Daily Record--Legal Currents Column

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. 


NYC Bar addresses Bitcoin as payment for legal services

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

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NYC Bar Addresses Bitcoin as Payment for Legal Services

Cryptocurrency, such as Bitcoin, while still an unusual form of payment, is becoming more common and familiar to the average person. As a result, the issue of whether lawyers can ethically accept Bitcoin as payment for legal services is an issue that ethics committees across the country have begun to grapple with.

The latest to do so is the New York City Bar Associations’s Professional Ethics Committee. Earlier this month, the Committee addressed this very issue in Formal Opinion 2019-5.

Specifically, the issue considered by the Committee was whether “a fee agreement requiring the client to pay for legal services in cryptocurrency (is) a business transaction governed by Rule 1.8(a)?”

At the outset, the Committee noted that Rule 1.8 is inapplicable to ordinary fee arrangements between lawyers and their clients, since “ordinary fee agreements are relatively easy to understand, do not entail complex negotiation, and do not involve a significant risk that the client will repose misplaced trust in the lawyer to protect the client’s interests.”

However, according to the Committee, unlike traditional fee agreements, some contemplated cryptocurrency fee agreements may trigger the requirements of Rule 1.8. The Committee explained that whether the fee agreement regarding cryptocurrency payment constitutes a “business transaction” will depend on the way in which the lawyer and client intend to use cryptocurrency as payment.

According to the Committee, Rule 1.8 would not apply to the following scenario:
“The lawyer agrees to provide legal services at an hourly rate of $X dollars, which the client may, but need not, pay in cryptocurrency in an amount equivalent to U.S. Dollars at the time of payment.”

The Committee explained that Rule 1.8 is inapplicable because “the fee agreement is, in our view, an ordinary one where the lawyer is simply agreeing as a convenience to accept a different method of payment but the client is not limited to paying in cryptocurrency if it is not beneficial to do so. The lawyer and the client do not have to resolve terms as to which they may have differing interests. Cryptocurrency functions merely as an optional way of transmitting payment.”

However, in these 2 situations, Rule 1.8 does apply:

1. “The lawyer agrees to provide legal services for a flat fee of X units of cryptocurrency, or for an hourly fee of Y units of cryptocurrency.”
2. “The lawyer agrees to provide legal services at an hourly rate of $X dollars to be paid in cryptocurrency.”


The Committee determined that Rule 1.8 applies in these situations since both constitute a “business transaction.” This is because there are increased complexities presented in each scenario relating to accepting cryptocurrency as payment that would require the lawyer and client to negotiate certain variables and and issues that will arise due to the proposed payment terms.

For that reason, the Committee concluded that “(a) fee agreement requiring the client to pay cryptocurrency in exchange for legal services is subject to Rule 1.8(a) if the client expects the lawyer to exercise professional judgment on the client’s behalf in the transaction. In that case, the lawyer must comply with the procedural requirements of Rule 1.8(a)(1)-(3) before entering into the fee agreement.”

As such, the Committee explained that in both situations, the lawyers must comply with the requirements of Rule 1.8, which require that:

1) “(T)he transaction is ‘fair and reasonable to the client’ and must disclose the terms of the transaction in writing and ‘in a manner that can be reasonably understood by the client…’”
2) “(T)he lawyer must advise the client, in writing, about the desirability of seeking separate counsel and must then give the client a reasonable opportunity to consult separate counsel.”
3) “(T)he client must understand and agree to “the essential terms of the transaction, and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction..The lawyer must secure the client’s ‘informed consent’…in writing.”

The bottom line: accepting cryptocurrency as payment for legal services isn’t impermissible in New York, but it’s important to tread lightly and think through your options carefully prior to doing so. The good news is that if you’re a New York lawyer and have been pondering whether to accept Bitcoin as payment for legal services, this opinion offers some very helpful and timely guidance.

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. 



