Daily Record--Legal Currents Column

More of My Top Life Hacks and Gadgets

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

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More of My Top Life Hacks and Gadgets

Have you noticed how it seems like there’s never enough time to get everything done no matter how hard you try? Rest assured, you’re not alone. In today’s hectic world, balance is a goal often sought but rarely achieved. In other words, the struggle is real.

The good news is that there are gadgets and other life hacks that can save time and reduce aggravation. The trick is sorting through all of your options and choosing a few that truly make a difference in your day-to-day life. Fortunately for you, I love learning about and trying new gadgets and technology tools and am more than happy to share the results of my search.

That’s exactly what I did in last week’s column: I shared a few of my favorite life hacks and gadgets. But guess what? There are plenty more where that came from and in today’s article I’ll be sharing a few more of my favorite time-saving and annoyance-reducing tips.

First, there’s Amazon Household. Do you shop on Amazon a lot? Do your household family members also use the same Amazon account? If so, I bet you’ve had more than one holiday gift ruined by Amazon’s shipping notifications and/or algorithms that suggest you view similar items to ones recently purchased. That’s where Amazon Household comes in. It allows you to create a “household” with two parents and additional children/teens. Every person has their own login with its own purchase history, thus ensuring that notifications, such as shipping status, are only sent to the person who ordered the item. Also useful is that Prime benefits can be shared with all family members. Finally, you can set up your kids’ accounts so that they can’t make purchases without permission from a parent. Sound interesting? You can learn more here.

Another useful Amazon tool is a gadget: AlexaAuto. Essentially AlexaAuto brings Amazon Alexa to your car, so even if your car’s system doesn’t have Alexa built-in, you can still take advantage of it. It’s super easy to insttall, and once you’ve done so you can ask it questions, tell it to play music, control your home’s smart home features, and more. This gadget’s value really depends on how “smart” and connected your car already is and what you’d like to use Alexa for. My car is 3 years old, I hate paying for Satellite radio, and I refuse to listen to commercials, so I find AlexAuto to be an ideal choice when it comes to easily playing music in my car. It connects automatically (most of the time), and then it’s a simple matter of asking Alexa to play whatever type of music I’m in the mood for. For me, it’s well worth the cost, which is $49.99.

Next up is Sugru. It’s a moldable glue/putty that is an absolute lifesaver. You mold it into whatever shape you’d like and then let it dry. Among other things, it can replace broken plastic parts, repair cracks and breaks, make do-it-yourself device stands, and protect cords. I’ve used it for a variety purposes, including fixing an exposed iPhone charging cord and replacing a leg that broke off of our toaster oven. It comes in a variety of different colors and an 8-pack costs just $15.99.

Last but not least, save time and money with one of my favorite shopping browser add-ons for Chrome: Honey. This tool automatically enters current coupons codes into the proper fields when you check out on merchant sites. Another added benefit is that when you check out on Amazon, Honey will let you know if there are other sellers who offer the same item at a lower price. And best of all, it’s free!

Those are just a few of the tech tools and hacks that I use all the time. Hopefully one or two of them will do the same for you!

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. 


Save Time and Aggravation With My Top Life Hacks ands Gadgets

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

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Save Time and Aggravation With My Top Life Hacks ands Gadgets

Usually I write about the intersection of law and technology in this column. One reason I’m so passionate about technology is because it saves lawyers time and money. After all, lawyers’ daily lives can be hectic and stressful, and anything that can be done to reduce some of that stress is well worth the effort.

That’s why I’m sharing some of my top life hacks and gadgets in today’s article. None of them are in any way related to legal technology, but all of them save me time and streamline my day-to-day life. Hopefully a few of them will do the same for you, too!

First up, my trusty robot vacuum cleaner: the Roomba. I don’t know how I ever managed without it. I currently own the Roomba 690, and it’s a lifesaver. We have 2 dogs, who seem to shed year round, and my Roomba manages to make life with them so much better. Every night we set our Roomba to run in our two most-trafficked areas - our family room and kitchen - and then wake up to clean floors. A Roomba can cost anywhere from $200 to $300, but trust me, it’s well worth the price you’ll pay!

