Sui Generis--a New York law blog

Sharing space, not secrets: Office sharing insights from ABA Formal Opinion 507

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

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Sharing space, not secrets: Office sharing insights from ABA Formal Opinion 507

The landscape of our lives looks very different now than it did before the pandemic struck. Nowhere is this more apparent than in the workplace. Remote work is more common than ever and increased technology usage has enabled more flexible and creative work arrangements. Because five-day in-office work weeks are less common, office-sharing arrangements have become more palatable for lawyers. Less office space is required due to hybrid work schedules, thus allowing more people to work from one office and divide rental costs while also sharing resources. 

However, with more office-sharing by attorneys comes the need to carefully balance the convenience with the potential risks this type of arrangement can pose. Fortunately, there is guidance available in the form of a recently released ethics opinion, ABA Formal Opinion 507.

Handed down in July, this opinion addresses the ethical issues that arise when lawyers participate in office-sharing arrangements. The Standing Committee on Ethics and Responsibility concluded that it is generally permissible for lawyers to share offices with others, but when doing so there are a number of ethical issues to keep top of mind.

First, the Committee cautioned that it’s essential to take steps to protect client confidentiality. Lawyers must ensure that the physical arrangement of the shared office space does not expose client information to other office-sharing lawyers or their staff. Safeguards that should be considered include maintaining separate waiting areas, installing privacy screens, and using technology to provide secure storage for client files 

The Committee discussed the importance of using separate telephone lines and computer systems, along with providing staff training to protect client information: "(L)awyers can also restrict access to client-related information by securing physical client files in locked cabinets or offices and using separate telephone lines and computer systems. Lawyers, however, may overcome confidentiality concerns with shared telephone and computer systems with appropriate security measures, staff training, and client disclosures." 

While keeping client information secure is paramount, it's not the only ethical obligation lawyers need to consider. Clear communication was also emphasized. According to the Committee, lawyers have an ethical obligation to clearly communicate the nature of their relationship to the public and clients to avoid misleading impressions. There are a number of ways that lawyers sharing office space can ensure compliance, including using separate business cards, letterheads, and directory listings.

The Committee also opined on the importance of taking steps to avoid conflicts of interest, explaining that attorneys “should pay particular attention to (1) avoiding the imputation of conflicts of interest, (2) taking on potential new matters that are adverse to clients represented by other office sharing lawyers, and (3) consulting with fellow office sharing lawyers.” 

Another area to approach with caution is when sharing staff with other lawyers. 

If lawyers decide to share support staff, they must instruct all employees regarding their confidentiality obligations and should take steps to supervise them appropriately. 

Finally, the Committee addressed issues that arise when lawyers who share office space consult with one another about their cases. According to the Commitee, lawyers should avoid disclosing client-identifying or privileged information during informal consultations, and discussing issues through hypotheticals is recommended. Notably, these consultations can sometimes lead to unexpected conflicts of interest that could limit a lawyer's ability to represent current or future clients. Therefore, a standard conflict check should be conducted before any informal consultation discussion in order to mitigate this risk.

The pandemic and technological changes have upended traditional legal practices. As a result, we now have an unprecedented array of options for how and where to conduct our work. But as this opinion reminds us, with this newfound flexibility comes a heightened ethical burden. In a landscape that's shifting almost as quickly as technology itself, this opinion provides much-needed guidance for lawyers seeking to take advantage of the many benefits offered by hybrid work arrangements like office-sharing.

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

Never fear, AI guidance for lawyers is near

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

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Never Fear, AI Guidance for Lawyers is Near

You may have noticed that generative AI tools like ChatGPT are making waves lately. However, in their current iteration, when these tools are used by legal professionals, it’s not necessarily smooth sailing.

If you’re worried about ethics and security, rest assured you're not alone. The promised efficiencies of these tools are tempered by genuine concerns about the accuracy of results, confidentiality, and ethical compliance. Since this technology is both new and rapidly changing, implementation in law firms is a challenging task, and innovative lawyers are forced to navigate the uncharted waters of generative AI in the absence of clear guidance.

