Daily Record--Legal Currents Column

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.

*****

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. 


North Carolina on the ethics of mining social media for evidence

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

*****

These days, the vast majority of people, including lawyers, interact on social media. For many, social media platforms are a part of their daily lives and are a primary way of communicating with family and friends.

That’s why social media sites are a goldmine when it comes to obtaining evidence for pending litigation. So it’s no surprise that lawyers began to mine social media for evidence more than a decade ago, and when that began to occur, the ethics committees from various jurisdictions weighed in on how to ethically obtain evidence on social media.

The first to do so was the Philadelphia Bar Association in Op. 2009-02 which was followed by, among others, the New York State Bar (Op. 843 in 2010), the New York City Bar (formal Op. 2010-2), the San Diego Bar (Opinion 2022-2), the Oregon State Bar (Op. 2013-189), the Pennsylvania Bar (Formal Op. 2014-300), the Massachusetts Bar (Op. 2014-T05), the DC Bar in 2016), and the Maine Bar (Op. 217 in 2017).

A few months ago, the North Carolina Bar joined their ranks and addressed this issue as well. In mid-July the State Bar Council adopted 2018 Formal Ethics Opinion 5. At issue in this opinion was whether and under what circumstances lawyers may ethically “either directly or indirectly, seek access to social network profiles, pages, and posts…belonging to another person.” The conclusions reached in this opinion were in agreement with the those reached by the majority of jurisdictions on most issues, with a few notable exceptions.

At the outset, like all jurisdictions thus far, the Ethics Committee concluded that lawyers or their agents may view information obtained from publicly viewable social media profiles.

Notably, however, the Committee weighed in on an issue that is typically addressed in relation to researching jurors on social media sites as opposed to parties or witnesses: whether a passive notification from a social media site indicating that a lawyer has viewed the individual’s social media profile constitutes a “communication” from the lawyer. The Committee concluded that it did not and was instead a communication from the social media service. The Committee explained that a small number of views and notifications would be permissible but that lawyers “may not engage in repetitive viewing of a person’s social network presence if doing so would violate Rule 4.4(a)” which prohibits lawyers “from using means that have no substantial purpose other than to embarrass, delay, or burden a third person, and from using methods of obtaining evidence that violate the legal rights of such a person.”

Next the Committee concluded that lawyers are forbidden from using deception to access social media information located behind a privacy wall. That being said, lawyers may, using their own true identities, request access to an unrepresented person’s social network presence behind a privacy wall. The Committee explained that “(t)he person contacted has full control over who views the information on her social network site (and the) grant of the lawyer’s request, without additional inquiry, does not indicate a misunderstanding of the lawyer’s role.”

However, the Committee determined that it was ethically impermissible for lawyers or their agents to request access to a represented person’s restricted social media presence. According to the Committee, absent express consent from the represented person’s attorney, “the request interferes with the attorney-client relationship and could lead to the uncounseled disclosure of information relating to the representation.”

The last issue considered by the Committee is of particular interest since, to the best of my knowledge, it has not yet been addressed by any other jurisdictions. Specifically the Committee considered whether a lawyer may request or accept information from a third party who has access to the restricted information found behind the privacy wall of a person’s social media profile. According to the Committee, doing so is perfectly acceptable for both represented and unrepresented persons. The Committee compared this to the similar offline scenario where lawyers may obtain other types of evidence relevant to a client’s matter from witnesses.

According to the Committee: “(W)hen a lawyer is informed that a third party has access to restricted portions of a person’s social network presence and can provide helpful information to the lawyer’s client, the lawyer is not prohibited from requesting such information from the third party or accepting information volunteered by the third party. Similarly, a lawyer may accept information from a client who has access to the opposing party’s or a witness’s restricted social network presence…However, the lawyer may not direct or encourage a third party or a client to use deception or misrepresentation when communicating with a person on a social network site.”

All in all, an interesting opinion that is worth a read, even if you don’t practice in North Carolina. And if you aren’t already mining social media for information relevant to your clients' cases, then what are you waiting for? There is undoubtedly useful information to be found, and the failure to seek it out arguably amounts to malpractice in this day and age. So there’s no better time than the present to get up to speed on the ins and outs of ethically mining social media for evidence - and this opinion is a great place to start.

