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March 2021

Round Up: Law Practice Management Software, Litigation Fact Management Software, ABA TECHSHOW, 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 published from March:


New Jersey on the ethics of ‘reply all’ emails

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

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New Jersey On The Ethics Of “Reply All” Emails

Lawyers have communicated with clients via electronic means for more than two decades. For most of that time period, email has been the preferred and primary method of electronic communication. However, over time, email - which is inherently unsecure and is no different than sending a postcard written in pencil through the post office - has begun to fall out of favor as technology has improved.

For that reason, in recent years, more secure communication methods are increasingly being recommended by ethics committees and cybersecurity security experts. More secure options include encrypted email and the encrypted client communication portals built into law practice management software, for the reasons set forth in ABA Opinion 477, where the ethics committee concluded that due to “cyber-threats and (the fact that) the proliferation of electronic communications devices have changed the landscape…it is not always reasonable to rely on the use of unencrypted email.”

Despite this recommendation, many lawyers continue to use unencrypted email for confidential client communications, and doing so can sometimes compromise confidentiality. For example, the New Jersey Supreme Court Advisory Committee on Professional Ethics recently addressed one of the many ethical risks posed by email: the use of the “reply all” functionality.

At issue in NJ Ethics Opinion 739, which was handed down in March, was whether ethical issues were presented when lawyers used the “reply all” function to respond to a group email that had been sent by a lawyer who had cc:d his client in on the original email. Specifically the inquiring lawyer queried whether lawyers who used the “reply all” function in that scenario were unethically communicating with his client without consent, thus compromising the confidentiality and sanctity of the attorney-client relationship.

At the outset, the Committee noted that the applicable Rule of Professional Conduct was Rule 4.2, which  provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter ….”

Next, the Committee wisely considered analogous offline conduct prior to reaching its determination. Specifically the Committee explained that when lawyers receive a letter where opposing counsel’s client is copied, it would be unethical for the recipient lawyer to respond by writing a letter addressed to both the lawyer and the client. In comparison, if a lawyer placed a phone call to another attorney and the client was on the line as well, the lawyer who initiated the call would have been deemed to impliedly consent “to opposing counsel speaking on the call and thereby communicating both with the opposing lawyer and that lawyer's client.”

According to the Committee, because email is a decidedly informal method of communicating, when clients are cc:d in on a group email, it is assumed that all replies to the email are directed  toward the attorneys in the group and not the client.

The Committee acknowledged that some other jurisdictions have concluded otherwise, and have found that implied consent to client communications does not occur in this scenario. However, the Committee specifically rejected that determination since “these opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.”

Therefore, the Committee concluded that implied consent does, in fact, in this situation and that “(l)awyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response. ‘Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha' moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer's client.”

I wholeheartedly agree with the Committee’s conclusion, and particularly appreciate that it reached its determination on this issue by considering how Rule 4.2 is applied to analogous forms of offline communication. Because, as I always say, the online is simply an extension of the online. New rules are rarely required for online conduct. Instead, existing rules and principles can be applied to online conduct thus providing more relevant and concrete guidance that will withstand the test of 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.


Zoom Etiquette Guidance Offered to New York Lawyers

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

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Zoom Etiquette Guidance Offered to New York Lawyers

If you regularly read my column you know that I’ve been encouraging lawyers to use technology for over a decade now. When I first started writing about technology, I highlighted the benefits that social media and blogging could offer lawyers. From there I shifted my focus to mobile computing and cloud-based tools, and then eventually artificial intelligence legal software. Regardless of which technology I was focused on at any given time, my primary goal has always been to lawyers to motivate lawyers to familiarize themselves with - and begin to use - these emerging tools.

In the early years, my efforts often fell on deaf ears. Generally speaking, lawyers wanted nothing to do with all of the newfangled technology that I was so excited about. But over time, attitudes have changed, in part because the technologies I was evangelizing were becoming part of our day-to-day lives. This entanglement of technology with mainstream culture ultimately had the end effect of changing the practice of law, whether lawyers were on board or not. And eventually, once lawyers actually tried out any given tool, they oftentimes found that it actually had a positive impact on both their personal and professional lives.

That’s why, in 2012, the American Bar Association acknowledged the indisputable influence of technology on the practice of law when it modified comment 8 to Model Rule 1.1 to state that maintaining technology competence is part of the ethical obligations of lawyers. The first states to adopt this duty of technology competence did so in 2013, and New York followed suit in 2015. Most recently, California joined their ranks, and became the 39th state to adopt this duty when the California Supreme Court approved the new rule on Feb. 18, 2021.

It’s no coincidence that this continued emphasis on technology competence has occurred in parallel with the increased reliance by law firms on remote working technologies. The global pandemic in which we now find ourselves took most everyone by surprise and resulted in a greatly accelerated rate of technology adoption by the legal profession and the general population as a whole. Social distancing requirements necessitated remote interaction, and as a result cloud-based software, including videoconferencing tools, quickly became commonplace in most households.