NYC bar revisits New York lawyers and virtual law offices

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

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NYC Bar Revisits New York Lawyers and Virtual Law Offices


Lawyers have been practicing law remotely for many years now, first via remote access tools and more recently by using cloud computing software, such as cloud-based law practice management software. Not surprisingly, as cloud computing legal software has become increasingly common in law firms, so too has the occurrence of practicing law virtually.

The ethical issues posed by New York lawyers practicing from virtual law offices (VLO) have been grappled with repeatedly in recent years. As.a result, I’ve often written about many of then different ethics opinions and legal decisions that have been handed down regarding those issues.

The most recent opinion addressing lawyers and virtual law firms was handed down by the New York City Bar Association’s Committee on Professional Ethics. In March it issued Formal Opinion 2019-2, noting that he opinion replaced its earlier opinion, 2014-2, which I wrote about previously. The reason The Committee replaced its earlier opinion was so that it could take into account the subsequent determinations of “the New York Court of Appeals and the United States Court of Appeals (which) held that Section 470 requires lawyers admitted in New York but who reside in another state…maintain a physical law office within New York State.”

At issue in the March opinion was whether a solo practitioner who did not intend to have a traditional law firm, and instead planned to work from a home office while using a VLO for some purposes such as client meetings and service of process, could use the VLO’s physical address as the “principal law office” address for advertising purposes pursuant to Rule 7.1(h), and also on the firm’s business cards, letterhead, and website. For purposes of the opinion, a VLO was understood to be a “a facility that offers business services and meeting and work spaces to lawyers on an ‘as needed’ basis.”

One reason that this is such an important issue is that lawyers who work mostly from a home office are often reluctant to use their home address for attorney registration and advertising purposes. Requiring them to do so would stifle innovation in law practice and prevent New York lawyers from providing affordable and superior client service by taking advantage of emerging technologies.

Fortunately, the NYC Bar recognized this fact, and declining to adopt New Jersey’s “bona fide office rule,” which requires that lawyers maintain a fixed, specific, and full-time physical location where most law office functions occur, reasoning that “(s)uch a requirement would unnecessarily burden busy solo practitioners who spend most days in court and may have no full-time support staff.”  

The Committee explained that technology has drastically impacted the practice of law, and as a result, the concept of a “law office” has changed over time: “In recent years, the concept of a ‘principal law office’ has evolved somewhat as a result of significant advances in technology which provide an attorney with the flexibility to carry out a variety of activities at different locations and under varying circumstances. The term does not necessarily mean continuous physical presence but, at a minimum, it requires some physical presence sufficient to assure accountability of the attorney to clients and to the court.”

The Committee then concluded that a VLO can satisfy the requirements of a “principal law office” in New York: “(A) VLO as described in this Opinion includes a physical facility at which a lawyer may meet with clients and receive service of process…(A)ssuming the VLO qualifies under Section 470, it may be identified as a lawyer’s ‘principal law office’ under Rule 7.1(h).”

This is a notable and timely opinion. Certainly legal ethics should not be sacrificed in the face of change, but neither should ethics prevent or discourage lawyers from embracing change. Fortunately, in this opinion the Committee strikes the right balance and provides much-needed guidance for New York lawyers seeking to take advantage of 21st technologies in their virtual practices.

 

 

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. 


New York court allows smartphone search in absence of a warrant

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

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New York Court Allows Smartphone Search in Absence of a Warrant

Smartphones have been around for 12 years now and during that time, they’ve become indispensable for many of us. They are small computers that we hold in the palms of our hands that provide us with access to the world. We use them to obtain information, share information, connect with friends and family, conduct work, and communicate, among other things. Smartphones have become central to the lives of most Americans. They’re the first thing we look at when wake up and the last thing we look at before going to sleep.

So it’s no surprise that in recent years, law enforcement officers have often sought access to smartphones in the course of their investigations. And as a result, courts have increasingly grappled with the constitutional issues presented by these requests.

For example, the United States Supreme Court addressed the issue of whether law enforcement could obtain historical cell phone records last year in Carpenter v. U.S., 138 Sup. Ct. 2206 (2018). In that case, the Court determined that a warrant was required in order to access the geolocation data stored in historical cell phone records.

