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Supreme Court of Florida weighs in on judges using social media

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

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Supreme Court of Florida weighs in on judges using social media

Whether judges should use social media has been a contentious issue for some time now. Early on, the consensus seemed to be that it was problematic for judges to do so, but over time that’s changed.

So, for example in 2012, Florida’s Fourth District Court of Appeal addressed this issue in Pierre Domville v. State of Florida, No. 4D12-556 and disqualified a judge from overseeing a case because the judge was Facebook “friends” with the prosecuting attorney. But then in August of this year, the Third District Court of Appeal in Florida in in Law Offices of Herssein and Herssein v. United States Automobile Association, No. 3D17-1421 addressed the very same issue and reached a different conclusion. The court determined that it was departing from the holding in Domville and was declining to disqualify a judge as a result of his Facebook connnection with an attorney appearing in his court, since online friends are “not necessarily (friends) in the traditional sense of the word” and thus the fact that a judge is Facebook ‘friends’ with a lawyer for a potential party or witness does not necessarily mean that the judge cannot be impartial.

Just last week, the Supreme Court of Florida considered this case on appeal in Herssein and Herssein v. United States Automobile Association, No. SC17-1848. At issue was whether the lower court correctly determined that a Facebook friendship between a judge and an attorney appearing for the judge was not, in and of itself, a sufficient basis for disqualification of the judge.

In reaching its decision, the court first examined the concept of a “friendship,” explaining that simply being friends with someone does not indicate the level of closeness of the friendship: “It is commonly understood that friendship exists on a broad spectrum: some friendships are close and others are not...Thus the mere existence of a friendship, in and of itself, does not inherently reveal the degree or intensity of the friendship.”

Next, the Court applied this understanding to the concept of a Facebook “friendship” and concluded that not all Facebook friendships between a judge and an attorney appearing in their court require disqualification. The court examined the nature of Facebook connections, explaining that “(t)he establishment of a Facebook ‘friendship’ does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship’...(and) it is regularly the case that Facebook “friendships” are more casual and less permanent than traditional friendships.”

Accordingly, the Court reached the same conclusion as the majority of other jurisdictions that have recently addressed this issue and held that a Facebook friendship, in and of itself, was insufficient to warrant disqualification: “(T)he mere existence of a Facebook ‘friendship’ between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook ‘friends’ with a relationship of an indeterminate nature.”

This is, I believe, the correct decision. As I’ve opined in the past, judges are simply people and have lives outside the courtroom which include friendships with attorney colleagues that pre-date their appointment to the bench. It flies in the face of common sense to issue decisions that prevent judges from interacting on social media with the very same lawyers with whom they are already connected and with whom they regularly interact in public. It’s heartening to see that the Florida Supreme Court agrees with this position and has issued a ruling that aligns with the realities of living in the 21st century.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist 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 niki.black@mycase.com. 


Two paths for 21st-century law firms: innovation or extinction

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

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Two paths for 21st-century law firms: innovation or extinction

When I graduated from law school in 1995, the world was a different place. Legal research still occurred in law libraries using books. Windows 95 had not yet been released and MS-DOS reigned supreme. The internet was just emerging on the scene and cell phones were few and far between.

Fast forward 23 years and times sure have changed, haven’t they? The effects of technology are inescapable and unavoidable. Nearly all aspects of our lives - and law practices - have been affected, from how we communicate and interact with others, to how share information, collaborate, and conduct business. And yet, despite the rapid technological advancements, many lawyers continue to practice law just as they did in 1995.

Now, this isn’t necessarily surprising. Ours is a precedent-based profession and predicting the future based on what happened in the past has historically proven to be a very successful way of doing business.

Unfortunately, that methodology is proving to be acutely ineffective in the 21st century given the tremendous and unprecedented rates of technological change. Never before has the world experienced such an incredible rate of change at such a fast pace.

The inescapable result of the impact of technology on the legal industry is that lawyers must innovate in order to survive. Unfortunately, due to the unique characteristics exhibited by most lawyers, innovation is a surprisingly difficult task to accomplish.

According to Michele DeStefano, author and Professor of Law at the University of Miami, the personality traits of lawyers often stand in the way of an innovative mindset. In her recently published book, “Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in the Law” she explains that it’s not easy for lawyers to innovate. This is in part due to the innate qualities of the types of people drawn to the law and in part due to our training.

For starters, lawyers tend to be skeptical. In fact, according to DeStefano, we’re nearly twice as skeptical as the general public. We’re also less trusting than the general public, which is no surprise given our high rates of skepticism.