Next up, my recently purchased Mirror. It’s a full-length, interactive gym from which you can play one of hundreds of pre-recorded or live workouts (and there are also live one-on-one training sessions available). It’s like having a boutique gym right in your house. No matter what your poison - yoga, boxing, barre, dance, Pilates, cardio, and more - the Mirror has you covered. You choose the class length (15, 30, or 45 minutes) and the difficulty level (1-4), and then start exercising, guided by the full-length image of the instructor and your own image on the mirror as you work out. You can exercise any time day or night, so it’s perfect for busy lawyers without much free time - especially those with kids. So if getting into shape is one of your goals for 2020, the Mirror might be just what you’re looking for. Sure it’s pricey ($1495 for the Mirror itself and $39/month for access to the classes), but it’s a great investment.

Another recent purchase of mine that I highly recommend for the home or office is the Google Wifi Mesh Router. One of the best parts about this router is that because of the mesh network, which is made up of individual Wifi points that “talk” to each other, it has extensive reach. Another added bonus: setup is a breeze. The router is controlled via your smartphone, so the first thing you have to do prior to setting it up is download the free Google Wifi app (available in iOS and Android). Next, you plug in your primary Wifi point. The number of Wifi points that you use is determined by the size of your home or office. For a smaller space (500-1500 square feet), you’ll need one Wifi point. For a medium-sized space (1500-3000 square feet) you’ll need two. And for a larger space (3000-4500 square feet) you’ll need three. Not only does Google Wifi provide reliable, consistent internet access - it also offers a number of other great features, including the ability to prioritize a specific device and built-in family control features. A single Wifi point starts at $99 and a set of 3 can be purchased for as low as $242 on Amazon.

Last but not least, my favorite laptop stand, the Moft “invisible” laptop stand. This laptop stand permanently attaches to the bottom of your laptop via an adhesive backing. When not in use it folds nearly flush to the bottom of your laptop, lays flat at 1/9”, and is barely discernible. It weighs only 3 ounces. Its dimensions are 170x224x3 mm and it’s designed for use with laptops with screen sizes between 11.6" and 15.6”. It can be folded into two different height settings, and costs only $24.99. So if you’re in the market for a lightweight and incredibly convenient laptop stand, I highly recommend it!

Those are just a few of my favorite life hacks and gadgets. I hope a few of them sound like a good fit for you. And stay tuned: in the near future I’ll share a few more life hacks. So keep an eye out!

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 Report: 2020 Legal Research Trends

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

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ABA Report: 2020 Legal Research Trends

It used to be that legal research was expensive. There weren’t a lot of choices so most law firms simply paid exorbitant prices for access to case law, statutes, and treatises. But then along came the Internet, and it changed everything.

These days, with the rise of increasingly affordable legal research platforms and mobile apps, lawyers now have a  vast array of options when it comes to affordable legal research tools. Oftentimes, they’re even free. 

With so many choices available, it’s not surprising that the results of the American Bar Association’s latest Legal Technology Survey Report show that lawyers conduct legal research in a multitude different ways. Here are just a few of the interesting statistics from the survey on how lawyers perform legal research.

For starters, it’s clear that lawyers spend a good amount of time on legal research. According to the results of the Report, 17% of their workdays are devoted to legal research.

The legal research tools they used ran the gamut, with free legal research tools being the most popular. 65% of lawyers surveyed reported that they frequently used free tools, and 25% shared that they occasionally used them.

According to the Report, the top websites/tools used by lawyers for free legal research (in some cases the platforms were accessed for free via bar association memberships) were: 1) Findlaw (20%), 2) Cornell’s Legal Information Institute (18%), 3) Fastcase  (18%), 4) government websites 15%, 5) Google Scholar (13%), and 6) Casemaker (8%).

