Sui Generis--a New York law blog

Round Up: Top Legaltech Stories of 2020, Virtual Conferences With Avatars, and Remote Working Software

I 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 published from December:

• Top 5 legal technology stories of 2020 - ABA Journal
• Most Virtual Conferences Suck, But Not This One! - Above the Law
• Last-Minute Holiday Gifts For Lawyers - Above the Law
• Round Up: The Top Remote Working Software for Law Firms in 2020 - MyCase Blog
• Top Holiday Gifts for Lawyers Working Remotely - MyCase Blog
• Holiday Wellness Gift Ideas for Lawyers - MyCase Blog
• Watch MyCase’s 2020 Webinars To Get Your Firm Ready for the New Year - MyCase Blog
• Prepare Your Firm for the New Year With MyCase’s 2020 Guide Series  - MyCase Blog

ABA Ethics Opinion on Working Remotely

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

*****

ABA Ethics Opinion on Working Remotely

In 2020, the pandemic changed just about everything. One of the biggest areas impacted was the way that work was performed. Out of necessity, it was the year of working remotely for businesses across the country. And with increasing COVID-19 surges across the country and vaccine availability for the general population at least 6 months away, working remotely will continue to be commonplace for months to come.

For lawyers, working from home presents unique ethical issues due to the confidential nature of the information handled by law offices. Fortunately, if you’re a lawyer working remotely, the American Bar Association handed down an opinion just last week that provides some helpful ethical guidance.

In Formal Opinion 495, the Standing Committee on Ethics and Professional Responsibility addressed one of the many issues presented when lawyers engage in remote work: whether it’s permissible for lawyers to handle cases in the jurisdiction(s) in which they are licensed while working from a physical location in which they are not licensed.

The Committee began by acknowledging the reality of the situation that lawyers find themselves in as a result of the pandemic: “Lawyers, like others, have more frequently been working remotely: practicing law mainly through electronic means. Technology has made it possible for a lawyer to practice virtually in a jurisdiction where the lawyer is licensed, providing legal services to residents of that jurisdiction, even though the lawyer may be physically located in a different jurisdiction where the lawyer is not licensed.”

Before addressing the issues presented, the Committee clarified that its opinion did not apply in situations where “a particular jurisdiction has made the determination, by statute, rule, case law, or opinion, that a lawyer working remotely while physically located in that jurisdiction constitutes the unauthorized or unlicensed practice of law.”

Next the Committee turned to the jurisdictions that had no prohibitions of that nature in place, explaining that ABA Model Rule 5.5(a) prevents lawyers from engaging in the unauthorized practice of law in jurisdictions in which they are not licensed. According to the Committee, the prohibition is not absolute, and does not apply in situations where lawyers are temporarily practicing law from locations in which they are not licensed as long as they avoid the outward appearance of “establishing” a local office: “A local office is not ‘established’ within the meaning of the rule by the lawyer working in the local jurisdiction if the lawyer does not hold out to the public an address in the local jurisdiction as an office and a local jurisdiction address does not appear on letterhead, business cards, websites, or other indicia of a lawyer’s presence.”

As the Committee explained, lawyers working from home due to COVID-19 restrictions in a location in which they are not authorized to practice is an example of a temporary situation that usually does not trigger the prohibitions of Model Rule 5.5.: “(I)n a pandemic that results in safety measures—regardless of whether the safety measures are governmentally mandated—that include physical closure or limited use of law offices, lawyers may temporarily be working remotely. How long that temporary period lasts could vary significantly based on the need to address the pandemic.”

The Committee emphasized that the rationale behind Model Rule 5.5 is to protect legal consumers from unlicensed or unqualified attorneys, and that “purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.”

So those of you who are practicing law from a location in which you are not licensed and plan to continue doing so until the pandemic is behind us can breathe a sigh of relief. The ABA has given this practice the green light. So rest easy knowing that your actions are ethically permissible as you head into the holiday season.

And speaking of the holidays, do me a favor: make sure to take some time off over the next few weeks, regardless of where you’re working. Rest, relax, and enjoy time with your loved ones. It’s been a long, challenging year. You deserve it. We all do. Happy Holidays!

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 [email protected].

2020 Holiday Gift Guide for Lawyers

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

*****

2020 Holiday Gift Guide for Lawyers

2020 has been quite the year, and it’s been anything but easy. No doubt, you’re ready for this unprecedented year to end so that we can look forward to a new, hopefully much less eventful 2021. In the meantime, the holidays are upon us and you may still have presents to buy.