Unfortunately, lawyers aren’t a very resilient bunch either, with 90 percent of us scoring in the bottom 50 percent when it comes to character resilience. We’re also more introverted than most, with 60% of us qualifying as introverts. Finally, as a group we tend to be very risk averse, a trait that flies in the face of innovation.

In other words, as DeStefano explains, “The lawyer’s temperament…is the opposite of what is required to… innovate — to creatively, collaboratively problem find and solve.”

Does that mean it’s hopeless? Is it impossible for lawyers to innovate? Of course not! The trick is to work hard to change your mindset. DeStefano offers strategies in her book that designed to do just that, so you might want to look into getting a copy.

In addition, take steps to learn about technology and how it’s impacting the practice of law. Subscribe to a few technology blogs, buy a few more books, attend technology CLEs, and approach technology with an open mind.

One book to consider reading is “Tomorrow’s Lawyers: An Introduction To Your Future.” In this book, Richard Susskind predicts how technology will affect the legal industry as a whole in the coming years and offers advice for lawyers seeking to thrive in the new world order.

Susskind explains that adopting technology will be one of the primary drivers of success for law firms seeking to gain a competitive edge: “One key challenge for the legal profession…is to adopt new systems earlier; to identify and grasp the opportunities afforded by emerging technologies. We need, as lawyers, to be open-minded because we are living in an era of unprecedented technological changes in what our machines can actually do.”

The bottom line: Technology is not your enemy, and change is inevitable. Approach both with an open mind and embrace them. Ignoring technological change in 2018 simply isn’t an option.

Embrace change and innovate - or become extinct. The choice is yours.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. 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 niki.black@mycase.com. 


Round Up: Secure Communication, Cybersecurity, Podcasts for Lawyers, and More

SpiralI often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from October 2018:


Is coworking a viable option for solo and small firm lawyers?

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

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It is beyond dispute that technology has changed the legal landscape. Brick and mortar offices are no longer a requirement, as more lawyers than ever transition their firms’ data from paper to digital. As a result, the days of paper files and being tethered to your desk are long gone.

Instead, lawyers have more options than ever due to technological advancements. The proliferation of internet access and cloud computing software ushered in a new era, making it possible for lawyers to access case-related information from any location, day or night. As a result, virtual and home-based law practices have emerged as an affordable and viable way to practice law.

Of course, practicing law from a home-based or virtual law firm has its challenges, especially in New York. For starters, attorney registration procedures require that a law firm’s address be publicly listed. A post office box will not suffice, and many lawyers are understandably reluctant to provide their home addresses for publication in the online attorney registry. Also problematic is finding a suitable location in which to meet with clients and discuss confidential information.

Enter coworking as a practical, cost-effective solution for solo and small firm lawyers.

Over the years, coworking spaces have become increasingly prevalent, in part due to advances in technology that have made it easier than ever to work remotely. As someone who works remotely for MyCase, a California-based company that provides law practice management software for lawyers, I’ve kept an eye on this trend, but found that the available local options were unappealing to me for a variety of reasons.

But when I recently learned of a new coworking space just for lawyers that had just opened on the east side of town, I was intrigued. And then, after visiting the office and taking a tour, I was sold. Within days I’d signed on the dotted line and have been coworking for the past month from The Loffice at Basin Park. which is located near Bushnell’s Basin.

Coworking with other lawyers offers a number of benefits. Whether you’re looking for a location to meet with clients, an alternate address to list on your attorney registration, a home base that is closer to courts in outlying counties, or a break from the isolation of working from a virtual law firm, coworking might be just what you need. One of the most obvious benefits of using a coworking space rather than leasing your own office is cost. For just a few hundred dollars you have access to a furnished office and its accompanying address.

Coworking spaces also provide you with flexibility in terms of your office setup. Most will typically provide you with a number of different options, such as a collaborative workspace, a shared office, or a private office.

You’ll also most likely have access to office equipment such as printers, a paper shredder, a copier, a a fax machine, secure wifi, and a community kitchen. Because the particular coworking space I work from is associated with the law firm located next door (Larimer Law), attorneys who use this space also have the option of using the firm’s receptionist for greeting clients, receiving mail and packages, etc.

Finally, most coworking spaces typically provide access to conference rooms for meetings with clients, and a telecommunications room. So when you need privacy, it’s available. But when you’d like some camaraderie, a sense of community, or a colleague to bounce an idea off of, you have that available to you, too.

So, if you’re a Rochester lawyer who is practicing law from a home office or other atypical setup, coworking might be worth considering. As your law practice grows or changes over time, you’ll need options for flexible expansion at an affordable price. Coworking provides just that, so don’t overlook coworking spaces; they might be just what you need.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. 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 niki.black@mycase.com.