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January 2021

The importance of technology competence when communicating electronically

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

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The importance of technology competence when communicating electronically

I’m sure that by now you’ve already seen the now infamous cat filter court hearing video. If not, Google it and watch it. I’ll wait.

Now that you’re back, let’s talk about how you can avoid replicating that unfortunate predicament. The short answer? By maintaining technology competence when using electronic methods to communicate with clients and colleagues.

It’s always been important to ensure that you understand how to use the technologies that you use regularly in your practice. But now that many of us are working - and appearing in court - remotely, it’s imperative that lawyers are technologically competent when communicating electronically.

If you’re not sure what your obligations are when it comes to electronic communications or aren’t sure where to start, you’re in luck. The Florida Bar issued an updated guide last year that’s right on point: “Best Practices for Professional Electronic Communication.” 

This 25-page ebook offers a comprehensive overview of the ins and outs of different types of electronic communication and the issues lawyers need to understand when using said technologies. The types of electronic communications covered include texting, email, social media, telephones and cellphones, laptops, and court appearances via videoconference.

I recommend that you read the guide in its entirety since it contains at ton of useful information about securely and ethically communicating electronically. In the meantime, here are some highlights to get you started.

For starters, let’s take a look at the technology considerations you need to be aware of when texting. First and foremost, please understand that like the internet (see last week’s column), texting is forever. As the authors explain, “text messages can be saved on a cell phone within the actual conversation or on a smartphone by simply taking a screenshot of the conversation. These captured text messages can be forwarded to other recipients or exported from the device.” So please, text with care.

Other useful tips to keep in mind when texting include the following: 1) understand that text threads can be altered, and 2) when texting with or about clients, familiarize yourself with the backup policies, retrieval methods, metadata, etc. that texting service providers and devices employ to allow the retention and destruction of sent and received text messages.

The advice relating to email was likewise instructive, and worth taking note of. First, the authors focused on email attachments and the importance of understanding and managing any metadata contained therein: “Attachments may contain metadata that could disclose unwanted information to the recipient (and may) contain malicious software code (so) use scanning software for both outbound and inbound emails.”

Another important factor that was emphasized was the need to preserve confidentiality when using email. The authors explained the risks of using unencrypted email when sharing confidential information: “(I)f you use email as form of confidential communication, you should know the risks and be familiar with the options of sending secure/encrypted messages (since) there is always a chance that your email may be intercepted. Many of these risks are mitigated if not entirely eradicated when using an encrypted email service.”

Because of those risks, the authors recommended that lawyers use secure client portals like the ones built into law practice management software in lieu of email: “Secure client portals are an emerging and safe alternative to email. There are many case and practice management systems that offer a client portal component. You should seriously consider this option as a method of communication for confidential information.”

And last but not least, let’s bring it full circle and take a look at some of their recommendations regarding virtual court proceedings. First and foremost, the authors emphasized the importance of technology competence, and explained that judges should “(a)llow a few minutes more than you normally would before the time to begin to ensure technology is working.” Similarly, another piece of advice was to “have technology staff on standby, readily available to handle any technology issues that may arise.”

Take that last tip to heart, dear readers, on the off chance that you, too, end up imprisoned behind an adorable filter at the start of a hearing. With a tech-savvy assistant nearby, you’ll be able to quickly address the issue and thus avoid being immortalized via an internet meme as a very cute, albeit distressed, cat.

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: Law Practice Management Software, Clubhouse, Remote Work Ethical Guidance & 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 published from January:


The internet is forever, so behave accordingly

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

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The Internet is Forever, So Behave Accordingly

My fellow lawyers: let's talk.

Now let me just say at the outset that I am absolutely thrilled to see all of you using technology, whether it's social media, video conferencing, or cloud computing. For more than a decade now I've been encouraging lawyers to embrace internet-based tools and educate themselves about the possibilities and many benefits of interacting, engaging, and conducting business online.

As you can imagine, it’s been a long, and sometimes frustrating journey. Before the pandemic hit, the legal profession was finally beginning to use emerging technologies, but adoption was occurring at a slow, but steady pace. And then, COVID-19 arrived, and everything changed.

One of the many effects of COVID-19 was that the mandatory quarantines required lawyers to rapidly shift to remote work. As a result lawyers began to use technology at rates never before seen. Lawyers implemented cloud-based software in order to get work done remotely. Similarly, methods of communication shifted rapidly because of social distancing requirements. Lawyers began to interact on social media more than ever before, and video conferencing became the norm.

These rapid changes were a welcome departure from the slow and measured rates of technology adoption that preceded them. However with that rapid technology usage came some very notable bumps in the road. It is these hiccups that I’d like to address in today’s column.

First and foremost I beseech you, my fellow lawyers, to understand that the internet is forever. Let me repeat that: the internet is forever.

Now I know I've told you this before. I’ve repeatedly shared this proposition with you in many different columns, and I know other legal technology professionals have done the same. But based on the barrage of news headlines about the many online missteps by lawyers that have occurred since the onset of the pandemic, I'm not sure the message has gotten through.