But when it comes to law enforcement access to real-time cell phone data, the law reminds unsettled. In People v. Gordon, 58 Misc. 3d 544 (Sup. Ct. 2017), the issue presented was whether the pen register statute applied to the use of a cell site simulator to determine a suspect's location via geolocation data obtained from a cell phone. The Court concluded that cell site simulators were more akin to GPS devices given the invasive nature of the information collected by cell site simulators and thus “the use of a cell site simulator intrudes upon an individual's reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case.”

A similar conclusion was reached in Massachusetts Supreme Court opinion Commonwealth v. Almonor, No. SJC-12499 (2019), which I wrote about in April. In that case, the Court considered whether “whether police action causing an individual’s cell phone to reveal its real-time location constitutes a search in the constitutional sense” and concluded that it does in fact constitute a search when law enforcement obtains real-time location data from a cell phone provider.

Another issue that has cropped up in numerous court opinions around the country is whether law enforcement may compel an individual to provide biometric data in order to access a smartphone. I recently wrote about that issue in January when I covered a case handed down by Northern District of California Magistrate Judge Candice A. Westmore. In The Matter of the Search of a Residence In Oakland, California, Case No. 4-19-70053, the Court denied law enforcement’s request for a search warrant that required any individual present at the time of the search could be compelled to “press a finger (including a thumb) or utilize other biometric features, such as facial or iris recognition, for the purpose of unlocking the digital devices found in order to permit a search of the contents…” on the grounds that doing so would violate the individuals’ Fifth Amendment privilege against self incrimination.

But what about physical access, as opposed to digital access, to a smartphone? Is a warrant required for that? According to a recent New York case, the answer is “no.” In People v. Ward, 169 A.D.3d 833 (2d Dep’t 2019), the court considered whether the physical search of a defendant’s cell phone fell within search incident to arrest exception to the Fourth Amendment's warrant requirement. The Court concluded that it did, explaining that “unlike in Riley, the subject was a physical search of the phone, in which the police opened the back of the phone and looked under the battery to obtain the phone's serial number. As such, the intrusion on the defendant's privacy was limited to the fact of his ownership of the phone, and did not implicate any of the aspects found to distinguish a digital search from a search of any other physical object…”

Another day, another opinion on law enforcement access to smartphones. Since smartphone technology is unceasingly evolving and changing at a quick clip, new issues regarding access to information that is contained on, in, and is accessible via these devices will continue to arise. The various permutations of these issues will no doubt present fascinating legal decisions that will have long-lasting privacy implications.

Let’s hope that the courts will continue to stay abreast of rapid technological advancements, all the while thoughtfully balancing our fundamental privacy rights with the needs of law enforcement. This is especially important given the rapid expansion and invasiveness of technology in 2019. Now, more than ever, it’s increasingly imperative for judges to keep up with the pace of change. Freedom from governmental intrusion is the very bedrock of our democracy; to allow misunderstood technology to chip away at that foundation would contravene the very principles upon which this great country was founded.

 

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. 


Electronic signature sufficient for supporting deposition

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

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Electronic Signature Sufficient for Supporting Deposition

Every summer, during the course of conducting research for the annual update to the book I co-author with Judge Karen Morris, Criminal Law in New York, I often come across cases that offer an interesting take on the intersection of law and technology. People v. Almodovar, 63 Misc.3d 994 (Crim Ct. 2019) is just such a case.

At issue in this case is the sufficiency of the accusatory instrument charging the defendant with assault in the third degree, menacing in the second and third degree, criminal possession of a weapon in the fourth degree, and harassment in the second degree. Specifically, the defendant asserted that the accusatory instruments were defective due to the fact that “the supporting deposition's electronic signature is invalid under New York State law.”

In this case the accusatory instruments consisted of, in part, a complaint and the complainant’s supporting deposition attesting that the facts set forth in the complaint were true and were based upon her personal knowledge. The supporting deposition had been electronically signed and included the following language:

*The above is an “electronic” signature that has been authorized by the above named person pursuant to New York's electronic Signature and Records Act and New York State's Technology Law Section[s] 301-[309] (2002).”

