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Round Up: Cybersecurity, Dictation Tools, and Law Firm Disaster Planning

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 since  August:


Run a 21st-century law firm with these books

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

*****

Run a 21st-century law firm with these books

Running a small law firm isn’t easy. Practicing law is a full-time job in and of itself, and as a result most small firm lawyers don’t have the luxury of letting others run the back-end of their law firm. Instead, they’re often responsible for many of the day-to-day tasks involved in managing the business end of their practices, whether it’s hiring employees, managing the books, invoicing and collecting payments from clients, or marketing their practice.
And then there are the administrative and IT functions that small firm lawyers take on themselves. These can include handling client intake, managing calendars, drafting documents, choosing and maintaining computer hardware, and selecting software for the firm.
No wonder you sometimes feel overwhelmed! Because you singlehandedly take on so many different roles, there’s too much to do and not enough hours in the day. You need all the help you can get! Fortunately, there are lots of books available designed to do just that: provide you with the guidance you need to run your small law firm efficiently and profitably. What follows are a few of my top recommendations.
First, there’s “Solo By Choice: How to be the Lawyer You Always Wanted to Be” and the “Solo By Choice, the Companion Guide,” both written by lawyer Carolyn Elefant. These books walk you through the ins and outs of starting your own law firm and cover everything you need to know about starting and managing a successful solo or small firm practice.

Next up is “The 2019 Solo and Small Firm Legal Technology Guide,” written by Sharon D. Nelson, John W. Simek, and Michael C. Maschke.  In this book, which is updated and revised annually, you’ll learn all about how to make smart technology decisions for your law firm. This book will help you sift through your technology choices, which range from hardware options to legal software tools designed to simplify the lives of solo and small-firm lawyers.

Speaking of technology, if you have senior lawyers in your law firm who are either resistant to technology or are struggling to keep up, make sure to invest in a copy of “Technology Tips for Seniors, Volume 2.0,” written by Ashley Hallene and Jeffrey M. Allen. This book includes a mobile device app guide and offers lots of other useful information that will help senior lawyers improve their productivity by learning about, understanding, and using technology.

Another book to consider if you’re seeking ways to innovate and stand out in today’s increasingly crowded legal marketplace is “Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in the Law.” In this book, author Michele DeStafano explains why the legal industry is in the middle of an unavoidable transformation, and provides ideas to help lawyers innovate in order to succeed in the new world order.

“How to Capture and Keep Clients: Marketing Strategies for Lawyers, Second Edition” is another book to read for advice on how to successfully market your law firm in 2019. This book is edited by jennifer j. rose and includes chapters from more than 27 lawyers and legal marketing experts who offer lots of great legal marketing ideas and advice.

As you put all of your learnings into action and your firm begins to thrive, you’ll no doubt seek to grow your firm by hiring new employees. That’s where “Effectively Staffing Your Law Firm, 2nd Edition” comes in. This book is also edited by jennifer j. rose and each chapter is written by experts - many of whom are lawyers - and covers everything you need to know about hiring staff, firing staff, and everything in between.

And last but not least, as you begin the process of hiring new employees, you’ll most likely encounter a Millennial or two along the way. If so, you may be struggling to understand your new hires. That’s where “What Millennial Lawyers Want” comes in. In this book, author Susan Smith Blakely explains what makes this generation tick and how managing law firm partners can change their outlook and embrace the many qualities that make Millennial employees a unique and valuable asset for law firms.

So what are you waiting for? Invest in a few of these books today and then put your newfound knowledge to work. In no time, you’ll be reaping the benefits of your investment and will be on the path to a successful and profitable law practice!

 

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. 


Lawyers and cybersecurity: What are your ethical obligations?

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

*****

Lawyers and cybersecurity: What are your ethical obligations?

If you’re practicing law in 2019, there’s no escaping technology. One way or another, you’re using technology as part of your day-to-day practice, whether it’s the internet, email, mobile devices, or cloud-based legal software. Technology is an unavoidable - and as a result, so too is the possibility of cyberattacks and breaches.

In the wake of the Equifax and Capital One breaches, along with countless other breaches that have come to light in recent years, experts warn that it’s not a matter of if you’ll be breached, but when. With that in mind, what’s a lawyer to do when it comes to cybersecurity? What are your ethical obligations and how do you ensure that your firm is in compliance?