Lawyers reported using free online tools for obtaining information about: 1) general news (81%), 2) other lawyers (76%), 3) legal news (74%), 4) researching public records (70%), 5) companies and corporations (70%), 6) their state’s administrative, regulatory, and executive information (51%), 7) state legislation and statutes (50%), 8) case dockets (48%), 9) judges (47%), 10) legal forms (46%), 11) federal administrative, regulatory, and executive information (45%), 12) experts (42%), and 13) other state legislation and statutes (42%).

Of course fee-based services were also used often, with 57% of lawyers reporting that they regularly using them, and 17% occasionally using them.

When it came to fee-based legal research, Westlaw and Westlaw  Edge were by far the most popular, with 49% of lawyers reporting that they preferred them. Coming in way ahead of the rest in second place was Lexis Advance at 28%. Other tools used included Lexis Practice Advisor (4%), RIA Checkpoint (3%), Bloomberg Law (3%), Fastcase (3%), Practical Law (PLC) (2%), Casemaker (2%), CCH (1%), Casetext (1%), and HeinOnline (.3%).

Online fee-based tools were use most often to research: 1) federal case law (54%), 2) state case law from the state in which they practiced (53%), 3) other state case law (51%), 4) legal treatises and secondary materials (49%), 5) federal legislation and statutes (42%), and 6) legal citators (36%).

Some lawyers (44%) reported that they continued to regularly use print legal research tools. The information most often obtained using print materials were: 1) legal treatises and secondary materials (16%), 2) practical guidance (16%), 3) law reviews and legal periodicals (14%), 4) legal forms (13%), and 5) state legislation and statutes (9%).

Finally, when it came to the cost of legal research tools, the majority of lawyers (60%) reported that their firms either don’t bill clients for legal research or that the cost of legal research is incorporated into their hourly rate.  Surprisingly, 25% of firms still bill clients for the cost of legal research, with larger firms being the most likely to do  so. 37% of firms with 100 or more attorneys reported doing so, followed by 25% of firms of 2-9 attorneys, 21% of firms of 10-49 attorneys, and 16% of solo lawyers.

So that’s how your colleagues are using legal research tools. Do any of the statistics surprise you? How does your firm’s use compare?

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. 


Make Technology Competence a Priority in 2020

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

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Make Technology Competence a Priority in 2020


Unless you’ve been hiding under a rock, you already know that technology is changing the way that legal services are delivered. No matter what your practice areas, the impact of technology on the legal profession is inescapable, whether it’s digital evidence and ediscovery to data privacy issues and secure electronic communication. Technology is here to stay and ignoring it is no longer an option. That’s why technology competence is a requirement in the majority of jurisdictions in the U.S.

The American Bar Association first recognized the importance of technology competence for lawyers in 2012 when it amended the comments to Model Rule 1.1. This amendment imposed an ethical duty on lawyers to stay abreast of changes in technology. Since that time, the majority of state bar associations have revised the comments to their ethical rules to require that lawyers stay on top of changes in technology.

38 states now require it, with South Carolina, Michigan, and Texas adding a comment requiring technology competence to their ethical rules in 2019. Similarly, two other states, California and New Hampshire, while not formally adopting the duty to maintain technology competence, have confirmed in recent ethics opinions that lawyers have this duty. Notably, even Canada has jumped on the bandwagon, and on October 9 , 2019 the Federation of Law Societies of Canada amended its Model Code to include a duty of technology competence.

Of even greater import is that two states now require lawyers to complete technology CLE courses. These technology CLE requirements represent an important departure from business as usual and represent a clear acknowledgement that the legal profession is not immune from the impact of 21st century technologies.

Florida was the first to adopt new language into its Bar Rules to require lawyers to stay abreast of legal technology advancements by completing 3 credits of legal technology CLE per biennial cycle.  North Carolina followed suit in April of 2018, when the North Carolina State Bar Council voted to mandate that lawyers take one technology CLE credit each year.