If so, you’re in luck! I’ve pulled together a last-minute holiday gift guide for lawyers, and I have no doubt that one of the gifts below is sure to be a good fit for the lawyer on your list. This list is drawn from products that I own and services that I use, all of which I highly recommend. It includes gift ideas that will help lawyers who are working remotely find joy, productivity, and peace in their homes. Hopefully one or two will be a good fit for your own wish list or for the lawyer in your life.

First up, Amazon subscription boxes. You may not be aware that Amazon offers access to hundreds of subscription box services. These are a great way to give someone a gift that they can look forward to each month. Amazon has over 400 gift box services available in countless categories, so no matter what you’re looking for, there’s bound to be one that’s a good fit.

A meditation app is another good subscription option. Two of the most popular meditation apps that you might want to consider are Calm and Headspace. Both offer thousands of different meditations such as anxiety-reducing meditations or meditations that help you fall sleep. There are also meditation series offered on both apps that focus on a variety of goals including encouraging gratitude, increasing self esteem, or improving concentration. You can purchase annual gift subscriptions for either app for a little over $50.

If you don’t already have a pair of Apple AirPods, I highly recommend them. I’m a huge fan of mine. They’re great for taking calls and walking around your office unencumbered. They’re also perfect for using during Zoom meetings - something we’re all doing a lot these days. AirPods aren’t cheap, but they’re well worth the price. They start at $199 for a pair with a wireless charging case, or you can choose to go with a wired charging case for $159.

Last but not least, there’s the Wine.com StewardShip program. For $49 a year, members of this program get free shipping for the entire year. So wine and other spirits can be delivered right to your door, at no additional cost to you. I really like Wine.com, since it’s a great site for exploring new wines and spirits, and they offer free recorded wine tastings, wine tasting sets, free online wine and spirit guides, and much more. With the pandemic surging and lockdowns looming, it’s just one more way to get a little holiday cheer delivered right to your door without leaving your house.

So those are a few of my top gift recommendations for the 2020 holiday season. I hope some of these last-minute gift ideas are a good fit for the lawyer on your list. And, now that you have plenty of ideas to choose from, what are you waiting for? Start shopping today and your holiday gift shopping will be done before you know it!

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 [email protected].

NYC Bar On the Ethics Lawyers Appearing in Court During the Pandemic

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

*****

NYC Bar On the Ethics Lawyers Appearing in Court During the Pandemic

In October, I wrote about an opinion issued by the New York State Bar that addressed the ethical issues presented when a lawyer sought to withdraw as counsel due to health-related concerns regarding in-person court appearances during the pandemic. As I reported in my article, the New York State Bar Association’s Committee on Professional Ethics concluded that an attorney may indeed withdraw from representation due to COVID19-related concerns if the attorney obtains permission from the court.

Now, less than two months later, another New York ethics committee has weighed in on a similar issue. In Formal Opinion 2020-5, the Professional Ethics Committee of the New York City Bar Association considered the following question: “Whether a lawyer’s health concerns regarding appearing in court in person during a pandemic can create a conflict of interest requiring withdrawal from the representation.”

At the outset, the Committee noted that the existence of the pandemic, in and of itself, provides insufficient grounds to permit an attorney to withdraw from representation. The committee explained that there are often options to appear virtually on behalf of a client and even when in-person appearances are mandated, courts are often able to “implement adequate health and safety protocols under which a reasonable lawyer would feel comfortable appearing in person.”

That being said, the Committee acknowledged that as a result of the severity of the pandemic, some lawyers could have a reasonable fear for their health and safety, which could in turn create a conflict of interest that would compromise their ability to effectively represent their clients. The Committee explained that health concerns could cause attorneys to: 1) request unnecessary adjournments to the detriment of their clients , 2) refrain from filing motions in an effort to avoid an in-person court appearance, or 3) take other actions the case in order to move the case along that could have negative consequences for their clients.

The Committee noted that in many cases, either the safety precautions taken by courts or the virtual appearance options offered will be sufficient to assuage an attorney. However, according to the Committee “this must be evaluated on a case-by-case basis and will depend on the risks to the lawyer and the reasonably available options for continuing with the representation” and that in some cases “a lawyer who may suffer from preexisting health conditions or live in a household with others who are susceptible to infection could reasonably believe that the heightened fear of infection would affect the lawyer’s ability to competently and diligently represent the client.”