Fortunately, help is on the way. In a number of different jurisdictions, plans have been announced that are designed to address many of the thorny issues presented by generative AI, either through the issuance of ethics opinions or the formation of committees dedicated to tackling these challenges.

For example, in July the New York State Bar Association announced that it was forming a task force to address emerging issues related to artificial intelligence. The Bar explained that the task force would “address the benefits and potential dangers surrounding artificial intelligence and make regulatory recommendations for this powerful and fast-developing technology.” The task force plans to “develop policies for bar association adoption and suggest legislation to govern effective and responsible AI use.”

Similarly, a few weeks later, the Texas State Bar also announced the formation of a workgroup that would “examine the ethical pitfalls and practical uses of AI and report back within the year.” The ultimate goal is for the workgroup to provide recommendations on the policies related to AI that should be implemented by the state bar.

Finally, in May, the California Bar created a committee tasked with examining the impact of AI on the profession. The goal is to draft an advisory ethics opinion for release in November that would address the risks and benefits of using AI in legal practice and provide guidance on how to do so while complying with ethical obligations.

In the meantime, because generative AI technology is evolving so fast, you may as well learn as much as you can about it. That way, when the time comes, you’ll be able to make an informed decision about whether and how to use it in your law firm.

The guidance offered by the various state bars will help, but you’ll need to have a foundational knowledge of AI technology in order to make an educated choice that complies with the findings and determinations of the appropriate committee.

This course of action not only makes sense, it also ensures compliance with the duty of technology competence.

To get started, there are three sites with sections devoted to AI that will enable you to easily track the latest generative AI news: Above the Law, Legaltech News, and ABA Journal.

And if you’re really interested in a deep dive into ChatGPT and best practices for using this tool in your law practice, there’s a course available that is offered by New Orleans attorney and legal technology consultant, Ernie Evenson. It’s a free course called “Using ChatGPT in Modern Practice."

So whether you’re a legal tech geek or a curmudgeon, never fear: the technological and ethical assistance that the legal community has been seeking will arrive soon. While you’re waiting, embracing these changes and preparing for the new regulatory landscape is a great way to chart an innovative course while continuing to serve your clients effectively. The intersection of law and AI is a journey, and with the right roadmap, it’s one that promises to be both rewarding and impactful.

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

Ethical implications of charging credit card fees: Insights from the NYSBA

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

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The Ethical Implications of Charging Credit Card Fees: Insights from the NYSBA

As the legal profession adapts to the digital age, the types of payment methods accepted from clients have likewise evolved. Lawyers in 2023 accept many forms of payment from clients, including credit cards. In fact, accepting credit card payments for legal services has become increasingly commonplace.

However, that wasn’t always the case. When lawyers first proposed the idea of accepting credit cards for payment of legal fees, there was significant resistance. The concern was that legal clients who were facing the complexities of their cases would be further burdened by the additional costs associated with credit cards. This resistance was grounded in our profession's commitment to maintaining a fair and equitable relationship between lawyers and clients.

Over time, however, attitudes changed. Credit cards were viewed with less skepticism, and as a result, many lawyers now regularly accept credit cards from clients. By doing so, they increase access to justice by making it possible for potential clients to afford lawyers when they might otherwise have been unable to do so. In other words, when lawyers accept credit cards, they offer their clients much-needed flexibility and convenience.

However, with this ease of payment comes new ethical considerations. Credit cards are a unique form of payment and as is always the case when it comes to any type of legal fee arrangement, transparency and reasonableness are always essential, as recently explained by the New York State Bar Association in Ethics Opinion 1258 (Online: https://nysba.org/ethics-opinion-1258-credit-card-fees-as-an-expense/). 

At issue in this opinion was whether it is ethical for lawyers to pass credit card processing fees onto clients as an expense, and under what circumstances. 

