ethical issues presented when lawyers do so.
One interesting issue considered by the Committee was whether the money retained by Groupon constitutes an improper payment for a referral in violation of Rule 7.2(a). This rule provides, in relevant part, that “(a) lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client.”
The Committee sought guidance from Comment 1 to Rule 7.2(a) which provides that it is permissible for a lawyer to pay for advertising and communications as permitted by the Rules. Accordingly, the Committee concluded that as long as the fees paid to websites like Groupon were reasonable, such fees were ethically permissible, since they are more akin to an advertising fee rather than a referral fee. This is because the website takes no “action to refer a potential client to a particular lawyer – instead it...carrie(s) a particular lawyer’s advertising message to interested consumers and...charge(s) a fee for that service.”
The Committee then examined a number of other ethical quandaries presented by advertising via Groupon, including the need to refund excessive attorney’s fees, compliance with advertising regulations and the risks of forming an improper or premature attorney/client relationship and concluded: “A lawyer may properly market legal services on ‘deal of the day’ or ‘group coupon’ website, provided that the advertisement is not false, deceptive or misleading, and that the advertisement clearly discloses that a lawyer-client relationship will not be created until after the lawyer has checked for conflicts and determined whether the lawyer is competent to perform a service appropriate to the client. If the offered service cannot be performed due to conflicts or competence reasons, the lawyer must give the coupon buyer a full refund. The website advertisement must comply with all of the Rules governing attorney advertising, and if the advertisement is targeted, it must also comply with Rule 7.3 regarding solicitation.”
Thus, although marketing your services via websites like Groupon may not be the most dignified way to advertise your services, doing so isn’t necessarily unethical.
This week's Daily Record column is entitled "Oregon Ethics Board on lawyers, cloud computing."
A pdf of the article can be found here and my past Daily Record articles can be accessed here.
Oregon Ethics Board on lawyers, cloud computing
As cloud computing picks up speed and becomes more commonplace, lawyers are beginning to sit up and take notice. And, understandably, many who are considering using cloud computing services in their law practice wonder about the ethics of using these services, since doing so means that confidential client information is stored on servers owned and maintained by third parties.
As a result, over the last year or two, ethics committees from across the country have issued opinions which address that very issue, including: Professional Ethics Committee of the Florida Bar Op. 10-2 (2011), New York State Bar Association’s Committee on Professional Ethics Op. 842 (2010), Pennsylvania Bar Association Ethics Opinion No. 2010-060 (2010), North Carolina Bar Proposed 2011 Formal Ethics Opinion 6 (2011), and Iowa Committee on Practice Ethics and Guidelines Ethics Opinion 11-01 (2011).
The Oregon State Bar recently joined the pack in December of 2011 when it issued Formal Opinion No. 2011-188 concluded that Oregon attorneys may store client materials a third-party servers as long as there is compliance with the Oregon Rules of Professional Responsibility’s duties of competence and confidentiality which require lawyers to take reasonable steps to ensure the security of confidential client information.
According to the opinion, the reasonable steps that must be taken to ensure the security and confidentiality of client information include: “(E)nsuring the service agreement requires the vendor to preserve the confidentiality and security of the materials. It may also require that vendor notify Lawyer of any nonauthorized third-party access to the materials. Lawyer should also investigate how the vendor backs up and stores its data and metadata to ensure compliance with the Lawyer’s duties.”
Of course, technology changes rapidly these days and cloud computing services are no exception. The method of delivery of the cloud computing services, the location of the servers, and the security measures used to protect the data stored on the third party servers may change at any time. Accordingly, it is imperative that lawyers stay abreast of the changing nature of the cloud computing services provided to their law firms.
This fact was acknowledged in the opinion and of import was the emphasis placed on the continuing obligation of attorneys to reevaluate the security measures used by a cloud computing vendor: “Although the third-party vendor may have reasonable protective measures in place to safeguard the client materials, the reasonableness of the steps taken will be measured against the technology ‘available at the time to secure data against unintentional disclosure.’ As technology advances, the third-party vendor’s protective measures may become less secure or obsolete over time. Accordingly, Lawyer may be required to reevaluate the protective measures used by the third party vendor to safeguard the client materials.”