Should that be the case, then a legitimate conflict of interest may exist. According to the Committee, if that conflict is not otherwise waivable and legitimate health concerns make it “impossible for the lawyer to provide competent and diligent representation,” then the lawyer may withdraw as counsel. Of note is that while the Committee acknowledged that it reached a conclusion similar to that of the New York State Bar Association, it did so for different reasons: “(T)his Opinion analyzes whether a lawyer must withdraw from the representation based a conflict of interest whereas Opinion 1203 analyzes permissive withdrawal under Rule 1.16(c).” 

So if you’re a New York lawyer who is understandably concerned about in-person court appearances at a time when COVID-19 continues to surge across the state, you now have two different ethics opinions in your corner should you decide that withdrawal from representation is the best path forward. Notably, many courts have already canceled most in-court appearances, and other may soon follow, so this may be a moot issue. But in the event it’s not, you’ve now got two paths available to you that have received the ethical stamp of approval.

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 [email protected].

Round Up: Remote Working, Virtual Conferences, and Cloud Computing

I 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 published from November:

• 2020 in review: Legal software for working remotely - ABA Journal (November 2020)
• Surveys Say: COVID-19 Pushed Law Firms Further Into The Cloud - Above the Law (November 2020)
• Most Virtual Conferences Suck, But Not This One! - Above the Law (November 2020)
• ABA Survey Results: How Lawyers Are Communicating Online in 2020 - MyCase Blog (November 2020)
• 2020 ILTA Legal Technology Survey: Remote Working and the Shift to Cloud-based Legal Software - MyCase Blog (November 2020)
• 3 Reasons Lawyers Should Be Grateful in 2020 - MyCase Blog (November 2020)
• Round Up: The Top Remote Working Software for Law Firms in 2020 - MyCase Blog (December 2020)
• Top Holiday Gifts for Lawyers Working Remotely -  MyCase Blog (December 2020)

Case shows why lawyers must encrypt e-communications

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

*****

Case shows why lawyers must encrypt e-communications

Whenever your firm’s employees work remotely during the pandemic (and beyond), electronic communications will increase out of necessity. If those communications aren’t encrypted, you run the risk of inadvertently disclosing confidential client data. That’s why it’s imperative that your firm takes steps to encrypt online communications if it isn’t already doing so. Whether you decide to encrypt emails on a case-by-case basis or use the secure online communications portals that are often built into law practice management software, one way or another, your firm needs to ensure that it’s protecting all confidential electronic communications.

Doing so will not only safeguard confidential information, it may also shield your firm from liability in the event that a cyber-scam that results in a loss to your client. Case in point: Otto v. Caltrow Law, PLLC, No. 19-0361. In this case, the Supreme Court of Appeals of West Virginia considered whether a law firm was liable for a cyber-scam that resulted in a $266,000 loss to its client when funds for a real estate transaction were mistakenly wired to scammers.

In this case, an unidentified scammer impersonated the Otto’s real estate agent in an email conversation and as a result, the Ottos, who were clients of the Caltrow firm, wired the scammer $266,069.22. This money was never recovered.

The Caltrow firm used encrypted email to communicate with the Otto’s realtor regarding wiring instructions, and never communicated directly with the Ottos. The realtor, the real estate broker, and the Ottos, however, subsequently discussed the wiring instructions via unencrypted email. It was that unencrypted email chain that the scammers hacked into. They then subsequently spoofed the real estate agent in emails sent to the Ottos regarding the purported new wiring instructions. As a result of those spoofed emails, the Ottos wired the money to the scammer’s bank account.

The Ottos subsequently filed suit against the real estate broker, the realtor, and the Caltrow firm in an attempt to  recover their losses. They later settled with the broker and realtor, and then amended their claims against the Caltrow firm and alleged that the firm breached duties owed to them as follows:

1. Prior to wiring any funds, [Petitioners] should have been personally contacted by [Respondent], or, at a minimum, [Petitioners] should have been advised and alerted by [Respondent] to call her office and confirm the instructions.
2. b) Although [Respondent] appeared to have used an encrypted email, [Respondent], knowing full well that wiring instructions were to be communicated via email, should have taken any precautions to determine if [the realtor's] . . . and the [Petitioners’] emails were encrypted and otherwise secured.
3. c) [Respondent] should have informed the [Petitioners] as to the prevalence of wire fraud schemes, and that if an email seemed suspicious, they should take no action until they confirmed, by independent means, that the communication was legitimate.

