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Cloud and mobile computing trends for lawyers in 2020

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

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Cloud and mobile computing trends for lawyers in 2020

I started writing about cloud and mobile computing and their potential benefits for the legal profession in 2008. Two years later I began to work on a draft of my book “Cloud Computing for Lawyers,” which was published by the American Bar Association in 2012. Back then, convincing lawyers that cloud computing was the future and that its benefits far outweighed the risks was a tough sell. This is because at the time many lawyers were understandably skeptical, and expressed concerns about the ethical and security issues presented by the use of cloud computing by lawyers.

Fast forward to 2019 and how times have changed! The majority of lawyers are now using cloud and mobile computing tools as part of their day-to-day practices and are reaping the benefits offered by mobile law practices. For proof you need look no further than the latest ABA Legal Technology Survey Report, which was released earlier this month.

According to the survey results, 58% of lawyers now report that they use  cloud computing tools for work-related tasks, compared to 38% in 2016. Small firm lawyers from firms with 2-9 lawyers were the most likely to use cloud computing software at 61%. Next up were lawyers from firms of 10-49 attorneys at 60%, followed by 59% of solo lawyers, and 51% of large firm lawyers (100 or more attorneys).

Notably, 8% of the lawyers surveyed indicated that their firms had plans to replace traditional server-based software with a cloud-based alternative within the next 12 months. Lawyers from firms with 2-9 lawyers were the most likely to plan to make that move (12%), followed by lawyers from firms with 10-49 lawyers at 8%. Next up were 6% of lawyers from firms with 100 or more attorneys, and solo lawyers came in last at 5%.

According to the Report, lawyers use cloud computing software for many different reasons. The top reason they provided was easy browser access at 65%, followed by 24/7 access to their law firm’s data at 61%. 48% reported that the low cost of entry and predictable monthly expenses were important benefits. 45% of lawyers indicated that robust data backup and recovery was a top benefit. For 35% a strong selling point was that cloud-based software is quick to get up and running, followed by the fact that cloud computing software eliminates IT and software management requirements at 31%. And last but not least, 34% shared that they used cloud computing software because it offers better security than they can provide in-house.

The results of the survey also showed that the majority of lawyers (55%) now telecommute on a regular basis. Of the 55% of lawyers who reported that they telecommuted in the past year, lawyers from firms with 100 or more attorneys were the most likely to do so (60%), followed by 56% of solo attorneys, 53% of lawyers from firms with 2-9 attorneys, and 49% of lawyers from firms with 10-49 attorneys

One way that lawyers access their information stored in the cloud while on the go is through the use of smartphones, so it’s no surprise that smartphone use by lawyers continues to increase. A whopping 79% of lawyers reported that they used an iPhone for work-related tasks, while 18% use an Android smartphone. Up next is Blackberry at 7%, and only 1.5% of lawyers reported that they never use a smartphone for work-related purposes.

One place that lawyers often use their smartphones is in court, and when asked how they used smartphones while in court, 54% shared that they used them for checking email.  Next up was calendaring at 40%, real-time communications at 32%, and legal research  at 22%.

According to the survey results, 29% of lawyers also use tablets in the courtroom. Some of the activities that lawyers conducted on their tablets included email (25%), legal research (19%), calendaring (14%), real-time communications (13%), and accessing court dockets and documents (10%).

Lawyers also regularly use laptops when they’re in the courtroom, with 44% of survey respondents indicating that they regularly did so. The most popular tasks accomplished with laptops while in the courtroom were email (34%), legal research (33%), accessing court dockets and documents (26%), and editing document (24%).

So that’s how today’s mobile lawyer gets work done on the go. How does your usage compare? Are you taking full advantage of the many benefits offered by mobile and cloud computing tools in your practice? If you’re not already using cloud computing software at your firm, maybe it’s time to consider an upgrade. After all, there’s no better time than the present!

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. 


Should Facial Recognition Software Be Banned?

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

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Should Facial Recognition Software Be Banned?

Does facial recognition technology present a unique and unprecedented threat to our privacy? According to Evan Selinger, RIT philosophy professor and expert on the ethical and privacy implications of technology, the answer is “yes.” At least, that’s what he told us earlier this month when he spoke to a group of lawyers here in Rochester.

This presentation was sponsored by the Monroe County Bar Association’s Technology and Law Practice Committee and was held at the upstairs meeting room at 80W restaurant. I’m the chair of this committee and this TechTalk, was part of an upcoming series of talks that are the brainchild of committee member Aleksander Nikolic, a Rochester IP attorney with Heslin, Rothenberg, Farley & Mesiti, P.C.

During this talk,"Who Stole My Face? The Privacy Implications of Facial Recognition Technology,” Selinger shared the reasons for his belief that facial recognition software should be banned. His basic premise was that that facial recognition technology should be banned across the board until regulations are enacted that will control when and how it is used, and by whom.