Notably, the rapid technology adoption did not occur without a few hiccups. In fact, it has seemed as if not a day has gone by without a Zoom fail making the news, many of which feature lawyer gaffes during Zoom court appearances. These headlines have occurred with such frequency that I recently penned a Daily Record column wherein I urged lawyers to “stop acting like idiots online.”

It would seem that I’m not the only one who is at the end of their rope when it comes to this issue, since top administrative law judges in New York State recently issued a memorandum entitled “Virtual Proceedings - Appropriate Decorum.” 

Prior to providing its recommended videoconferencing protocols for New York lawyers, the judges explained why it’s so important for lawyers to behave properly during virtual court proceedings: “The COVID-19 pandemic has required all courts across New York State to innovate and adapt in order to continue to provide the effective and efficient administration of justice and Access to Justice for all court users consistent with the highest standards…Appropriate decorum/etiquette is a necessity during all virtual court proceedings.”

Next, they provided the following guidance to New York lawyers who appear remotely in court proceedings. While the recommendations offered seem to be fairly self-evident, if recent headlines are any indication, they are a much-needed addition to the virtual toolbox of lawyers who appear in court remotely:

  • Dress in appropriate attire, as if you were appearing in-person in court
  • Display an appropriate and professional background
  • No consumption of food or drink during the proceeding
  • Remain professional and dignified
  • As in ln-Person proceedings, only one person should be speaking at a time.

Now that lawyers have this videoconferencing advice readily available, I have the utmost confidence that the salacious headlines regarding lawyers’ inappropriate behavior on Zoom will decline significantly. From here on in, I fully expect New York lawyers to be fully dressed, dignified, and polite whenever they make a virtual appearance. Capisce? Capisce.

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.


ABA weighs in on the ethics of practicing law virtually

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

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Because of the pandemic, lawyers are working remotely more than ever before, and many will likely continue to do so - at least occasionally - even after the pandemic is behind us. Now that practicing law virtually is more commonplace than ever, many different bar associations have recently handed down ethics opinions that address the ethical issues to consider when working from a remote location. Most recently, the American Bar Association weighed in on this issue on March 10th in Formal Opinion 498. In this opinion, the ABA Standing Committee on Ethics and Professional Responsibility offered ethical guidance on a host of issues that are triggered when law firm employees work remotely. The opinion covers a wide range of topics and is worth an in-depth read, but for the purposes of this article, I’m going to focus on the technology-specific recommendations.

Notably, at the outset, the Committee acknowledged that all of the ethical issues discussed apply whether a firm’s workforce is working in the office or elsewhere, but that the issues may need to be addressed differently when a firm is operating remotely.

Prior to offering guidance, the Committee first provided its definition of a virtual practice, which it stated was a “technologically enabled law practice beyond the traditional brick-and-mortar law firm.” This definition comports with the general understanding of this concept.

Next, the Committee explained the rationale behind providing this type of ethical guidance at this time. According to Committee, recent events have resulted in an acceleration of technology adoption in the legal profession and as a result, updated guidance was necessary: “Virtual practice began years ago but has accelerated recently, both because of enhanced technology (and enhanced technology usage by both clients and lawyers) and increased need.”

The Committee then turned to specific technology-related guidance, and explained that regardless of where law firm employees are working, maintaining client confidentiality is of the utmost importance. That being said, when employees work from remote locations, reasonable steps must be taken to ensure that procedures are in place that sufficiently protect client data: “(A) non-exhaustive list of factors may guide the lawyer’s determination of reasonable efforts to safeguard confidential information: ‘the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients…’"

According to the Committee, particularly sensitive client data will warrant increased protection: “(D)epending on the circumstances, lawyers may need to take special precautions…Factors to consider to assist the lawyer in determining the reasonableness of the ‘expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.’”

Next the Committee addressed the options available to lawyers that may need to encrypt some types of more sensitive data, especially when it comes to communicating with clients about confidential information electronically. The Committee explained that in some cases unencrypted email is insufficient and secure online client communications portals like the ones available in law practice management software may be necessary: “As ABA Formal Op. 477R noted, a ‘lawyer has a variety of options to safeguard communications including, for example, using secure internet access methods to communicate, access and store client information (such as through secure Wi-Fi, the use of a Virtual Private Network, or another secure internet portal)…”

Last but not least, the Committee focused on a potential, and possibly unexpected,  issue that may affect many lawyers and law firm firm employees working from home: the security of smart listening devices such as Amazon Echo or Apple’s Siri. The Committee explained that in some cases these devices should be turned off when confidential information is being discussed: “Unless the technology is assisting the lawyer’s law practice, the lawyer should disable the listening capability of devices or services such as smart speakers, virtual assistants, and other listening-enabled devices while communicating about client matters. Otherwise, the lawyer is exposing the client’s and other sensitive information to unnecessary and unauthorized third parties and increasing the risk of hacking.”

Those are just some of the issues covered in this very concise, but comprehensive opinion. I strongly suggest that you review the entire opinion since it provides ethical guidance on a number of different security issues that may be triggered when a law firm’s workforce is displaced from the office, or otherwise working remotely - something that is likely to become increasingly common in the years to come.

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.