Also submitted with the complaint was the affirmation of an assistant district attorney (ADA), which also included an email exchange between the ADA and the complainant that resulted in the complainant providing her electronic signature. The ADA’s affirmation provided, in relevant part, as follows:

(1)On or about, I spoke to [CARMEN LOPEZ] in the above-entitled action, and he/she agreed to sign the supporting deposition electronically.
(2)In addition, the attached emails were sent from my office email account to the complaint's email account.
(3)The attached emails are a complete and accurate copy of the emails I sent to the complainant in the above-entitled action and the complainant's response.
(4)After I received the attached email exchange, I called the complainant and confirmed that he/she typed the attached response.

In reaching its decision, the court examined the legislative intent behind the enactment of New York State Technology Law § 304 (2), which specifically allows the use of an electronic signature on most legal documents, unless otherwise provided by law. The Court noted that when the Legislature enacted the law, it did not include criminal court complaints or supporting depositions on the the list of enumerated exceptions.
The Court also considered the rulings recently handed down by a number of New York courts that had concluded that the use of an electronic signature on a supporting deposition was permissible.

Based on its analysis, the Court rejected the defendant’s argument, which was that the electronic signature was invalid since the email address used to register the electronic signature did not contain the complainant’s name, and thus someone else could have executed it. The Court proffered the following explanation:

(T)here is nothing in the State Technology Law that requires a person to only utilize an email address that contains their personal identifying information to execute an electronic signature. Indeed, it is the court's experience that people often do not put their names or other identifying information in their personal email addresses in order to deter identity theft, for privacy reasons, or simply because it is not available when they signed up for their email account.

Accordingly the Court concluded that the electronic signature on the supporting deposition was valid, and as such, the accusatory instrument was facially sufficient.

The Court’s conclusion was the correct one. Times are changing and technology’s impact cannot be ignored, even in the Halls of Justice. Electronic signatures are now commonplace and have binding legal effects; criminal courts should not be immune from this 21st century reality.

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. 


Email tracking and lawyers: not a great mix

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

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For most lawyers, email is their primary method of correspondence with clients, courts, opposing counsel and others. Over the years, we’ve become increasingly reliant on email because it’s a fairly simple and cost-effective way to communicate.

Of course, as technology has advanced, so too have the tools that can be used to make email more useful. Many of these tools have the end effect of streamlining email correspondence. Email add-ons and built-in features allow users to schedule emails, automate the process of sorting and filing emails, and snooze emails for viewing at a later date, among other things. In most cases, these new features increase the efficiency of email.

But sometimes email add-ons can have a more nefarious purpose. Case in point: email tracking tools. Typically this type of software allows the sender to track a wide range of things, including when a sent email and its attachments are opened, how long the recipient views the email and attachments, how many times they was opened, whether they were forwarded, and the geographical location of the recipient.

Email tracking clearly raises some ethical red flags in the context of lawyer communications, so it’s no surprise that its use by lawyers has been addressed by a number of ethics committees.

First there was New York Opinion 749 (2001), wherein the Committee on Professional Ethics determined that a lawyer may not “use available technology to surreptitiously examine and trace e-mail and other electronic documents.” Then there was the Alaska Bar Association Ethics Committee which concluded in Opinion 2016-1 that even if the use of email tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical.

Pennsylvania has also issued an opinion addressing email tracking. In Formal Opinion 2017-300 the committee concluded that Pennsylvania lawyers should avoid using email tracking tools with opposing counsel. Most recently, in Opinion 18-01, the Illinois State Bar Association likewise determined that it is unethical for lawyers to use email tracking software with opposing counsel.


Last week, the issue of whether lawyers should use email tracking software once again reared its ugly head, but this time in the context of a war crime court martial. As covered in a number of major news outlets, defense counsel for
Edward Gallagher - a man accused of stabbing an Islamic State group militant to death - alleged that the military prosecutor in that case sent an email that included email tracking software to multiple lawyers, paralegals, and a reporter with the Navy Times.