Selinger explained that facial recognition technology is unique in its invasiveness and in its potential for causing harm. In large part this is because our faces are central to our identities, and due to social norms and unlike other biometric data such as our fingerprints or DNA, are typically fully viewable when we’re in public. Similarly, because images of our faces are easily captured, both online and off, that data is more vulnerable to use and abuse by law enforcement agencies and private entities.

According to Selinger, the use of facial recognition technology by law enforcement is particularly problematic due to its invasiveness and increasing pervasiveness. This is in part due to the risks presented when law enforcement officers seek to use facial recognition tools as part of their investigatory, screening, and crime prevention arsenals. One example offered by Selinger is that in some cases law enforcement agencies have obtained images from driver’s licenses issued by the DMV and used them for investigatory purposes including in lineups.

The use of facial recognition technology in this manner is of particular concern since the underlying programming used to create facial recognition software often leads to biased results that can have life-altering effects for those being screened by it. For example, in a study conducted by the ACLU last year, it was determined that the programming behind Amazon's facial surveillance technology, Rekognition, was inherently biased.

In the study, Amazon’s facial recognition software was used to compare photos of members of Congress to mugshots of people who had been arrested for a crime. Rekognition incorrectly identified 28 matches between members of Congress and the mugshots. Notably it was members of Congress who were people of color that were disproportionately affected by these errors. That same software also has been shown to have difficulty identifying women’s faces and has incorrectly determined that women were men.

Selinger asserted that legislation recently passed in San Francisco, Somerville, Berkeley, and Oakland that bans the use of facial recognition tools by law enforcement is a step in the right direction. I agree with him, but realistically, I tend to believe that the use of facial recognition technology is already pervasive enough that it's going to be difficult to unring that bell. After all, the legislative process tends to move at a snail's pace, while technology is advancing at rates never before seen.

That being said, only time will tell. All in all, Selinger’s presentation was a fascinating one and was well received by everyone in attendance. If it sounds interesting to you, then you’re in luck! As mentioned above, this was the first in a series of TechTalks that the Committee will be hosting, and each presentation will focus on the intersection of technology and the law. Future talks will be open to the business community as well as attorneys, so make sure to visit the Monroe County Bar Association’s website (www.mcba.org) for details about upcoming TechTalks. We hope to see you next time!

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. 


Round Up: Robot Lawyers, Email Tracking, Bitcoin 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 since September:


Should Judges Provide Online Recommendations? Maryland Weighs In

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

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Should Judges Provide Online Recommendations? Maryland Weighs In

In 2019, most lawyers have accepted that the internet, and online marketing, is here to stay. For some lawyers, the extent of their practice’s online marketing is a law firm website. Others are more tech-savvy and also use social media platforms and other online tools to market their law practice. 

Of course, with those forays into online marketing come ethical missteps. In the beginning, the internet really did feel like the Wild Wild West. But over time, that changed, and ethics committees across the country have stepped up to the plate and provided lawyers with the ethical guidance needed to successfully navigate the 21st century online legal marketing landscape.

One recent opinion of interest that addressed an issue that I haven’t seen covered elsewhere arose in Maryland. In this case, the inquiring attorney was a judge who had a question regarding participation on Avvo. The specific issue under consideration by the Maryland Judicial Ethics Committee in Opinion Request Number: 2019-24 was whether it was ethically permissible for a judge to provide a recommendation for a former law clerk on Avvo.

In the past, ethics committees and courts have considered whether it is permissible for judges to form connections on social media sites with lawyers who practice before them, and the general consensus has been that they may and that doing so doesn’t usually require judges to recuse themselves in order to avoid the appearance of impartiality.. See, for example, ABA Formal Opinion 488 and Law Offices of Herssein and Herssein v. United States Automobile Association, No. SC17-1848 (2018).

In the Maryland opinion, the Committee was faced with a similar issue: Whether providing an Avvo recommendation on behalf of and at the request of the inquirer’s former law clerk could be perceived as affecting the judge’s appearance of impartiality.

At the outset, the Committee necessarily focused on Avvo, describing it as “a comprehensive online legal marketplace connecting consumers and lawyers through its online directory, attorney profiles, Q&A forum, reviews, and other features…(and) offers search tools that facilitate discovery of attorneys…(and each attorney) profile may also include client reviews and attorney endorsements.”

The Committee then turned to the issue of judicial recommendations, explaining that in some cases, judges may ethically provide a reference or recommendation on their official letterhead for an individual based upon the judge's personal knowledge, as long as “the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.”

Next the Committee analyzed the implications of an official judicial endorsement on the Avvo site. The Committee noted that because the judicial endorsement could not be anonymized due to the functionality of the Avvo platform and would be accessible by the general public, it “could potentially benefit the judicially promoted attorney to the disadvantage of others…(and) it presents a clear case of lending prestige that allows another to advance his or her economic interests.”