Florida and North Carolina may be the first to enact these new CLE requirements, but they certainly won’t be the last. Rest assured, no matter what your areas of practice, or the size of your firm, the effects of technology are unavoidable, and ignoring it is no longer an option. In other words, your only choice is to commit to learning as much as you can about technology advancements, thus ensuring that you meet your ethical obligations and provide the best possible representation to your clients.

A great place to start is to read books on legal technology, follow blogs focused on legal technology issues, and participate in your local bar association’s legal technology committee—or start one if it doesn’t yet exist

Finally, consider attending a few legal technology conferences in the upcoming year. One conference to consider is ABA TECHSHOW, which is one of the most popular conferences for small firm lawyers seeking to learn about the latest legal technology tools and how to use them in their practices. In 2020 it’s being held in Chicago from February 26 - 29th, and I’m excited to be speaking at it this time around. It’s a great conference and with lots of educational and networking opportunities, so I hope to see you there!

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. 


2019 Holiday Gift Guide for Lawyers

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

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It’s already that time of year - time to start shopping for the lawyers on your holiday gift list. Time sure flies, doesn’t it? But, good news! I’ve done the work for you. Here’s my curated holiday gift list for the lawyers in your lives. All you have to do is choose which gifts to buy. So without further ado, here are my recommendations.

First, let’s take a look at a few books. If the lawyer in your life is struggling to understand new Millennial hires, look no further than this book: “What Millennial Lawyers Want.” 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.

Another book to consider is “The 2019 Solo and Small Firm Legal Technology Guide,” written by Sharon D. Nelson, John W. Simek, and Michael C. Maschke. Lawyers are incredibly busy, and as a result finding time to learn about technology often seems like an insurmountable task. That’s where this book, which is updated and revised annually, comes in. It helps lawyers sift through their technology choices, which range from hardware options to legal software tools designed to simplify the lives of solo and small-firm lawyers.

Finally, there’s a really interesting children’s book for the lawyer who also happens to be a mother to young children: “My Mom, the Lawyer.” This book was written with children whose moms are lawyers in mind. It helps them to understand what it means to be a lawyer and describes the many different jobs and the important work that their mothers do day in and day out.

For the mobile lawyer in your life I highly recommend my go-to portable laptop stand: the Moft “invisible” laptop stand. This laptop stand permanently attaches to the bottom of your laptop via an adhesive backing, and when not in use it folds nearly flush to the bottom of your laptop so that It’s barely visible and lays flat at 1/9”. It can be folded in two different ways, thus creating two different height settings: one at a 25 degree angle and another at a 15 degree angle. This stand weighs only 3 ounces, and its dimensions are 170x224x3 mm. It’s intended for use with laptops that have screen sizes between 11.6" and 15.6”. The most basic version, which is devoid of patterns and bright colors, costs $24.99.

Next up, if if the lawyers on your list doesn’t yet own a pair of Apple AirPods, then you know what to buy them this holiday season. I love mine and have a hard time remembering how I got by without them. The first time I realized their potential was when I was on a call with a colleague and stood up to get something and, out of habit, reached for my phone. Then I realized I could leave my phone right where it was and walk around while I talked since I was no longer physically connected to it while using my AirPods for the call. Granted, they’re not cheap, but they’re worth it. The cost for basic AirPods with a wireless charging case is $199 and with a wired charging case the cost is $159.

Another tech gadget for the lawyer in your life is the Google Mesh Wifi Router, which will work equally well in a law office or at home. I recently bought this router for my home wifi and setting it up was a snap. The router is controlled via your smartphone, and the number of Wifi points that you use is determined by the size of your home or office. For a smaller space (500-1500 square feet), you’ll need one Wifi point. For a medium-sized space (1500-3000 square feet) you’ll need two. And for a larger space (3000-4500 square feet) you’ll need three.