In reaching its determination, the Committee on Professional Ethics first confirmed that lawyers in New York can ethically accept credit cards from clients to pay for legal services as long as the following conditions are met: 1) The legal fee charged is reasonable; 2) The attorney maintains the client's information in strict confidence; 3) The lawyer doesn't let the credit card company influence their independent professional judgment when representing the client; 4) The lawyer informs the client prior to processing the credit card charges, giving the client an opportunity to question any billing discrepancies; and 5) In case of any disagreements regarding the lawyer's fee, the lawyer seeks to obtain a peaceful and quick resolution, and if relevant, follows the fee dispute resolution program set forth in 22 N.Y.C.R.R. Part 137.

Next, the Committee turned to the issue of charging clients the cost of the merchant processing fee. According to the Committee, Rule 1.5(a) of the New York Rules of Professional Conduct, prohibits attorneys from imposing "an excessive fee or expense" on a client. The rule outlines a series of factors, although not exhaustive, to help determine if a fee or expense is too high. The Committee explained that when a lawyer wants to pass a merchant processing fee to a client who uses a credit card for payment of legal services, it is considered an "expense" under Rule 1.5(a), which mandates that an attorney provide written notification to the client about the "fees and expenses" for which they will be accountable.

The Committee concluded that because a merchant fee from a credit card transaction is an “expense,” New York lawyers are permitted to transfer the merchant processing fee to clients who use credit cards to pay for legal services, as long as both the lawyer's fee and the processing fee are reasonable, and the lawyer previously notified the client in writing and received their approval to proceed.

Protecting the interests of legal consumers is essential regardless of the payment method accepted. This opinion, and others like it, play a pivotal role in safeguarding the interests of legal clients. They ensure that regardless of the payment method, the ethical standards of the profession prioritize the rights and interests of clients, reinforcing the fundamental principles of fairness and integrity in legal practice. 

Of course, whether it’s good business to pass processing fees onto clients is a different issue. Just as you may avoid gas stations that charge more for gas, so too may a legal client avoid a law firm that abides by this practice. 

Another option would be that once your firm begins to accept credit cards, consider increasing hourly rates across the board to account for expected credit card processing charges. Either way, your firm gets paid the same amount, but the process is simplified and your client likely will feel less resentment. Ultimately, the choice is yours, and you should do what works best for your firm and its clients.

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

ABA Ethics Committee on Copying Clients on Emails to Opposing Counsel

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

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ABA Ethics Committee on Copying Clients on Emails to Opposing Counsel

In a few of my recent columns, I've addressed the many issues encountered when lawyers use electronic forms of communication. Among them are the host of security and ethical issues encountered when lawyers use email to communicate with their clients. Notably, there’s a reason I keep writing about this topic: in recent months, ethics committees from multiple jurisdictions have handed down opinions focused on these very issues.

Most recently, I discussed a New City Bar Association ethics opinion, Formal Opinion 2022-3. At issue in this opinion was whether it is ethical for lawyers to cc or bcc their clients on emails sent to other attorneys. The Committee on Professional Ethics explained that this common practice triggers several ethical concerns and advised lawyers to think twice before copying clients on an email.

One situation that the New York City Ethics Committee addressed was whether lawyers should bcc “their client on an email with other counsel and the client then replies to all.” The Committee joined other jurisdictions in concluding that in that situation, the attorney of the client who has been bcc’d “has not impliedly consented, without more, to other counsel’s contacting the attorney’s client.”

The American Bar Association addressed this same issue a few weeks ago in Formal Opinion 503.

The ABA Committee considered the issue of implied consent when bcc’ing a client and reached a result that differed from that of several ethics committees, including the New York City Ethics Committee. 

The ABA Committee explained the rationale for its departure was grounded in providing clarity for lawyers seeking ethical guidance: “Several states have answered this question in the negative, concluding that sending lawyers have not impliedly consented to the reply all communication with their clients. Although these states conclude that consent may not be implied solely because the sending lawyer copied the client on the email to receiving counsel, they also generally concede that consent may be implied from a variety of circumstances beyond simply having copied the client on a particular email….This variety of circumstances, however, muddies the interpretation of the Rule, making it difficult for receiving counsel to discern the proper course of action or leaving room for disputes.”