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 Ethics Opinion On Judges, Social Media, Friendships, and Disqualification

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

*****

Judges are supposed to be neutral arbiters. Unfortunately, in the real world, that’s sometimes easier said than done.

Ideally, judges would have no connection to the parties and lawyers appearing before them, and thus would be fully impartial. Judges, however, are human. They have close personal relationships, friendships, and many acquaintances. Judges are also lawyers, and as a result, they often personally know the lawyers appearing in their courtrooms. Those relationships are not supposed to affect the their rulings, but if there is the potential that they might, judges are required to disqualify themselves.

A simple concept in theory, but one that isn’t nearly as clear cut in practice. Determining which relationships conflict with the appearance of impartiality is rarely an easy feat. Not surprisingly, the advent of social media connections to our social infrastructure have added a new layer of complexity that some have suggested necessarily complicates this determination.

That’s why many courts and ethics committees have begun to consider the issue of whether judges’ social media connections with the lawyers appearing before them warrant disqualification. For example in 2012, Florida’s Fourth District Court of Appeal addressed this issue in Pierre Domville v. State of Florida, No. 4D12-556 and disqualified a judge from overseeing a case because the judge was Facebook “friends” with the prosecuting attorney.

Then in 2018, the Third District Court of Appeal in Florida addressed the very same issue in Law Offices of Herssein and Herssein v. United States Automobile Association, No. 3D17-1421, but reached a different conclusion and declined to disqualify a judge as a result of his Facebook connection with an attorney appearing in his court, since online friends are “not necessarily (friends) in the traditional sense of the word.” Later that same year, the Supreme Court of Florida considered this case on appeal in Herssein and Herssein v. United States Automobile Association, No. SC17-1848 and upheld this ruling, concluding that a Facebook friendship between a judge and an attorney appearing before that judge was not, in and of itself, a sufficient basis for disqualification of the judge.

That approach makes the most sense. After all, a social media connection is simply one piece of the puzzle, and only serves as evidence of some sort of social connection or relationship. For that reason, I was heartened to read a footnote echoing this sentiment in a recent ABA ethics opinion.

In Formal Opinion 488, the Standing Committee on Ethics and Professional Responsibility considered the issue of whether and when the social or close personal relationships of a judge warrant disqualification. The Committee concluded that in making this determination the disqualification inquiry must focus on assessing the nature and quality of a judge’s relationship with the attorney in question.

Notably, in footnote 11, the Committee acknowledged that when reviewing a judge’s friendship with a lawyer, a social media connection alone is not dispositive:

“Social media, which is simply a form of communication, uses terminology that is distinct from that used in this opinion. Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion. For example, Facebook uses the term “friend,” but that is simply a title employed in that context. A judge could have Facebook “friends” or other social media contacts who are acquaintances, friends, or in some sort of close personal relationship with the judge. The proper characterization of a person’s relationship with a judge depends on the definitions and examples used in this opinion.”

In regard to the issue of whether disqualification is required when a judge has a social connection or close personal relationship with an attorney, the Committee provided the following guidance: “(J)udges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances. Judges’ disqualification in any of these situations may be waived in accordance and compliance with Rule 2.11(C) of the Model Code.”

In other words, relationships - including those of judges - are necessarily more complex than a single online connection. Whether disqualification is appropriate in any given case depends on the nature and extent of the relationship. A social media connection is simply one factor to consider. To conclude otherwise would fly in the face of reality and the true nature of human relationships. After all, social media connections, while relevant to this determination, do not a relationship make.

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. 