In addition to providing reliable, consistent internet access - this router also offers a number of other great features. First, you can prioritize a specific device right from your smartphone.There are also family controls that are built right into Google Wifi that allow you to, among other things, pause Wifi access on demand for any given device or group, schedule internet timeouts for specific devices or groups, and block chosen devices or groups from accessing millions of adult websites. Even with all those features Google Wifi is surprisingly affordable, starting at $169 for a 1-pack or $349 for a 3-pack.

And last but not least, a keyboard created just for lawyers: LegalBoard. This keyboard has built-in shortcuts and abbreviations for common phrases and words typically used by lawyers. The wired version has been around for a few years now, but good news! A wireless version was just announced, and you can preorder the wireless version for $85.

So now that you have any number of gifts to choose from, what are you waiting for? Start shopping for the lawyer in your life today!

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. 


Cloud and mobile computing trends for lawyers in 2020

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

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Cloud and mobile computing trends for lawyers in 2020

I started writing about cloud and mobile computing and their potential benefits for the legal profession in 2008. Two years later I began to work on a draft of my book “Cloud Computing for Lawyers,” which was published by the American Bar Association in 2012. Back then, convincing lawyers that cloud computing was the future and that its benefits far outweighed the risks was a tough sell. This is because at the time many lawyers were understandably skeptical, and expressed concerns about the ethical and security issues presented by the use of cloud computing by lawyers.

Fast forward to 2019 and how times have changed! The majority of lawyers are now using cloud and mobile computing tools as part of their day-to-day practices and are reaping the benefits offered by mobile law practices. For proof you need look no further than the latest ABA Legal Technology Survey Report, which was released earlier this month.

According to the survey results, 58% of lawyers now report that they use  cloud computing tools for work-related tasks, compared to 38% in 2016. Small firm lawyers from firms with 2-9 lawyers were the most likely to use cloud computing software at 61%. Next up were lawyers from firms of 10-49 attorneys at 60%, followed by 59% of solo lawyers, and 51% of large firm lawyers (100 or more attorneys).

Notably, 8% of the lawyers surveyed indicated that their firms had plans to replace traditional server-based software with a cloud-based alternative within the next 12 months. Lawyers from firms with 2-9 lawyers were the most likely to plan to make that move (12%), followed by lawyers from firms with 10-49 lawyers at 8%. Next up were 6% of lawyers from firms with 100 or more attorneys, and solo lawyers came in last at 5%.

According to the Report, lawyers use cloud computing software for many different reasons. The top reason they provided was easy browser access at 65%, followed by 24/7 access to their law firm’s data at 61%. 48% reported that the low cost of entry and predictable monthly expenses were important benefits. 45% of lawyers indicated that robust data backup and recovery was a top benefit. For 35% a strong selling point was that cloud-based software is quick to get up and running, followed by the fact that cloud computing software eliminates IT and software management requirements at 31%. And last but not least, 34% shared that they used cloud computing software because it offers better security than they can provide in-house.

The results of the survey also showed that the majority of lawyers (55%) now telecommute on a regular basis. Of the 55% of lawyers who reported that they telecommuted in the past year, lawyers from firms with 100 or more attorneys were the most likely to do so (60%), followed by 56% of solo attorneys, 53% of lawyers from firms with 2-9 attorneys, and 49% of lawyers from firms with 10-49 attorneys

One way that lawyers access their information stored in the cloud while on the go is through the use of smartphones, so it’s no surprise that smartphone use by lawyers continues to increase. A whopping 79% of lawyers reported that they used an iPhone for work-related tasks, while 18% use an Android smartphone. Up next is Blackberry at 7%, and only 1.5% of lawyers reported that they never use a smartphone for work-related purposes.

One place that lawyers often use their smartphones is in court, and when asked how they used smartphones while in court, 54% shared that they used them for checking email.  Next up was calendaring at 40%, real-time communications at 32%, and legal research  at 22%.

According to the survey results, 29% of lawyers also use tablets in the courtroom. Some of the activities that lawyers conducted on their tablets included email (25%), legal research (19%), calendaring (14%), real-time communications (13%), and accessing court dockets and documents (10%).