According to the ABA Committee, a clear-cut rule was required in order to remove any doubt and ensure that lawyers clearly understood how to proceed when copying clients on emails: “In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s ‘reply all’ to the communication.”

Next, the Committee provided lawyers seeking to share emails with their clients with alternative mechanisms: “(U)nless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.”

While the ABA Committee’s intent is to provide clarity, its determination is at odds with the conclusions reached in other jurisdictions. As a result, lawyers are faced with conflicting conclusions about the proper use of email, and unfortunately, I fully expect things to get worse as more jurisdictions address the landmine of ethical issues presented by email communications with clients.

As far as I’m concerned, the writing is on the wall: email is outdated, and lawyers should consider using more secure electronic communication methods, such as client portals, in order to protect client confidentiality and avoid ethics violations. There are better, more secure electronic communication methods available, and I would strongly recommend making that transition sooner rather than later.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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 [email protected].

New York Bar on Whether Lawyer YouTube Videos Constitute Advertising

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

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New York Bar on Whether Lawyer YouTube Videos Constitute Advertising

Lawyers have been advertising online for more than two decades. As technology evolves, the methods of online advertising also change. New social media platforms are launched, and the features of existing sites are regularly modified. 

Because the online world is ever-changing, it can sometimes be difficult for lawyers to navigate the ethical issues that arise when engaging online, especially when it comes to attorney advertising. Some interactions can be deemed personal, while others are professional. And, not all professional interactions necessarily equate to attorney advertising. 

As a result, it can sometimes be difficult to determine whether attorney advertising rules apply. Fortunately, bar association ethics committees regularly issue opinions as to which online interactions constitute attorney advertising and thus require the appropriate disclaimers.

For example, last week, the New York State Bar Association Committee on Professional Ethics handed down Ethics Opinion 1251, which focused on whether educational YouTube videos released by lawyers constitute lawyer advertising.

At the outset, the Committee confirmed that lawyers are permitted to educate the public on legal topics, and that, generally speaking, doing so does not constitute attorney advertising: “It is not unethical for a lawyer to write articles, give lectures, or write a blog about topics of general or specific interest, including the law.”

The Committee then turned to educational YouTube videos, likening them to law firm newsletters. It explained that the application of a three-prong test previously established to determine whether newsletters constituted advertising was appropriate in the context of analyzing the content of attorney YouTube videos. That test required an assessment of “the content of the communication, the intent (purpose) of the communication, and the targeted audience of the communication.” 

Next, the Committee provided examples of educational YouTube content that would not require an attorney advertising disclaimer: “To the extent that the YouTube videos provide general legal information for the public about ‘being a lawyer in the U.S.’ and ‘work-life balance,’ the videos would not constitute advertising.”

In comparison, as the Committee explained, videos focused on promotional news about the lawyer or law firm fall under the ambit of lawyer advertising: “To the extent, however, that the YouTube videos include information and news about the lawyer and her law practice for the primary purpose of retention of the inquirer, they would constitute advertising.”

The Committee also provided clarification regarding other ethical issues that may arise even when the YouTube channel and videos do not amount to attorney advertising. 

First, the Committee advised that “publishing and linking the inquirer’s name and contact information with the channel will not, in and of itself, push the content of the videos across the line into advertising.”

Second, the Committee advised lawyers to tread with caution when responding to any comments to the videos and provide only general information rather than individual legal advice in order to avoid the risk of inadvertently creating an attorney-client relationship.

Finally, the remaining issue addressed related to the possibility that a law firm might link to the YouTube channel or video from the firm’s website or other types of online firm advertisements. According to the Committee, in that situation, it may be appropriate to label the videos as lawyer advertising. 

This opinion provides lots of helpful advice, so I would suggest you read it in its entirety, especially if you’re licensed to practice in New York. If you’re a New York lawyer, should your firm choose to use YouTube or other video platforms to share educational videos, make sure to follow the guidance from this opinion. Finally, if you’re still unsure whether an attorney advertising disclaimer is required, I would suggest you include it. As I always say, better safe than sorry.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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 [email protected].