Run a 21st-century law firm with these books

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

*****

Run a 21st-century law firm with these books

Running a small law firm isn’t easy. Practicing law is a full-time job in and of itself, and as a result most small firm lawyers don’t have the luxury of letting others run the back-end of their law firm. Instead, they’re often responsible for many of the day-to-day tasks involved in managing the business end of their practices, whether it’s hiring employees, managing the books, invoicing and collecting payments from clients, or marketing their practice.
And then there are the administrative and IT functions that small firm lawyers take on themselves. These can include handling client intake, managing calendars, drafting documents, choosing and maintaining computer hardware, and selecting software for the firm.
No wonder you sometimes feel overwhelmed! Because you singlehandedly take on so many different roles, there’s too much to do and not enough hours in the day. You need all the help you can get! Fortunately, there are lots of books available designed to do just that: provide you with the guidance you need to run your small law firm efficiently and profitably. What follows are a few of my top recommendations.
First, there’s “Solo By Choice: How to be the Lawyer You Always Wanted to Be” and the “Solo By Choice, the Companion Guide,” both written by lawyer Carolyn Elefant. These books walk you through the ins and outs of starting your own law firm and cover everything you need to know about starting and managing a successful solo or small firm practice.

Next up is “The 2019 Solo and Small Firm Legal Technology Guide,” written by Sharon D. Nelson, John W. Simek, and Michael C. Maschke.  In this book, which is updated and revised annually, you’ll learn all about how to make smart technology decisions for your law firm. This book will help you sift through your technology choices, which range from hardware options to legal software tools designed to simplify the lives of solo and small-firm lawyers.

Speaking of technology, if you have senior lawyers in your law firm who are either resistant to technology or are struggling to keep up, make sure to invest in a copy of “Technology Tips for Seniors, Volume 2.0,” written by Ashley Hallene and Jeffrey M. Allen. This book includes a mobile device app guide and offers lots of other useful information that will help senior lawyers improve their productivity by learning about, understanding, and using technology.

Another book to consider if you’re seeking ways to innovate and stand out in today’s increasingly crowded legal marketplace is “Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in the Law.” In this book, author Michele DeStafano explains why the legal industry is in the middle of an unavoidable transformation, and provides ideas to help lawyers innovate in order to succeed in the new world order.

“How to Capture and Keep Clients: Marketing Strategies for Lawyers, Second Edition” is another book to read for advice on how to successfully market your law firm in 2019. This book is edited by jennifer j. rose and includes chapters from more than 27 lawyers and legal marketing experts who offer lots of great legal marketing ideas and advice.

As you put all of your learnings into action and your firm begins to thrive, you’ll no doubt seek to grow your firm by hiring new employees. That’s where “Effectively Staffing Your Law Firm, 2nd Edition” comes in. This book is also edited by jennifer j. rose and each chapter is written by experts - many of whom are lawyers - and covers everything you need to know about hiring staff, firing staff, and everything in between.

And last but not least, as you begin the process of hiring new employees, you’ll most likely encounter a Millennial or two along the way. If so, you may be struggling to understand your new hires. That’s where “What Millennial Lawyers Want” comes in. In this book, author Susan Smith Blakely explains what makes this generation tick and how managing law firm partners can change their outlook and embrace the many qualities that make Millennial employees a unique and valuable asset for law firms.

So what are you waiting for? Invest in a few of these books today and then put your newfound knowledge to work. In no time, you’ll be reaping the benefits of your investment and will be on the path to a successful and profitable law practice!

 

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. 


Lawyers and cybersecurity: What are your ethical obligations?

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

*****

Lawyers and cybersecurity: What are your ethical obligations?

If you’re practicing law in 2019, there’s no escaping technology. One way or another, you’re using technology as part of your day-to-day practice, whether it’s the internet, email, mobile devices, or cloud-based legal software. Technology is an unavoidable - and as a result, so too is the possibility of cyberattacks and breaches.

In the wake of the Equifax and Capital One breaches, along with countless other breaches that have come to light in recent years, experts warn that it’s not a matter of if you’ll be breached, but when. With that in mind, what’s a lawyer to do when it comes to cybersecurity? What are your ethical obligations and how do you ensure that your firm is in compliance?

This very issue was addressed by the Maine Bar Association in Opinion No. 220 earlier this year. In that opinion, the Professional Ethics Commission answered the following question: “What are a lawyer’s ethical obligations to understand the risks posed by technology, to prevent a cyberattack or data breach, and to respond once one occurs?”