Two weeks after the allegations were made, the judge presiding over the case issued a ruling that resulted in the removal the prosecutor from the case. The reasons for the removal were based on constitutional due process and Sixth Amendment grounds and because the threat of investigation into alleged prosecutorial misconduct could be viewed as a conflict of interest.

If you weren’t already convinced about the perils of lawyers using email tracking, this case offers even more evidence that lawyers and email tracking software are a bad combination. Likewise, it offers additional support for the recommendation I made when I wrote about email tracking software last year - and that I still stand by today:

“For those of you who practice in one of the many jurisdictions where this issue has not yet been addressed, I would suggest that it would be wise to err on the side of caution and, in the absence of consent, avoid using software with opposing counsel that could provide insights regarding their online behavior, whether it’s part of an email program or otherwise. After all, it’s better to be safe than sorry.”

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. 


When judges, political commentary, and social media collide

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

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When Judges, Political Commentary, and Social Media Collide

I’ve written many times about the use of social media by judges. Generally speaking, I’m in favor of judges using social media and oppose arbitrary restrictions on their social media use. For example, I believe that judges should be permitted to be “friends” on social media with attorneys who appear before them and that doing so does not somehow affect their obligation to remain impartial.

That being said, due to the unique nature of their position, judges are understandably restricted from certain types of online behavior, just as they are when it comes to offline behavior. After all, as I’ve always said, the online is simply an extension of the offline.

So when I read that a Utah judge had been suspended for 6 months as a result of his online interactions, I was concerned. Then I read the opinion of the Supreme Court of Utah in In re: Inquiry of a Judge: the Honorable Judge Michael Kwan. Given the facts of this case, I agree with the Court’s decision.

In this case, it was alleged, among other things, that Judge Kwan had made a number of statements online regarding Donald Trump, both before and after the election. Notably, Judge Kwan had already been reprimanded in the past for making improper statements regarding candidates running for political office, with two separate informal opinions being issued by the Utah State Bar Ethics Advisory Committee regarding those incidents. His statements regarding Donald Trump were made after those opinions were handed down.

In the case at hand, Judge Kwan asserted that many of his postings were protected by the First Amendment as constitutionally protected speech. The Court declined to address that argument on procedural grounds, ruling that the judge failed to raise a constitutional objection at the time that the violation occurred, and thus cannot raise it for the first time during the disciplinary proceeding. The Court explained its rationale as follows:

“(W)e have required judges who fail to abide by laws or rules to put the public on notice that their violation is based on a principled contention that the law or rule is, itself, unlawful. Without such notice, a judge may appear to violate laws or rules at will, in disregard of the legal system they are charged with administering. And when judges appear to consider themselves above the law, public confidence in the fair.”

Even though the Court declined to reach his constitutional defense, it nevertheless limited its inquiry to a single posting that the judge himself acknowledged was improper and was not constitutionally protected: a statement that he made that indicated his opposition to a presidential candidate. Specifically, he posted the following in reference to Donald Trump: “Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say . . . about your business practices?”

The Court concluded that “the single online posting regarding then–presidential candidate Donald Trump, together with the other conduct Judge Kwan admits violated the rules, viewed in light of Judge Kwan’s history of judicial discipline, amply justify the sanction the JCC ordered and we implement.”

In reaching its decision, the Court focused on the role that judges play in our society and emphasized the importance of the appearance of judicial impartiality in fulfilling that role: “Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary.”

The Court also explained that upon accepting the responsibility of being part of the judiciary, judges do so with the understanding that they are henceforth obligated to act in a manner that upholds public confidence in the judiciary: “Fulfillment of judicial duties does not come without personal sacrifice of some opportunities and privileges available to the public at large. And as a person the public entrusts to decide issues with utmost fairness, independence, and impartiality, a judge must at times set aside the power of his or her voice—which becomes inextricably tied to his or her position—as a tool to publicly influence the results of a local, regional, or national election.”