This very issue was addressed by the Maine Bar Association in Opinion No. 220 earlier this year. In that opinion, the Professional Ethics Commission answered the following question: “What are a lawyer’s ethical obligations to understand the risks posed by technology, to prevent a cyberattack or data breach, and to respond once one occurs?”

According to the Commission, lawyers have an ethical obligation to take steps to prevent breaches from occurring and a corresponding set of duties that are triggered once a breach occurs.

At the outset, the Commission addressed lawyers obligations to prevent a cyberattack, and emphasized the importance of technology competence: “The overriding obligation is to know what the technology does, what it does not, and how to use it safely…Keeping abreast of practice changes means seeking education on evolving technology on a regular basis in order to maintain competence in its use.”

Notably, the Commission explained that while lawyers who lack technological expertise are permitted to outsource this requirement, they must nevertheless have a basic understanding of the technology being used: “A lawyer who lacks individual competence to evaluate and employ safeguards to protect client confidences and secrets should seek education from an expert or associate with another lawyer who is competent…However, the Commission does not mean to suggest that it endorses a complete ignorance of technology just because an associated lawyer or staff member knows all about it. A baseline understanding of, and competence in, the technology used in the practice of law must be maintained by every lawyer.”

Next the Commission turned to breaches, explaining that absolute security is an impossibility: “(T)he standard for measuring ethical conduct is not one of strict liability, but reasonableness.”

According to the Commission, breach prevention involves a two-step process: “(1) supervising the use of technology by lawyers and staff to ensure it is consistent with their training and instruction, and (2) monitoring the status of the technology itself in order to reveal attacks and breaches as soon as reasonably detectible.”

It’s also important to prepare for a breach and ensure that a plan is in place to address a breach or cyberattack. That’s why the Commission recommended “creating a plan to address known or suspected security breaches, including the identification of persons to be notified.”

According to the Commission, once a cyberattack or breach occurs, lawyers’ ethical obligations include: 1) taking reasonable actions to stop or contain the attack or breach, 2) investigating the attack or breach, and 3) notifying affected current and former clients.

Note that while the Maine Commission advised that former clients must be notified, a different conclusion was reached in ABA Formal Opinion 483 (online: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_op_483.pdf), which was handed down in October 2018. In that opinion, the ABA Committee explained that it was “unwilling to require notice to a former client as a matter of legal ethics in the absence of a black letter provision requiring such notice.”

Accordingly, in light of the conflicting conclusions on this issue, if you aren't a Maine attorney, I would recommend that you carefully review your jurisdiction's laws, regulations, and ethical guidelines to determine whether notifying former clients of a breach is required.

Does your firm have a plan in place to address cyberattacks and breaches? If not, what are you waiting for? You can take steps to prevent a breach and ensure that your firm is prepared should one occur. But in order to be prepared, you need a plan. And what better time than now?

 

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. 


In 2019, lawyers are using mobile and cloud computing more than ever

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

*****

 

In 2019, lawyers are using mobile and cloud computing more than ever

A little over a decade ago, the mobile revolution was launched when the iPhone was released in 2007. Just one year earlier, Amazon rolled out Amazon EC2, their first cloud computing service, and now, in 2019, many of the most popular websites, including Netflix, Pinterest, and Reddit are run on cloud servers hosted by Amazon Web Services.

It’s no coincidence that mobile and cloud computing tools launched so close in time. After all, mobile and cloud computing go hand and hand, and together they make today’s computing possible. This is because mobile devices alone are limited by their memory, processing power, and battery life. But when mobile phones and tablets are used with cloud computing tools, the data processing and storage needed to make mobile apps useful and functional can happen outside of mobile devices on cloud computing servers.

This combined utility has contributed to the significant rise in the use of cloud and mobile computing by lawyers in recent years. According to the American Bar Association’s most recent Legal Technology Survey, small firm lawyers are making the move to cloud-based legal software more than ever before, with 55% of lawyers surveyed reporting that they’ve used cloud computing software for law-related tasks over the past year, up from 38% in 2016.

And many more are thinking of switching to cloud-based legal software in the year to come. Small law firms were the most likely to plan to do so. The survey results showed that firms with 2-9 lawyers led the way at 15%. Next up was law firms with 10-49 lawyers at 14%, followed by firms with 50-99 lawyers at 13%.