So let me be clear: when you are using internet-based technology such as social media or video conferencing software to interact with others please understand that anything you do and say can be recorded and shared across the internet for everyone to see. Screenshots can be taken. Video conference calls can be recorded. Everything you do and say online can be disseminated rapidly across social media, and once this happens there's no going back.

Things that you say and do online can come back to haunt you. You may experience public humiliation. Your actions could result in disciplinary action. You might even face criminal prosecution.

Lawyers have encountered all of these consequences in recent months. Attorneys involved in the riots at the Capital who shared their participation online now face criminal indictments. Lawyers who engaged in unprofessional conduct during Zoom meetings have had their actions shared far and wide. Lawyers who have, in the heat of the moment, posted threats or other inappropriate comments have placed their licenses to practice law at risk.

If only all of these lawyers had paused for mere seconds and thought about their actions prior to engaging in them, much of this could've been avoided.

So, my fellow lawyers, here are a few examples of what not to do, ripped from the headlines. If you're about to riot on the Capital or engage in other potentially criminal conduct, perhaps think before you engage in those actions, and if you decide to go move forward, at the very least avoid posting about them on social media. Or, if you start to get bored during a Zoom meeting, understand that your actions are visible to others and are likely being recorded and thus you should resist the urge to entertain yourself in an unseemly way, either alone or with a partner. And finally, refrain from publicly providing an online contact who is feuding with her ex-husband with advice on how to successfully murder said ex in a way that would allow the claim of self-defense to be asserted.

When you really think about it, it's just common sense. The Internet is forever, so behave accordingly. It’s really not that difficult, and I know you can do it. So what do you say? Will you take my advice and stop acting like idiots online? Not only will you avoid a lot of hassles and unpleasant consequences, we’ll all be better off for it. As far as I’m concerned, it’s a win-win all around!

 

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.


NYSBA provides ransomware guidance for lawyers

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

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NYSBA Provides Ransomeware Guidance For Lawyers

The pandemic has impacted so many different aspects of our lives, from where and how we work to how we communicate and interact with loved ones. The work-from-home requirements necessitated by COVID-19 have been one of the most noticeable effects of the pandemic. This increase in working from home has also led to another notable trend: an escalation in the number of cyberattacks occurring due to the vulnerabilities exposed by the rapid and unexpected transition to remote work by so many businesses - including law firms - across the country.

This development was likely the impetus for the recent release of a cybersecurity alert by the New York State Bar Association’s Technology and Legal Profession Committee relating to ransomeware. This very timely resource provides a wealth of advice and guidance for lawyers seeking to protect their firms’ data from attacks by nefarious actors.

In the report, the authors first tackle the concept of ransomware. They provide the following explanation along with examples to help readers understand what ransomware is and how bad actors use it to attempt to obtain information from law firms:

Ransomware is a form of malicious software (malware) that targets critical data and systems for the purpose of extortion.
Ransomware often encrypts data or programs to extort ransom payments from victims in exchange for decrypting the information and restoring victims’ access to their systems or data. In many instances, the attacker threatens to publish sensitive information that has been seized, further hurting the victim, or impacting the business’ reputation.

As explained in the alert, the ransom demand typically consists of a demand for cryptocurrency in exchange for the data being held hostage. However, of note is that the Committee cautions that the provision of a payment does not necessarily guarantee that the data will necessarily be returned.
Because there is no way to ensure with certainty that your law firm will be able to obtain the return of its data from the bad actors, it is imperative that steps be taken to protect the data that remains on the firm’s systems. To that end, the Committee provides a step-by-step roadmap that includes recommendations to: 1) immediately isolate affected systems and avoid deleting any data, 2) isolate and/or power off uncorrupted devices, 3) after ensuring that existing data backups are free of malware, secure them and take them offline, 4) report the attack to https://www.ic3.gov/ and contact the local field offices of the FBI and U.S. Secret Service, 5) collect and secure any portions of existing ransomed data, 6) after taking the system offline, change online account and network passwords, 7) change systems passwords once malware has been removed, 8) disable maintenance tasks, and 9) implement incident response and business continuity plans.

The Committee also provides useful best practices guidance for law firms seeking to proactively protect their firms from future ransomeware attacks. The best practice tips are to: 1) implement an awareness and training program, 2) use Multi-Factor Authentication, 3) use long, complex passwords and do not reuse passwords for multiple accounts, 4) change default passwords, 5) enforce account lockouts after a specified number of login attempts, 6) configure access controls—including file, directory, and network share permissions—to limit access to only those who must have it, 7) restrict user permissions to install and run software applications, 8) enable strong spam filters to prevent phishing emails from reaching the end users. 9) set anti-virus and anti-malware programs to conduct regular scans automatically, 10) regularly patch systems, software, and firmware, 11) configure firewalls to block access to known malicious IP addresses, and 12) implement a Clean Desk Policy.

Note that the above constitutes highlights from this cybersecurity alert. For that reason, it’s important to read the alert in its entirety for a complete overview of the risks of ransomware, the precautionary steps you can take to protect your firm from being affected by it, and how to respond to an attack without making the situation any worse than it already is.

In closing, I urge you to give this document a thorough read and then implement the recommendations contained therein. Trust me, you won’t regret it. You’ve got nothing to lose by educating yourself about ransomware risks - and everything to gain!

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.