Lawyers also regularly use laptops when they’re in the courtroom, with 44% of survey respondents indicating that they regularly did so. The most popular tasks accomplished with laptops while in the courtroom were email (34%), legal research (33%), accessing court dockets and documents (26%), and editing document (24%).

So that’s how today’s mobile lawyer gets work done on the go. How does your usage compare? Are you taking full advantage of the many benefits offered by mobile and cloud computing tools in your practice? If you’re not already using cloud computing software at your firm, maybe it’s time to consider an upgrade. After all, there’s no better time than the present!

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. 


Should Facial Recognition Software Be Banned?

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

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Should Facial Recognition Software Be Banned?

Does facial recognition technology present a unique and unprecedented threat to our privacy? According to Evan Selinger, RIT philosophy professor and expert on the ethical and privacy implications of technology, the answer is “yes.” At least, that’s what he told us earlier this month when he spoke to a group of lawyers here in Rochester.

This presentation was sponsored by the Monroe County Bar Association’s Technology and Law Practice Committee and was held at the upstairs meeting room at 80W restaurant. I’m the chair of this committee and this TechTalk, was part of an upcoming series of talks that are the brainchild of committee member Aleksander Nikolic, a Rochester IP attorney with Heslin, Rothenberg, Farley & Mesiti, P.C.

During this talk,"Who Stole My Face? The Privacy Implications of Facial Recognition Technology,” Selinger shared the reasons for his belief that facial recognition software should be banned. His basic premise was that that facial recognition technology should be banned across the board until regulations are enacted that will control when and how it is used, and by whom.

Selinger explained that facial recognition technology is unique in its invasiveness and in its potential for causing harm. In large part this is because our faces are central to our identities, and due to social norms and unlike other biometric data such as our fingerprints or DNA, are typically fully viewable when we’re in public. Similarly, because images of our faces are easily captured, both online and off, that data is more vulnerable to use and abuse by law enforcement agencies and private entities.

According to Selinger, the use of facial recognition technology by law enforcement is particularly problematic due to its invasiveness and increasing pervasiveness. This is in part due to the risks presented when law enforcement officers seek to use facial recognition tools as part of their investigatory, screening, and crime prevention arsenals. One example offered by Selinger is that in some cases law enforcement agencies have obtained images from driver’s licenses issued by the DMV and used them for investigatory purposes including in lineups.

The use of facial recognition technology in this manner is of particular concern since the underlying programming used to create facial recognition software often leads to biased results that can have life-altering effects for those being screened by it. For example, in a study conducted by the ACLU last year, it was determined that the programming behind Amazon's facial surveillance technology, Rekognition, was inherently biased.

In the study, Amazon’s facial recognition software was used to compare photos of members of Congress to mugshots of people who had been arrested for a crime. Rekognition incorrectly identified 28 matches between members of Congress and the mugshots. Notably it was members of Congress who were people of color that were disproportionately affected by these errors. That same software also has been shown to have difficulty identifying women’s faces and has incorrectly determined that women were men.

Selinger asserted that legislation recently passed in San Francisco, Somerville, Berkeley, and Oakland that bans the use of facial recognition tools by law enforcement is a step in the right direction. I agree with him, but realistically, I tend to believe that the use of facial recognition technology is already pervasive enough that it's going to be difficult to unring that bell. After all, the legislative process tends to move at a snail's pace, while technology is advancing at rates never before seen.

That being said, only time will tell. All in all, Selinger’s presentation was a fascinating one and was well received by everyone in attendance. If it sounds interesting to you, then you’re in luck! As mentioned above, this was the first in a series of TechTalks that the Committee will be hosting, and each presentation will focus on the intersection of technology and the law. Future talks will be open to the business community as well as attorneys, so make sure to visit the Monroe County Bar Association’s website (www.mcba.org) for details about upcoming TechTalks. We hope to see you next time!

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com. 


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.

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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.

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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.