According to the Commission, lawyers have an ethical obligation to take steps to prevent breaches from occurring and a corresponding set of duties that are triggered once a breach occurs.

At the outset, the Commission addressed lawyers obligations to prevent a cyberattack, and emphasized the importance of technology competence: “The overriding obligation is to know what the technology does, what it does not, and how to use it safely…Keeping abreast of practice changes means seeking education on evolving technology on a regular basis in order to maintain competence in its use.”

Notably, the Commission explained that while lawyers who lack technological expertise are permitted to outsource this requirement, they must nevertheless have a basic understanding of the technology being used: “A lawyer who lacks individual competence to evaluate and employ safeguards to protect client confidences and secrets should seek education from an expert or associate with another lawyer who is competent…However, the Commission does not mean to suggest that it endorses a complete ignorance of technology just because an associated lawyer or staff member knows all about it. A baseline understanding of, and competence in, the technology used in the practice of law must be maintained by every lawyer.”

Next the Commission turned to breaches, explaining that absolute security is an impossibility: “(T)he standard for measuring ethical conduct is not one of strict liability, but reasonableness.”

According to the Commission, breach prevention involves a two-step process: “(1) supervising the use of technology by lawyers and staff to ensure it is consistent with their training and instruction, and (2) monitoring the status of the technology itself in order to reveal attacks and breaches as soon as reasonably detectible.”

It’s also important to prepare for a breach and ensure that a plan is in place to address a breach or cyberattack. That’s why the Commission recommended “creating a plan to address known or suspected security breaches, including the identification of persons to be notified.”

According to the Commission, once a cyberattack or breach occurs, lawyers’ ethical obligations include: 1) taking reasonable actions to stop or contain the attack or breach, 2) investigating the attack or breach, and 3) notifying affected current and former clients.

Note that while the Maine Commission advised that former clients must be notified, a different conclusion was reached in ABA Formal Opinion 483 (online: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_op_483.pdf), which was handed down in October 2018. In that opinion, the ABA Committee explained that it was “unwilling to require notice to a former client as a matter of legal ethics in the absence of a black letter provision requiring such notice.”

Accordingly, in light of the conflicting conclusions on this issue, if you aren't a Maine attorney, I would recommend that you carefully review your jurisdiction's laws, regulations, and ethical guidelines to determine whether notifying former clients of a breach is required.

Does your firm have a plan in place to address cyberattacks and breaches? If not, what are you waiting for? You can take steps to prevent a breach and ensure that your firm is prepared should one occur. But in order to be prepared, you need a plan. And what better time than now?

 

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. 


In 2019, lawyers are using mobile and cloud computing more than ever

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

*****

 

In 2019, lawyers are using mobile and cloud computing more than ever

A little over a decade ago, the mobile revolution was launched when the iPhone was released in 2007. Just one year earlier, Amazon rolled out Amazon EC2, their first cloud computing service, and now, in 2019, many of the most popular websites, including Netflix, Pinterest, and Reddit are run on cloud servers hosted by Amazon Web Services.

It’s no coincidence that mobile and cloud computing tools launched so close in time. After all, mobile and cloud computing go hand and hand, and together they make today’s computing possible. This is because mobile devices alone are limited by their memory, processing power, and battery life. But when mobile phones and tablets are used with cloud computing tools, the data processing and storage needed to make mobile apps useful and functional can happen outside of mobile devices on cloud computing servers.

This combined utility has contributed to the significant rise in the use of cloud and mobile computing by lawyers in recent years. According to the American Bar Association’s most recent Legal Technology Survey, small firm lawyers are making the move to cloud-based legal software more than ever before, with 55% of lawyers surveyed reporting that they’ve used cloud computing software for law-related tasks over the past year, up from 38% in 2016.

And many more are thinking of switching to cloud-based legal software in the year to come. Small law firms were the most likely to plan to do so. The survey results showed that firms with 2-9 lawyers led the way at 15%. Next up was law firms with 10-49 lawyers at 14%, followed by firms with 50-99 lawyers at 13%.