Compared to some of the opinions issued by other ethics committees, the Oregon opinion provided less detailed guidance for attorneys considering a move to the cloud.
But, that’s not necessarily a bad thing because, as acknowledged in the opinion, technology changes rapidly. Committees that choose to impose upon attorneys very specific requirements relating to current technology limit the longevity and applicability of the opinion, quickly rendering it obsolete. The wiser course is to follow the Oregon Bar’s example and draft an opinion that offers elastic, broadly framed guidelines that will apply to future technological advances and thus withstand the test of time.
This week's Daily Record column is entitled "Virtual Law Offices: California Weighs In."
A pdf of the article can be found here and my past Daily Record articles can be accessed here.
Virtual Law Offices: California Weighs In
Virtual law offices are a relatively new, emerging concept, but fortunately for legal practitioners, a number of ethics committees are slowly but surely addressing the ethical issues surrounding the practice of law via an online portal.
Most recently, in November 2011, the State bar of California Standing Committee on Professional Responsibility and Conduct addressed the ethics of maintaining a virtual law office in a draft formal ethics opinion (No. 10-0003) (See: www.calbar.ca.gov/Portals/0/documents/publicComment/2012/). This proposed opinion was handed down on November 5th and then opened up for a 90-day public comment period.
The issue considered by the Committee was whether “an attorney (may) maintain a virtual law office practice (“VLO”) and still comply with her ethical obligations, if the communications with the client, and storage of and access to all information about the client’s matter, are all conducted solely through the internet using the secure computer servers of a third-party vendor (i.e., “cloud computing”).” Before addressing the ethical issues posed by VLOs, the Committee acknowledged that the cloud-based technologies used by VLOs are similar to the cloud computing software used by some traditional law offices and thus its many of its conclusions in the opinion applied equally to VLOs and brick and mortar offices using cloud computing services. However, because the hypothetical VLO at issue was solely virtual with no brick and mortar components, it presented unique ethical issues which would require due diligence considerations specific to VLOs.
In particular, the VLO practitioner must exercise reasonable care in ensuring that confidential client information is adequately protected from disclosure to unintended third parties. Of note, however, was that while technological expertise on behalf of the attorney was not required, it was essential that any attorney wishing to use cloud computing tools in their law practice have a basic understanding of the technology. As the Committee explained, “(W)hile Attorney is not required to become a technology expert in order to comply with her duty of confidentiality and competence, Attorney does owe her clients a duty to have a basic understanding of the protections afforded by the technology she uses in her practice.”
The Committee listed a number of factors that an attorney must address when choosing a VLO cloud computing provider, including: 1) the credentials of the vendor, 2) data security issues, 3) whether the cloud vendor will transmit client data across jurisdictional boundaries, 4) the attorney’s ability to supervise the vendor, and 3) the terms of the contract with the vendor. The Committee stressed that these obligations are continuing and the attorney must continue to reassess these issues, as needed, throughout the term of the contract with the vendor.
The Committee also advised that client consent regarding the storage of client data on a third party server was not required in regard to the hypothetical VLO discussed in the opinion, since that system was password protected and encrypted, and each client was permitted access only to his or her own matter. However, the Committee cautioned that a different type of VLO set up might require client consent, as might changing security standards over time, and thus the issue of client consent must be carefully considered based on the specific technology set up of the VLO each time an attorney establishes a virtual law practice.
The Committee also addressed, at length, the unique ethical issues presented by the delivery of legal services through a VLO. These obligations include ensuring that the intake process provides both the attorney and the client with sufficient information regarding legal services to be provided and the scope of representation. The attorney must also ensure that the client has an understanding of and access to sufficient technology to support representation via the VLO. Finally, the attorney has an obligation to keep the client sufficiently informed of the status of the matter and to adequately supervise “subordinate attorneys, and non-attorney employees or agents” even if those employees operate out of different physical locations.
All in all, this proposed opinion provided a very thoughtful and detailed analysis of the ethical issues presented when an attorney establishes a virtual law practice.