I’m in full agreement with the Court’s decision. Certainly judges don’t leave their right to free speech at the door when they enter the judiciary. But their speech is necessarily limited somewhat due to the unique nature of their duties. Judges often have to walk a fine line in that regard, and sometimes they may unintentionally cross it.

But in the case at hand, that line was crossed far too many times in the past, and as a result the judge should have erred on the side of caution when interacting both online and off. He failed to do so and must now face the consequences.

Certainly we’re in the midst of a uniquely turbulent political landscape, and the immediacy and reach of social media can be an enticing way to voice ones views. But even so, it’s important to think before posting. And given their position, judges in particular must tread carefully when addressing political issues, lest they impermissibly cross that line.

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. 


Email tracking and lawyers: not a great mix

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

*****

Email tracking and lawyers: not a great mix

For most lawyers, email is their primary method of correspondence with clients, courts, opposing counsel and others. Over the years, we’ve become increasingly reliant on email because it’s a fairly simple and cost-effective way to communicate.

Of course, as technology has advanced, so too have the tools that can be used to make email more useful. Many of these tools have the end effect of streamlining email correspondence. Email add-ons and built-in features allow users to schedule emails, automate the process of sorting and filing emails, and snooze emails for viewing at a later date, among other things. In most cases, these new features increase the efficiency of email.

But sometimes email add-ons can have a more nefarious purpose. Case in point: email tracking tools. Typically this type of software allows the sender to track a wide range of things, including when a sent email and its attachments are opened, how long the recipient views the email and attachments, how many times they was opened, whether they were forwarded, and the geographical location of the recipient.

Email tracking clearly raises some ethical red flags in the context of lawyer communications, so it’s no surprise that its use by lawyers has been addressed by a number of ethics committees.

First there was New York Opinion 749 (2001), wherein the Committee on Professional Ethics determined that a lawyer may not “use available technology to surreptitiously examine and trace e-mail and other electronic documents.” Then there was the Alaska Bar Association Ethics Committee which concluded in Opinion 2016-1 that even if the use of email tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical.

Pennsylvania has also issued an opinion addressing email tracking. In Formal Opinion 2017-300 the committee concluded that Pennsylvania lawyers should avoid using email tracking tools with opposing counsel. Most recently, in Opinion 18-01, the Illinois State Bar Association likewise determined that it is unethical for lawyers to use email tracking software with opposing counsel.

Last week, the issue of whether lawyers should use email tracking software once again reared its ugly head, but this time in the context of a war crime court martial. As covered in a number of major news outlets, defense counsel for Edward Gallagher - a man accused of stabbing an Islamic State group militant to death - alleged that the military prosecutor in that case sent an email that included email tracking software to multiple lawyers, paralegals, and a reporter with the Navy Times.

Two weeks after the allegations were made, the judge presiding over the case issued a ruling that resulted in the removal the prosecutor from the case. The reasons for the removal were based on constitutional due process and Sixth Amendment grounds and because the threat of investigation into alleged prosecutorial misconduct could be viewed as a conflict of interest.

If you weren’t already convinced about the perils of lawyers using email tracking, this case offers even more evidence that lawyers and email tracking software are a bad combination. Likewise, it offers additional support for the recommendation I made when I wrote about email tracking software last year - and that I still stand by today:

“For those of you who practice in one of the many jurisdictions where this issue has not yet been addressed, I would suggest that it would be wise to err on the side of caution and, in the absence of consent, avoid using software with opposing counsel that could provide insights regarding their online behavior, whether it’s part of an email program or otherwise. After all, it’s better to be safe than sorry.”

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. 


Ohio Court on service of process via Amazon messaging

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

*****

Ohio Court on service of process via Amazon messaging

In 2019, technology affects so many aspects of practicing law. Whether it’s running your law firm using cloud-based billing and practice management software, using legal software to obtain data analytics to assist in litigation, or mining social media for evidence, there’s no escaping the impact of 21st century technologies on the practice of law.