According to the survey, the reasons for using cloud computing software are many. Ease of access from any location was the most popular reason (68%), followed by 24/7 availability (59%), and the affordability and the low cost of entry (48%). Other reasons provided by the lawyers surveyed included robust data back-up and recovery (46%), the ability to get the software up and running quickly (40%), the elimination of IT and software management requirements (34%), and last but certainly not least, better security than the firms were able to provide in-office (31%).

The top reason cited for making the switch – ease of access from any location – isn’t surprising since lawyers are more reliant on mobile devices in 2019 than they’ve ever been. In fact, according to the survey, 95% of lawyers reported that they use their smartphones outside of the office for law-related purposes. And, nearly half of all lawyers – 49% – reported that they used their tablet for law-related purposes while away from the office.

The most popular type of phone used by lawyers was iPhones, with 72% preferring it. Androids were next at 27%, followed by Blackberrys (2%) and then Windows Mobile (1%). Notably, despite the prominence of iPhone use by lawyers, 43% of lawyers surveyed reported that their firms supported multiple platforms for smartphones, rather than just one type of smartphone.

50% of lawyers have downloaded a legal-specific app to their smartphone, with legal research apps being the most popular. Similarly, 50% of lawyers have downloaded a general business app to their smartphone. Dropbox was the most popular, with 77% of lawyers reporting that they’d downloaded it. LinkedIn was next at 63%, followed by Evernote (37%), LogMeIn (15%), and DocsToGo (14%).

Do any of these statistics about how small firm lawyers are using cloud-based legal software and mobile devices surprise you? How mobile are you compared to your colleagues? And, is your firm in the cloud yet? If not, maybe it’s time make the switch.

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. 


The legality of probation conditions that allow searches of electronic devices

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

*****

Technology creep is an unavoidable phenomenon. These days, technology is impacting just about every aspect of our lives, and its effects are unavoidable. The criminal justice system certainly isn’t immune from this trend, with evidence of this fact cropping up on a near daily basis.

One situation I’ve covered in the past is the ways that technology intersects with the conditions of probation and parole. For example, in 2015, I wrote about Hector Salvador Lopez, a young man in California whose probation term included a condition requiring that he provide his probation officer with the passwords to any “social media sites” that he participated on. Mr. Lopez challenged that condition in People v. Lopez, 2016 WL 297942 (Cal. App. Ct. Jan. 25, 2016), claiming that it was unreasonable and unconstitutionally vague. He asserted that the term “social media site” was unclear because it could apply to any number of websites, including sites with a social element but which are not commonly referred to as social media sites. The Court rejected his assertion and the condition remained in effect.

More recently, on August 15th of this year, the Supreme Court of California considered a similar issue: whether a probation term properly included the requirement that the probationer be required to submit to an electronics search. Specifically, in Ricardo B, S230923 (online: https://tinyurl.com/InReRicardoP), the Court was asked “to decide whether an electronics search condition like the one at issue here is ‘reasonably related to future criminality.’”

Specifically, the probation condition at issue required that the probationer submit to a search of “electronics including passwords under [his] control…at any time of day or night.”

At the outset, the court noted the sweeping nature of this condition: “The plain language of this electronics search condition would require Ricardo to provide probation officers full access, day or night, not only to his social media accounts but also to the contents of his e-mails, text messages, and search histories, all photographs and videos stored on his devices, as well as any other data accessible using electronic devices, which could include anything from banking information to private health or financial information to dating profiles.”

The Court also acknowledged the invasiveness of the provision and the privacy implications that it triggered: “The warrantless search of a juvenile’s electronic devices by a probation officer, a government official, plainly raises privacy concerns of a different order than parents checking their children’s cell phones.”

Next the Court turned to the specifics of Ricardo’s case, noting that there was no correlation between any crimes he’d committed in the past and probationary search provision. The Court explained that “nothing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct. The juvenile court instead relied primarily on indications that Ricardo had previously used marijuana and its generalization that ‘minors typically will brag about their marijuana usage or drug usage, particularly their marijuana usage, by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.’”