Accordingly, the Committee determined that judges may not provide Avvo recommendations to attorneys, including former clerks, since doing so negates the appearance of impartiality: “Requestor's Avvo endorsement would quite validly invite neutrality challenges from opposing parties and counsel whenever the endorsed attorney represented the adversary in the judge's courtroom… (and thus a) judge may not confer the prestige of judicial office to an attorney's marketing efforts.”

I’m in agreement with the Committee on this issue. A judicial recommendation on a publicly accessible site like Avvo is more consequential than the existence of a social media connection. Not only does it imply a connection closer than that of a mere social media friendship, it also implies an endorsement that could be perceived as a partiality towards the recipient.

As I always say, the online is simply an extension of the offline. The implications of a judicial recommendation in a public forum are clear, whether it’s a newspaper or a social media site: there is the risk of the perception of judicial preference toward that person. In other words, in this case, the medium does not change the message.

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. 


North Carolina on Whether Lawyers Can Accept Bitcoin as Payment

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

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North Carolina on Whether Lawyers Can Accept Bitcoin as Payment

You may have noticed that you’re hearing more about bitcoin as of late. Its use as a form of payment is becoming increasingly commonplace and as a result, you’re more likely to encounter it “in the wild.” In other words, it’s entirely possible that one of your clients may soon request to pay legal bills using cryptocurrency like bitcoin.

When that happens, are you ready? Do you have a process in place that will allow your firm to ethically accept bitcoin as a form of payment? If you don’t and aren’t sure where to start, you’re in luck, since a number of jurisdictions have already addressed this issue.

First, in  2017 Nebraska handed down Ethics Advisory Opinion for Lawyers No. 17-03, concluding that accepting bitcoin as payment for legal services is permissible, with some limitations. Specifically, the Committee concluded that when accepting bitcoin as payment, lawyers must protect their clients’ rights and reign in any potential volatility of the cryptocurrency by “1) Notifying the client that the attorney will not retain the digital currency units but instead will convert them into U.S. dollars immediately upon receipt; (2) Converting the digital currencies into U.S. dollars at objective market rates immediately upon receipt through the use of a payment processor; and (3) crediting the client’s account accordingly at the time of payment.”
The New York City Bar Associations’s Professional Ethics Committee also addressed this issue in July 2019 in Formal Opinion 2019-5, and determined that accepting bitcoin was permissible, but only in situations where the firm agrees to provide legal services at a set hourly rate in U.S. dollars, and the client is given the option of paying for legal services rendered using cryptocurrency in an amount equivalent to U.S. dollars at the time of payment. In those cases, the Committee concluded that payment via bitcoin did not constitute a “business transaction,” and thus the requirements of Rule 1.8(a) were inapplicable.

North Carolina also considered this issue in July and issued Proposed 2019 Formal Ethics Opinion 5, and is now seeking commentary regarding their preliminary conclusions. In this proposed opinion, the Ethics Committee determined that lawyers may accept bitcoin and other cryptocurrencies as payment for legal services under certain circumstances, but that doing so constituted a “business transaction” and thus triggered the requirements of Rule 1.8(a).

Specifically, the Committee concluded that when lawyers agree to accept cryptocurrency as payment from a client, they may only do so when: 1) the payment is a flat fee for legal services 2) the fee is not excessive, and 3) the law firm complies with the requirements of Rule 1.8(a).

The Committee explained that because the value of cryptocurrency fluctuates significantly, transactions that involve cryptocurrency necessarily involve risk, thus implicating Rule 1.8(c). Thus lawyers must ensure that the transaction is fair and reasonable by fully disclosing to the client in writing the risks and the desirability of seeking independent legal counsel, while also obtaining written consent from the client.

Notably, the Committee’s determination that all cryptocurrency payments constitute a “business transaction” was a departure from the conclusions reached by the Nebraska and New York City Committees.

The Committee also concluded that lawyers are ethically precluded from accepting cryptocurrency in all other circumstances where “entrusted funds (are) billed against or…held for the benefit of the lawyer, the client, or any third party.” The Committee explained that “as of the date of this opinion, and with the primary interest of the State Bar being the protection of the public, the methods in which virtual currency are held and exchanged are not yet suitable places of safekeeping as required by Rule 1.15-2(d) for the proper safeguarding of virtual currency as entrusted client property. Accordingly, a lawyer may not receive, maintain, or disburse entrusted virtual currency.”

For now there is no clear cut consensus on the issue of whether it is ethical for lawyers to accept cryptocurrency as payment, and under what circumstances. Perhaps over time, as this practice becomes more commonplace, more jurisdictions will weigh in and there will be a more standardized approach to cryptocurrency’s use as payment for legal services. But for now, I would suggest that you tread lightly and ensure that you fully understand, and comply with, all of your jurisdiction’s guidelines on this issue.

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.