Of course, that’s not always a bad thing, and technology often reduces the tedium of law practice and reduces friction and difficulties often encountered by lawyers in their day-to-day practice. One example of this theory in action is the use of online communication tools for service of process.
Years ago, this was a unique concept that many courts approached with caution. But as online communication and interactions became increasingly common, courts slowly began to allow lawyers to use them to effect service of process.

Fast forward to 2019, and effecting service of process using social media platforms is no longer unheard of. Oftentimes, the platform of choice is Facebook. The first time I wrote about this was in October 2014. At that time, two different judges had issued orders permitting service upon litigants using Facebook: a U.S. Magistrate judge for the Eastern District of Virginia (Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear) and a New York family court judge (Noel B. v. Anna Maria A., Docket No. F-00787-13/14B).

Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case (Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096)). Next, in 2016, I wrote about Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), where United States Magistrate Judge for the Eastern District of New York, Cheryl L. Pollak permitted an alternate method of service via Facebook, but also required the plaintiff to attempt to effect service using other methods as well.

I also covered this issue in June of 2017 when I wrote about Axberg v. Langston, Docket No. MRS-C-157 (2016). In this post-adoption case, as reported in the New Jersey Law Journal, Judge Stephan C. Hansbury, Morris County P.J. (ret.), considered the issue of whether service of process could be effected via Facebook and concluded that service via Facebook, and Facebook alone, was a sufficient method of service.

But other platforms have also been used to effect service of process such as WhatsApp, which I wrote about in November 2018. In that case, Alzaabi v. Jaston, a Queens County Supreme Court Justice allowed the plaintiff, who was alleging that the defendant defrauded him via an online sale, to serve process using WhatsApp.

Which brings us to the case at hand, Noco Co. v. Chang, 2019 WL 2135665. In this trademark infringement lawsuit filed in the Northern District of Ohio, the plaintiff alleged that defendant used an Amazon merchant account to sell infringing products. The name registered with the Amazon merchant account was associated with a trademark application under that same name, and listed an address in China.

After multiple failed attempts to obtain a waiver of service from the defendant pursuant to the Federal Rules of Civil Procedure, the plaintiff filed a motion requesting permission to serve the defendant via Amazon messaging in lieu of effecting service using the procedure authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.

Due to the unique nature of the Hague Convention, the court declined to grant the plaintiff’s request to serve the defendant through online channels. The Court explained its rationale as follows: “Given the fact-specific nature of matters concerning service abroad, the Court makes explicit the facts that dictate that service on Defendant Chang must be transmitted through China’s Ministry of Justice: (1) Defendant Chang appears to live in China, a Hague Convention signatory state that has objected to service by the Article 10 methods; (2) Chang’s physical address is not unknown; (3) the only way to effect service is by transmitting documents abroad (e.g., there is no U.S. subsidiary or U.S. counsel); and (4) Plaintiff has not already attempted to serve Defendant using this method authorized by the Hague Convention.”

Notably, the Court lamented that the requirements of the Hague Convention necessitated service of process using more traditional methods, in large part due to their lack of expediency: “Requiring Plaintiff to wait many months for service feels shockingly out-of-step with today’s fast-paced e-commerce…However, the Court’s hands are tied. Plaintiff NOCO must serve Defendant Chang through China’s Ministry of Justice.”

So in this case, 21st century methods were rejected. But I would suggest it’s a rather unique situation and that more often than not, especially where disputed transactions occurred online and other more traditional attempts at service of process have failed, courts will increasingly consider 21st century online options. So don’t rule them out.

It’s 2019 and the world is changing rapidly. You can’t practice law in a vacuum and technological change is a reality. Litigation is not immune from its effects, so if you’re a litigator make sure you’re technologically savvy and are taking steps to incorporate technology learning into your daily routine. At the end of the day, you’ll be a better lawyer, thus more able to provide the best possible representation for your clients. And after all, isn’t that what the practice of law is all about?