Accordingly, the Court concluded that after balancing the invasive nature of the probation requirement against the purported reasons for its imposition by the sentencing court, the clause should be removed from his probationary conditions. The Court held that because “the record here…contains no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity…(and) is insufficient to justify the substantial burdens imposed by this electronics search condition. The probation condition is not reasonably related to future criminality and is therefore invalid…”

A just result if I’ve ever seen one. As the Court noted, the data stored on electronic devices often includes some of the most personal and intimate information available about a person and those they love. For that reason, sentencing courts should tread lightly and refrain from allowing probation officers unfettered access to this data absent strong evidence that doing so would forward the goals of probation in light of the probationer’s history and crime.

This is because governmental access to electronic data should always be carefully and thoughtfully considered and should be permitted only in very limited circumstances. Privacy rights should always trump law enforcement interests, especially where technology is concerned. While that doesn’t always happen, it’s heartening to see that privacy concerns prevailed in this case.

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. 


Small firm lawyers in 2019: geographic data, earnings, career satisfaction and more

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

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Small firm lawyers in 2019: geographic data, earnings, career satisfaction and more

Running a small law firm in 2019 isn’t easy, in part because the legal marketplace is in the midst of an unprecedented transformation. 21st century technologies and globalization are significantly impacting the business of law and continue to disrupt and alter the competitive landscape. Small firm lawyers are not immune from the rapid pace of change, and market forces have significantly altered many aspects of small firm practice.

For evidence of this you need look no further than the results of a number of different studies that were released this year. These reports include a vast array of data on small firm lawyers and their practices, including demographics and earnings data, along with insights on the pace of change and how law firms and lawyers are being affected by it. Here are some of the more interesting statistics from those reports.

Lawyer demographics and growth

For starters, according to the 2019 ABA National Lawyer Population Survey, lawyers are concentrated in regional pockets throughout the United States. The five states with the highest number of resident active attorneys living in the state are:

New York – 182,296
California – 170,117
Texas – 91,244
Florida – 78,448
Illinois – 62,720
D.C. – 56,135

In comparison, the same report shows that Alaska, Delaware, West Virginia, North Dakota, and Wyoming have a combined total lawyer population of less than 14,000.

Interestingly, according to another study, the ABA’s 2019 Profile of the Legal Profession Report, the states with the largest lawyer populations aren’t necessarily the states whose lawyer numbers are growing the quickest. Some of the states with the highest percentage of growth over the last decade were Florida with 28% growth, followed by Utah (27%), North Dakota (24%), North Carolina (22%), Texas (22%), and New York (19%). And D.C. has the most lawyers per capita, with 56,000 lawyers, with lawyers representing 1 out of every 13 D.C. residents.

Lawyer earnings

Next up, let’s take a look at lawyer earnings. According to the data from ABA’s 2019 Profile of the Legal Profession Report, the average lawyer salary is $144,230. Notably, lawyer earnings have increased far more slowly since the 2008 recession, and lawyer wages have increased only 9.3% in the past 5 years, compared to the 45% increase seen between 1997-2002.

Interestingly, according to the report, lawyers come in 4th overall for average industry wage, behind doctors, CEOs, and dentists.

You probably won’t be surprised to learn that lawyer earnings vary greatly by region. The top 5 metropolitan regions where lawyers earned the most in 2018 were: 1) San Jose-Sunnyvale-Santa Clara, CA ($207,950), 2) San Francisco-Oakland-Hayword, CA ($188,070), 3)Washington-Arlington-Alexandria, DC-VA-MD ($179.980), 4) Los Angeles-Long Beach-Anaheim, CA ($176,020), and 5) Houston-The Woodlands-Sugar Land, TX ($175,380).



Also of interest is that according to the results of the Martindale-Avvo 2019 Attorney Compensation Report, small law firm earnings have increased overall in the past year. The survey results indicate that the mean earnings for the lawyers surveyed increased from $194,000 in 2017 to $198,000 in 2018. Similarly, the median earnings likewise increased from $135,000 in 2017 to $140,000 in 2018. 

Also notable are the top 5 most profitable practice areas. In 2018 they were: 1) medical malpractice ($267,000 on average), 2) personal injury ($254,000), 3) worker’s compensation ($226,000), 4) intellectual property ($224,000), and 5) business ($218,000).