The Court disagreed with their assertions. First, the Court determined that when the firm encrypted the email regarding the wire instructions, it exercised reasonable care by taking steps to protect that information: “The contents of that email were highly sensitive and Respondent reasonably expected the information to remain confidential by use of encryption technology. Indeed, Petitioners concede that Respondent was not responsible for the hack because they pled in their amended complaint that ‘the money was diverted when the hacker was able to intervene in email correspondences between' (the realtor) and Coldwell.”

Next the Court turned to the Otto’s assertion that the firm failed to warn them about the risks associated with potential phishing and spoofing email schemes. The Court likewise dismissed that claim, concluding that the plaintiffs failed to provide sufficient evidence to support their allegation that the firm breached the applicable standard of care owed to the plaintiffs under West Virginia law.

In other words, the firm’s use of encrypted email is what saved the day in this case and precluded liability. What steps does your firm take to ensure that confidential client data is sufficiently protected from prying eyes? Does your firm have secure communication protocols, such as online communication portals, in place? If not, what better time to implement them than now, as you plan for a successful 2021? Not only is it the ethical thing to do, it’s the smart thing to do -  so what are you waiting for?

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 [email protected].

Can the pandemic provide an excuse for sanctionable conduct?

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

*****

As we enter our ninth month of the pandemic and COVID-19 numbers are surging across the country, lawyers and judges alike are bracing for newfound full or partial shutdowns. If and when the shutdowns occur, our court systems will undoubtedly slow down, creating a bottleneck effect, just like what happened in the spring. And when that occurs, litigators run the risk of losing track of, or access to, case-related court filings.

If this scenario should come to pass, and a lawyer’s access to court records is limited because of shelter-in-place orders, are sanctions appropriate if a lawyer inadvertently misstates the record on appeal due to the inaccessibility of that information? This very question was at issue in a recent case from the United States Court of Appeals for the Sixth Circuit, Saenz v. Kohl’s Department Stores, No. 20157. 

In this personal injury case, which arose from a slip and fall in a department store, the plaintiff appealed a summary judgment grant in favor of the defendant. On appeal, the crux the plaintiff’s argument was based on an interrogatory answer that was never signed nor included as part of the record on appeal.

After upholding the lower court’s grant of summary judgment, the Court of Appeals considered Kohl’s motion for sanctions against the plaintiff and her appellate counsel. The Court explained that, “Kohl’s has moved for sanctions, arguing that this appeal is frivolous because ‘Saenz’s entire appeal is premised on an interrogatory answer’ that 'is not part of the District Court’s record.’”

After declining to impose sanctions on the plaintiff since there was no evidence that she harbored an improper motive in bringing the appeal, the court then turned to the motion for sanctions against her appellate attorney. The Court explained that sanctions against counsel are appropriate where “an attorney has engaged in some sort of conduct that, from an objective standpoint, ‘falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party.’”

After reviewing the attorney’s conduct in the case, the Court acknowledged that he repeatedly referred to the unsigned interrogatories even after it was pointed out to him that they were never signed and weren’t part of the record on appeal, and that such conduct was “unprofessional and serious enough to meet the standard for imposing sanctions.”

Nevertheless, the Court declined to impose sanctions given the unprecedented effects of the pandemic-related stay-at-home orders. The Court determined that it would exercise its discretion “‘not to sanction’ counsel…No doubt, it was careless to quote the unsigned Interrogatory 9 and then appeal based on that error. But we appreciate that these are trying times…Michigan stay-at-home order due to COVID-19 was in effect at the time Saenz filed this appeal, which may have limited her attorney’s access to the record. In these circumstances, we choose to give him the benefit of the doubt.”

This case is one more example of the extraordinary impact that the pandemic has had on the world, our country, and our court system. Although there are vaccines on the horizon, their widespread implementation is, at best, months away. For now, our only option is to do our best in the face of uncertainty, and, like the Sixth Circuit Court of Appeals judges did, consider cutting others a break when their best just might not be good enough. In the meantime, stay safe everyone, and don’t be too hard on yourselves - or those around you!

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 [email protected].