Sui Generis--a New York law blog

ABA Weighs in on Listserv Ethics

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

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ABA Weighs in on Listserv Ethics

At first glance, you might assume that this article was published in the early 1990s and was reprinted by mistake. If so, you’d be wrong. The truth is, the American Bar Association (ABA), in its infinite wisdom, decided that May 2024—in the midst of the generative AI technology revolution—was the ideal time to address the ethical issues presented when lawyers interact on listservs, an email technology that has existed since 1986.

So hold on to your hats, early technology adopters, while we break this opinion down so that you have the ethics guidance needed to appropriately interact when using technology that has been around longer than the World Wide Web.

In Formal Opinion 511, the ABA considered whether lawyers interacting on listservs who sought advice regarding a client matter was “impliedly authorized to disclose information relating to the representation of a client or information that could lead to the discovery of such information.”

At the outset, the ABA Standing Committee on Ethics and Professional Responsibility explained that the duty of confidentiality prohibits lawyers from disclosing any information related to a client’s representation, no matter the source. Protected information is not limited to “communications protected by attorney-client privilege” and includes clients’ identities and even publicly available information like transcripts of proceedings.

Next, the Committee acknowledged that generally speaking, lawyers are permitted to consult with an attorney outside of their firm regarding a matter and may reveal information related to the representation in the absence of client consent, but only if the “information is anonymized or presented as a hypothetical and the information is revealed under circumstances in which…the information will not be further disclosed or otherwise used against the consulting lawyer’s client.” In addition, the information shared may not be privileged and must be non-prejudicial.

However, according to the Committee, this implied authority to disclose anonymized or hypothetical case-related information to other attorneys is limited to professional consultations with other lawyers. This is because “participation in most lawyer listserv discussion groups is significantly different from seeking out an individual lawyer or personally selected group of lawyers practicing in other firms for a consultation about a matter.”

The Committee noted that listservs can consist of unknown participants, and posts can be forwarded or otherwise shared and viewed by non-participants, including other lawyers representing a party in the same matter. As a result, “posting to a listserv creates greater risks than the lawyer-to-lawyer consultation.”

Given the risks, in the absence of client consent, lawyers are ethically prohibited from posting anything to a listserv that could reasonably be linked to an identifiable client, whether the intent is to obtain assistance in a case or otherwise engage on the listserv. 

Listserv use is not forbidden, however, and lawyers can interact in other ways. For example, asking more general questions, sharing news updates, requesting access to a case, or seeking a form or document template.

Finally, the Committee expanded the opinion’s rationale to other types of interactions. The Committee opined that the “principles set forth in this opinion…apply equally when lawyers communicate about their law practices with individuals outside their law firms by other media and in other settings, including when lawyers discuss their work at in-person gatherings.”

That single line, easily missed at the beginning of the opinion, ensures that the Committee’s conclusions stand the test of time. 

This opinion on listserv ethics is a necessary reminder of the importance of confidentiality in all lawyer interactions, even when using long-established technologies like listservs. While the ABA’s timing could have been better, this advisory opinion is worth a thorough read. Take a look and then keep the Committee’s advisements in mind as you interact with other lawyers online and off. 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software and LawPaypayment processing, AffiniPay companies. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].

 

New Reports Highlight Generative AI Adoption Trends in Law

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

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New Reports Highlight Generative AI Adoption Trends in Law

Generative artificial intelligence (GenAI) technology is advancing exponentially compared to technologies of years past. The pace of change is happening so quickly that it’s hard to keep up. One way to track the impact of GenAI tools on the legal profession is through survey reports, so I’m always interested when new ones are released that include data on perspectives about and rates of adoption of GenAI by lawyers.

This year, two reports with a similar focus were released. In mid-April, Thomson Reuters published the “2024 Generative AI in Professional Services Report,” (TR Report) where the survey was conducted in January and February 2024, and included data on law firm use of GenAI. Earlier in the year, the “2024 MyCase + LawPay Legal Industry Report,” (ML Report) was released. The survey for that report occurred during August and September of 2023, and the report was released in January. 

Comparing statistics from the two reports provides useful benchmarks that highlight trends in GenAI usage by legal professionals. 

The reports showed that the number of legal professionals who personally used GenAI tools for work-related reasons held steady, with 27% of respondents from both surveys using GenAI for work-related purposes. 

Similarly the data regarding how often those same individuals used GenAI was remarkably similar across the surveys. According to the TR Survey results, 42% of legal professionals who were actively using or planning to use GenAI were using the technology at least daily, and 31% were using it weekly. The ML data showed that legal professionals whose firms had adopted GenAI frequently relied on it throughout their workday, with 42% using it daily, and 29% using it weekly.

Another interesting finding from the ML Report was that for those already using GenAI, for 53%, efficiency increased somewhat, and for 24% it increased significantly. 

The tasks accomplished with GenAI were similar across both reports as well. According to the TR Report respondents, the top five use cases in law firms were legal research, document review, brief or memo drafting, document summarization, and drafting correspondence. 

For the ML report, the top use case was brainstorming (58%), followed by drafting correspondence followed (55%), general research (as opposed to legal research) (46%), document drafting (42%),  drafting document templates (39%), summarizing documents (38%), and editing documents (34%).