According to the survey, the reasons for using cloud computing software are many. Ease of access from any location was the most popular reason (68%), followed by 24/7 availability (59%), and the affordability and the low cost of entry (48%). Other reasons provided by the lawyers surveyed included robust data back-up and recovery (46%), the ability to get the software up and running quickly (40%), the elimination of IT and software management requirements (34%), and last but certainly not least, better security than the firms were able to provide in-office (31%).

The top reason cited for making the switch – ease of access from any location – isn’t surprising since lawyers are more reliant on mobile devices in 2019 than they’ve ever been. In fact, according to the survey, 95% of lawyers reported that they use their smartphones outside of the office for law-related purposes. And, nearly half of all lawyers – 49% – reported that they used their tablet for law-related purposes while away from the office.

The most popular type of phone used by lawyers was iPhones, with 72% preferring it. Androids were next at 27%, followed by Blackberrys (2%) and then Windows Mobile (1%). Notably, despite the prominence of iPhone use by lawyers, 43% of lawyers surveyed reported that their firms supported multiple platforms for smartphones, rather than just one type of smartphone.

50% of lawyers have downloaded a legal-specific app to their smartphone, with legal research apps being the most popular. Similarly, 50% of lawyers have downloaded a general business app to their smartphone. Dropbox was the most popular, with 77% of lawyers reporting that they’d downloaded it. LinkedIn was next at 63%, followed by Evernote (37%), LogMeIn (15%), and DocsToGo (14%).

Do any of these statistics about how small firm lawyers are using cloud-based legal software and mobile devices surprise you? How mobile are you compared to your colleagues? And, is your firm in the cloud yet? If not, maybe it’s time make the switch.

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. 


The legality of probation conditions that allow searches of electronic devices

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

*****

Technology creep is an unavoidable phenomenon. These days, technology is impacting just about every aspect of our lives, and its effects are unavoidable. The criminal justice system certainly isn’t immune from this trend, with evidence of this fact cropping up on a near daily basis.

One situation I’ve covered in the past is the ways that technology intersects with the conditions of probation and parole. For example, in 2015, I wrote about Hector Salvador Lopez, a young man in California whose probation term included a condition requiring that he provide his probation officer with the passwords to any “social media sites” that he participated on. Mr. Lopez challenged that condition in People v. Lopez, 2016 WL 297942 (Cal. App. Ct. Jan. 25, 2016), claiming that it was unreasonable and unconstitutionally vague. He asserted that the term “social media site” was unclear because it could apply to any number of websites, including sites with a social element but which are not commonly referred to as social media sites. The Court rejected his assertion and the condition remained in effect.

More recently, on August 15th of this year, the Supreme Court of California considered a similar issue: whether a probation term properly included the requirement that the probationer be required to submit to an electronics search. Specifically, in Ricardo B, S230923 (online: https://tinyurl.com/InReRicardoP), the Court was asked “to decide whether an electronics search condition like the one at issue here is ‘reasonably related to future criminality.’”

Specifically, the probation condition at issue required that the probationer submit to a search of “electronics including passwords under [his] control…at any time of day or night.”

At the outset, the court noted the sweeping nature of this condition: “The plain language of this electronics search condition would require Ricardo to provide probation officers full access, day or night, not only to his social media accounts but also to the contents of his e-mails, text messages, and search histories, all photographs and videos stored on his devices, as well as any other data accessible using electronic devices, which could include anything from banking information to private health or financial information to dating profiles.”

The Court also acknowledged the invasiveness of the provision and the privacy implications that it triggered: “The warrantless search of a juvenile’s electronic devices by a probation officer, a government official, plainly raises privacy concerns of a different order than parents checking their children’s cell phones.”

Next the Court turned to the specifics of Ricardo’s case, noting that there was no correlation between any crimes he’d committed in the past and probationary search provision. The Court explained that “nothing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct. The juvenile court instead relied primarily on indications that Ricardo had previously used marijuana and its generalization that ‘minors typically will brag about their marijuana usage or drug usage, particularly their marijuana usage, by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.’”