The only aspect of the opinion that troubled me was the suggestion that, in some cases, lawyers who outsourced the storage of confidential client data to third party providers might need to obtain client consent prior to doing so. Client consent is generally not a requirement when attorneys outsource the storage or handling of confidential client data in paper format, such as when storing old paper files in a warehouse or providing a process server with confidential documents. Electronic data should be treated no differently simply because the confidential information is stored in a different format. The suggestion that, in some cases, it might be treated differently in the future does not bode well for cloud computing and sets dangerous precedent.
That being said, aside from that one issue, this is a well thought out opinion that provides legal practitioners with a helpful overview of the ethical issues presented by VLOs and offers useful guidance for attorneys considering establishing this type of law practice.
This week's Daily Record column is entitled "New York Ethics Committee on Lawyers’ Use of Social Media During Trials."
A pdf of the article can be found here and my past Daily Record articles can be accessed here.
New York Ethics Committee on Lawyers’ Use of Social Media During Trials
Despite the rise in social media use by the general population, many lawyers continue to be reluctant to use social media to support their law practices. Nevertheless, widespread social media use is a phenomenon that is becoming increasingly difficult for lawyers to ignore, as social media issues repeatedly crop in their cases.
For example, in a December column I discussed two New York criminal cases which focused on whether contact via social media websites constitutes a crime and in a November column, I analyzed two New York civil cases which addressed the issue of lawyers mining social media sites for evidence.
Social media use is also affecting jury trials and one interesting issue that has arisen is whether it is ethically permissible for lawyers to investigate jurors’ use of social media during the pendency of a trial and what lawyers must do if misconduct is discovered. The New York County Lawyers’ Association Committee on Professional Ethics addressed that very issue in Formal Opinion No. 743.
At the outset, the Committee cited RPA 3.5, which prohibits contact with jurors during the pendency of trials. The Committee explained that pursuant to RPA 3.5 it is ethically permissible for attorneys to conduct research and follow a jurors’ social media interactions only if the jurors are unaware the monitoring. In other words, lawyers may only passively follow a juror’s public social media interactions and may not take any actions that would make the jurors aware of their efforts.
So that means lawyers must ensure that jurors receive no notifications regarding the monitoring, thus precluding them from making a “friend” request of an individual juror on Facebook, “following” a juror on Twitter (since Twitter users are notified of new followers), signing up for a juror’s blog’s RSS feed via an email subscription, or visiting a juror’s LinkedIn profile (since LinkedIn provides users with information regarding those who recently viewed their profile).
Another ethical issue that lawyers may encounter when monitoring jurors’ social media use is the discovery of juror misconduct. In that case, if a lawyer discovers that a juror has violated the court’s instructions through the use of social media, then RPC 3.5 requires that the lawyer immediately report the misconduct to the court.
Importantly, as the Committee explained, a lawyer may not use knowledge of the misconduct to benefit his or her client’s case: “Further, the lawyer who learns of improper juror deliberations may not use this information to benefit the lawyer's client in settlement negotiations, or even to inform the lawyer's settlement negotiations. The lawyer may not research a juror's social networking site, ascertain the status of improper juror deliberations and then accept a settlement offer based on that information, prior to notifying the court. Rather, the lawyer must "promptly" notify the court of the impropriety—i.e., before taking any further significant action on the case.”
The Committee also clarified that lawyers have no ethical obligation to monitor jurors’ social media activities, but should they choose to do so, must notify the court of any improprieties discovered.
Thus, the decision to monitor jurors’ social media use during trial is a strategic one and requires careful consideration prior to its implementation, since information discovered could result in a mistrial or otherwise disrupt the proceedings. Similarly, if you decide to track jurors’ online interactions, it is important to have a thorough understanding of the various social media platforms, lest you inadvertently violate your ethical obligations by triggering a notification or otherwise notifying a juror of your monitoring efforts.
In other words, the lesson to be learned from this ethics decision and the social media cases that I have written about in recent months is that, nowadays, in order to be an effective lawyer, it is important to have a full understanding of the major social media platforms, including your ethical obligations when using them, so that you can ascertain how their use may impact your client’s case. The failure to do so could arguably amount to malpractice.