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 on the ethical obligations of prosecutors in misdemeanor cases

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

*****

Today I came across a headline that I assumed at first glance was an Onion article or some other type of satire. It had to be. The ABA Journal headline stated something that I’ve always assumed was simply a given: “Prosecutors must maintain ethical conduct during misdemeanor plea deals, ABA ethics opinion says.”

Note that what the headline failed to mention was the the opinion addressed prosecutors obligations when interacting with unrepresented misdemeanor defendants. But even so - come on! How could there be any confusion on that issue? Prosecutors are lawyers and, just like the rest of us, they’re required to act ethically at all times. There’s no “misdemeanor or lower” exception to ethics requirements. At least, not that I’m aware of.

But, nevertheless, the fact that the ABA felt the need to weigh in on this is an indication that there was a need for further clarity on this issue. And, if the ABA deems this topic important enough to opine on, then I likewise believe that it’s important enough for me to write about. So if you’re as curious as I was about this opinion, then buckle up and let’s dive in.

In Formal Opinion 486, which was handed down on May 9th, 2019, the ABA Standing Committee on Ethics and Responsibility considered the ethical obligations of prosecutors when negotiating and plea bargaining with unrepresented individuals accused of misdemeanors.

At the outset, the Committee acknowledged that while most prosecutors perform their job functions ethically, that’s not always the case: “Notwithstanding the commitment of most prosecutors to high professional standards, there is evidence that in misdemeanor cases where the accused is or may be legally entitled to counsel, methods of negotiating plea bargains have been used in some jurisdictions that are inconsistent with the duties set forth in the Rules of Professional Conduct.”

The Committee then turned to the accused’s right to counsel, noting that it is unethical for prosecutors to interfere with this right in any way: “Under Model Rule 3.8(b) prosecutors must make reasonable efforts to assure that unrepresented accused persons are informed of the right to counsel and the process for securing counsel, and must avoid conduct that interferes with that process.”

Next, the Committee tackled the plea bargaining process, explaining that when a defendant is unrepresented, prosecutors must discuss the known consequences of a proposed plea deal with the accused. This is because an unrepresented defendant is in a uniquely vulnerable position. As such, “if the prosecutor knows the consequences of a plea – either generic consequences or consequences that are particular to the accused – the prosecutor must disclose them during the plea negotiation.”

The Committee further elaborated on the obligations of prosecutors in this situation and provided examples of impermissible conduct:

“Thus, where a prosecutor knows from the charge selected, the accused’s record, or any other information that certain collateral consequences or sentence enhancements apply to a plea on that charge, statements like the following would constitute prohibited misrepresentations:

‘Take this plea for time served and you are done, you can go home now.’

‘This is a suspended sentence, so as long as you comply with its terms, you avoid
jail time with this plea.’

‘You only serve three months on this plea, that’s the sentence.’”

The Committee then turned to a prosecutor’s ethical obligations when extending a plea offer to an unrepresented and clarified that prosecutors cannot do so unless there is sufficient evidence to support the plea offer: “Under Model Rules 1.1, 1.3, 3.8(a), and 8.4(a) and (d), prosecutors have a duty to ensure that charges underlying a plea offer in misdemeanor cases have sufficient evidentiary and legal foundation.”

Finally, the Committee noted that a prosecutor’s ethical obligations extend to post-plea interactions: “If a prosecutor learns during the plea colloquy with the court or other interactions that the unrepresented accused’s acceptance of a plea or waiver of the right to counsel is not in fact voluntary, knowing, and intelligent, or if the plea colloquy conducted by the court is inadequate to ascertain whether the plea or waiver of the right to counsel is in fact voluntary, knowing, and intelligent, the prosecutor is obliged to intervene.”

That this opinion was even issued, my friends, is an unfortunate reminder of the state of our profession in 2019. That being said, it serves as a welcome, and much-needed, reminder to prosecutors who may be walking a fine ethical line when it comes to many of these issues: always ensure that you walk on the right side of that line, or risk losing your license to practice law.

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.