Career satisfaction



And last but not least, the lawyers surveyed for the Martindale-Avvo Report were asked whether, if given a choice, they’d choose law as a career again. The vast majority said they would (71%). 74% reported that they’d choose the same practice area(s), and 57% said they’d choose that same work setting.

What about you? Would you do it all over again? And if so, what would you change, if anything?

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. 


The mindful lawyer: apps and other resources

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

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The Mindful Lawyer: Apps and Other Resources

It’s not easy being a lawyer. Lawyering can be a contentious, combative line of work. Your days are filled with constant and sometimes unexpected deadlines. The stress of practicing law is further compounded by the unrelenting pressure to bring in new books of business. And let’s not forget about billable hour requirements, which only add to the pressure cooker. And in some cases, despite your best efforts, you’re unable to achieve the desired results for your clients.

For all of these reasons, lawyers suffer from depression at twice the rate of the general population, and 40% of law students are clinically depressed before they even graduate. Suicide rates for lawyers are nearly 4 times higher than other professions and 7 in 10 lawyers report that they would change careers if the opportunity arose.

In other words, lawyering isn’t always easy. The good news is that there are ways to address the stresses that go hand in hand with practicing law. One of the most effective ways that you may have not yet considered is to incorporate mindfulness into your daily life.

Fortunately, there are lots of mindfulness apps and tools available for lawyers seeking to reduce heir stress levels through mindful thinking. Here are some of my favorites, all of which are low-cost or free resources designed to get you on your way to a more stress-free existence.


Let’s start with two very helpful books. The first is Dan Harris’ book “Ten Percent Happier.” In this book, Harris provides a great overview of the benefits of mindfulness from a refreshing, matter-of-fact perspective and explains very convincingly what a difference it can make if you’re able to use mindfulness to become just 10% happier.

Another book worth checking out is “The Anxious Lawyer,” an ABA-published book written by attorneys Jeena Cho and Karen Gifford. This book offers an 8-week guide in which mindfulness is used as a tool to help you achieve a more satisfying and balanced law practice. You can also access guided meditations based on the teachings of the book here.

Another great mindfulness resource is your smartphone. There are a vast assortment of mindfulness apps available for both Android and Apple devices. So much so that it can be difficult to sift through the plethora of options available to you.

But guess what? You’re in luck! I’ve made it easier by doing the leg work for you.

First, let's start with my two favorite mindfulness apps: Headspace and Calm. Both are very well known and when they were first released years ago, offered a large number of free mindfulness meditations. But as a result of their increasing popularity, both have shifted to paid subscription plans, which are well worth the price once you choose the one is the best fit for your needs.

In the meantime, both offer a few free guided meditations which you can try out. Additionally, if you have Apple TV, all of Calm’s meditations are available for free. And if you use Amazon’s Alexa, you can access a free daily guided meditation from Headspace via the Headspace skill. So those are two other very convenient ways to test out each app’s meditation offerings.

If you’d rather not invest in a monthly subscription payment in order to access guided meditations, then check out a free meditation app that I recently discovered: Smiling Mind. It’s an app created by an Australian not-for-profit organization, and it offers a vast array of free guided meditations and meditation series.

Next, if you wear an Apple Watch, make sure to take advantage of the free, built-in Breathe app. This app reminds you periodically, using a schedule that you determine, to take a minute to focus on your breathing. You also have the option of choosing the “Breathe” watch face. For your Apple Watch. This makes it even easier for you to access the app and check in with yourself by taking a mindful minute for breathing.

And don’t forget to take advantage of any support services offered by your local bar association. As mindfulness becomes increasingly common, bar associations across the country are incorporating mindfulness classes into their CLE schedules and are also providing members with other types of support services to help address stress-related issues. For example, if you’re a member of the Monroe County Bar Association locally, there is a “Lawyers Support Group for Self-Care and Well-Being,” which meets monthly.

And last, but not least, to learn more about lawyer mindfulness and see if it might be a good fit for you, make sure to watch this video recording of a webinar on mindfulness for lawyers with Jeena Cho.

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.