Concerns uniquely related to the issues presented when GenAI tools are used by legal professionals were also mirrored across the reports. The top worry of respondents from the TR Report was inaccurate responses, cited by 79%. This was followed by data security (68%); privacy and confidentiality of data (62%); compliance with laws and regulations (60%); and ethical and responsible usage (57%).

The top blockers identified in the ML Report were lack of knowledge about the technology (52%), concerns about ethical issues (39%), lack of trust in GAI output (39%), the infancy of the technology (33%), and concerns about privilege issues (25%).

Other notable data from the TR report addressed judicial perspectives on GenAI and the legal billing ramifications. First, survey responses highlighted the distrust and reticence about GenAI often expressed by members of our nation’s courts. Of the court respondents, only 8% indicated that their court systems were using or planned to use GenAI, and 60% reported there were no current plans to use it.

The perceived impact of GenAI on legal billing rates and methods was also explored. Notably, the majority of legal professionals, 58%, did not believe that GenAI would have any effect on the rates charged to clients. Over a third (39%), however, believed GenAI would lead to an increase in alternative fee arrangements. I tend to agree with those respondents and think there is a significant likelihood that sophisticated legal consumers like insurance companies and corporate counsel will put pressure on their legal providers to use GenAI to work more efficiently and thus charge more competitive, predictable legal fees.

Last but not least, the ML Report provided insight into how legal professionals expected GenAI to affect hiring practices. The survey results showed that 28% of firms planned to replace administrative functions with GenAI, followed by legal-specific functions (18%) and currently outsourced functions (13%). Another 10% shared that their firms intended to fully replace an administrative employee and 2% hoped to replace a lawyer.

These surveys highlight the steady pace of adoption of GenAI tools by legal professionals with the end result being enhanced efficiency and reduced workflow frictions. Despite the ongoing and valid concerns about accuracy and ethical issues, the legal profession has warmed up to GenAI far more quickly than the technologies that preceded it, and is gradually integrating GenAI into law firm operations. 

The times they are a-changin’ like never before. Now, more than ever, it’s essential to be open-minded and curious about emerging technologies, lest you be left behind.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software and LawPaypayment processing, AffiniPay companies. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].

 

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

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Top 5 LinkedIn Tips Every Lawyer Should Know

When I started writing this column in 2007, I often covered social media use for lawyers. However, because my interest lies in emerging technologies, the focus of my articles necessarily shifted over time as new advancements arrived that had the potential to change the legal profession.

Even though social networking may be considered old news in the technology world, online interactions continue to have a noticeable impact on the practice of law. Some platforms have gained increasing relevance while others have declined. LinkedIn is a prime example of a social media site that has gained ground since the pandemic, transforming from what was essentially an online resume repository to an active, engaging online site.

Given its significant rise, an update seemed necessary. I have over 207,000 followers on LinkedIn, so I have experience with the site and lots of advice to share! To that end, below you’ll find my top 5 tips for lawyers seeking to increase their presence on LinkedIn.

First and foremost, determine your goals. If you don’t know what you’re trying to achieve by interacting on LinkedIn, then your efforts will be wasted. Are you trying to reach potential clients? Is your intent to expand your professional network and increase referrals from colleagues? Or are you seeking to stay on top of the latest industry news and trends? Whatever your goals are, identify them before diving in. They will necessarily impact your engagement on the site.

Next, ensure that you have created a robust LinkedIn profile. Your headline should concisely describe your role and value to both clients and the profession.The headline section of your profile should concisely describe what you do and the value you bring to your clients and the profession. The first few words of your headline will appear whenever you comment on someone else’s post so are very important. Only include the most relevant work history, and carefully consider whether you want the dates that you obtained your education degrees to appear on your profile. Your age and stage of life will necessarily impact your preferences. 

The third tip is to post with a regular cadence. Your posting frequency will depend on your goals and the amount of time you have available to focus on your LinkedIn presence. Whether you post once a week or every other day, make sure to stick to your plan. That way your followers will know when to expect to hear from you. The LinkedIn algorithm also frowns on erratic posting patterns, so make a plan and stick to it. You’ll reach more connections that way, leading to greater engagement and success.

Fourth, post thoughtfully. Share a mix of personal observations intermixed with professional updates. Avoid blasting your successes and triumphs into the ether in the absence of other updates that include your personal and insightful perspective on trends or news of interest to your followers. The algorithm favors early morning posts that include an image, so keep that in mind. Finally, post links to any news stories or other website links in the comments rather than in the post since LinkedIn prefers posts that don’t send users to other websites.

Last but not least, carefully curate your network. Follow people who interest you and conform to your goals, develop a community of like-minded individuals, and consistently engage with your network. Read the posts of others and like, comment, and share them, when appropriate. LinkedIn, like all social media sites, is about engagement, so engage with others rather than talking at them from your virtual podium.

LinkedIn is a very different site than it was before the pandemic. Its newfound levels of engagement from professionals worldwide have resulted in a dynamic community of professionals that should not be overlooked. So don’t rest on your laurels. Take advantage of the many advantages it offers by following the I shared above. By implementing these tips, you’ll be well-positioned to maximize your impact and networking potential on LinkedIn.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software and LawPaypayment processing, AffiniPay companies. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].