Accordingly, the Court concluded that after balancing the invasive nature of the probation requirement against the purported reasons for its imposition by the sentencing court, the clause should be removed from his probationary conditions. The Court held that because “the record here…contains no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity…(and) is insufficient to justify the substantial burdens imposed by this electronics search condition. The probation condition is not reasonably related to future criminality and is therefore invalid…”

A just result if I’ve ever seen one. As the Court noted, the data stored on electronic devices often includes some of the most personal and intimate information available about a person and those they love. For that reason, sentencing courts should tread lightly and refrain from allowing probation officers unfettered access to this data absent strong evidence that doing so would forward the goals of probation in light of the probationer’s history and crime.

This is because governmental access to electronic data should always be carefully and thoughtfully considered and should be permitted only in very limited circumstances. Privacy rights should always trump law enforcement interests, especially where technology is concerned. While that doesn’t always happen, it’s heartening to see that privacy concerns prevailed in this case.

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. 


Small firm lawyers in 2019: geographic data, earnings, career satisfaction and more

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

*****

Small firm lawyers in 2019: geographic data, earnings, career satisfaction and more

Running a small law firm in 2019 isn’t easy, in part because the legal marketplace is in the midst of an unprecedented transformation. 21st century technologies and globalization are significantly impacting the business of law and continue to disrupt and alter the competitive landscape. Small firm lawyers are not immune from the rapid pace of change, and market forces have significantly altered many aspects of small firm practice.

For evidence of this you need look no further than the results of a number of different studies that were released this year. These reports include a vast array of data on small firm lawyers and their practices, including demographics and earnings data, along with insights on the pace of change and how law firms and lawyers are being affected by it. Here are some of the more interesting statistics from those reports.

Lawyer demographics and growth

For starters, according to the 2019 ABA National Lawyer Population Survey, lawyers are concentrated in regional pockets throughout the United States. The five states with the highest number of resident active attorneys living in the state are:

New York – 182,296
California – 170,117
Texas – 91,244
Florida – 78,448
Illinois – 62,720
D.C. – 56,135

In comparison, the same report shows that Alaska, Delaware, West Virginia, North Dakota, and Wyoming have a combined total lawyer population of less than 14,000.

Interestingly, according to another study, the ABA’s 2019 Profile of the Legal Profession Report, the states with the largest lawyer populations aren’t necessarily the states whose lawyer numbers are growing the quickest. Some of the states with the highest percentage of growth over the last decade were Florida with 28% growth, followed by Utah (27%), North Dakota (24%), North Carolina (22%), Texas (22%), and New York (19%). And D.C. has the most lawyers per capita, with 56,000 lawyers, with lawyers representing 1 out of every 13 D.C. residents.

Lawyer earnings

Next up, let’s take a look at lawyer earnings. According to the data from ABA’s 2019 Profile of the Legal Profession Report, the average lawyer salary is $144,230. Notably, lawyer earnings have increased far more slowly since the 2008 recession, and lawyer wages have increased only 9.3% in the past 5 years, compared to the 45% increase seen between 1997-2002.

Interestingly, according to the report, lawyers come in 4th overall for average industry wage, behind doctors, CEOs, and dentists.

You probably won’t be surprised to learn that lawyer earnings vary greatly by region. The top 5 metropolitan regions where lawyers earned the most in 2018 were: 1) San Jose-Sunnyvale-Santa Clara, CA ($207,950), 2) San Francisco-Oakland-Hayword, CA ($188,070), 3)Washington-Arlington-Alexandria, DC-VA-MD ($179.980), 4) Los Angeles-Long Beach-Anaheim, CA ($176,020), and 5) Houston-The Woodlands-Sugar Land, TX ($175,380).



Also of interest is that according to the results of the Martindale-Avvo 2019 Attorney Compensation Report, small law firm earnings have increased overall in the past year. The survey results indicate that the mean earnings for the lawyers surveyed increased from $194,000 in 2017 to $198,000 in 2018. Similarly, the median earnings likewise increased from $135,000 in 2017 to $140,000 in 2018. 

Also notable are the top 5 most profitable practice areas. In 2018 they were: 1) medical malpractice ($267,000 on average), 2) personal injury ($254,000), 3) worker’s compensation ($226,000), 4) intellectual property ($224,000), and 5) business ($218,000).



Career satisfaction



And last but not least, the lawyers surveyed for the Martindale-Avvo Report were asked whether, if given a choice, they’d choose law as a career again. The vast majority said they would (71%). 74% reported that they’d choose the same practice area(s), and 57% said they’d choose that same work setting.

What about you? Would you do it all over again? And if so, what would you change, if anything?

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.