Pennsylvania on the ethics of using smartphones for client data storage

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

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Pennsylvania on the ethics of using smartphones for client data storage

These days most lawyers use smartphones for work-related reasons. Smartphone use has become so common that according to the ABA’s 2022 Legal Technology Report, 81% of lawyers surveyed reported that they used smartphones in the courtroom.

Of course, whenever lawyers use technology, security and ethical risks must be considered, and smartphones are no exception. Fortunately, state ethics bars are rising to the occasion and providing guidance for lawyers who store confidential client contact information on their mobile devices.

For example, a few months ago I wrote about New York Ethics Opinion 1240. In this case, handed down in April, the Committee on Professional Ethics considered whether it’s ethical for lawyers who store current, former, or prospective client contact information on their phones to consent to share their contacts with a smartphone app.

The Committee concluded that if a lawyer found that the contact information included confidential client information, “the lawyer may not consent to share contacts with a smartphone app unless the lawyer concludes that no human being will view that confidential information and that the information will not be sold or transferred to additional third parties, without the client’s consent.”

More recently, Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility addressed a similar issue. In Formal Opinion 2022-500, the Committee considered the ethical considerations that arise when lawyers store client information on a smartphone.

The Committee agreed, in part, with the conclusions reached by the New York committee relating to client contact information stored on mobile devices, but expanded its focus to also address issues concerning others types of confidential information stored on smartphones.

The Committee explained that the Pennsylvania Rule of Professional Conduct 1.6, which addresses client confidentiality, differs from New York’s Rule and precludes a lawyer from revealing “information relating to representation of client,” a concept that encompasses a broader range of data than the New York Rule.

As a result, the Committee determined that if a lawyer’s smartphone contains information relating to client representation, “then the lawyer may not consent to share the information with a smartphone app unless the lawyer concludes that no human being will view that information, and that the information will not be sold or transferred to additional third parties, without the client’s consent.”

Precautions lawyers must take to protect confidential client information governed by Pa.R.P.C. 1.6. In some circumstances, this may include declining to give certain permissions to certain apps, avoid installing certain apps, or choosing not to store confidential information on their smartphones.

The Committee provided the following guidance for lawyers seeking to comport with their ethical obligations to maintain client confidentiality when using mobile devices and interactign online:

• When possible, do not store Rule 1.6 information on smartphones.
• Limit the ability of apps to access data, such as contacts, calendars, photographs, camera, microphone, location, files and more. While lawyers have an ethical obligation to do so, it also makes sense to limit the access of apps as much as feasible to protect the privacy of clients and lawyers.
• Android and Apple make it relatively easy to determine which apps access which types of data. For Apple users, check and set permissions by going to Settings > Privacy. For
Android users, check and set permissions by going to Settings > Apps > tap the App >
Permissions. The manufacturers also provide guidance on their websites.
• Minimize risks by not oversharing on social media.
• Keep device software up to date.
• Use a device passcode.
• Use a password manager.
• Enable Multifactor Authentication (MFA) when available.
• Always check and set app permissions to bar or minimize exposure of extraneous data to apps while retaining their functionality.

The guidance offered in both opinions is useful regardless of whether you’re licensed in those jurisdictions. This is especially so if your jurisdiction has not yet weighed in on these ethical issues.

The bottom line: take care whenever you interact online and when storing confidential client data on your mobile devices. Think before you type, and carefully consider whether to share client-related data, including contact information, with any apps that you download.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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 [email protected].

Pennsylvania Provides Further Guidance on Secure Client Communication

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

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Pennsylvania Provides Further Guidance on Secure Client Communication

Are you still using email to communicate with your clients about confidential matters? If so, you might want to re-think that approach. Because when it comes to secure communication, the tide is most decidedly turning.

For many years there were rumblings of security issues with email in earlier opinions, and in 2017 the American Bar Association weighed in more definitively when it issued Opinion 477R. In that opinion, the ethics committee concluded that lawyers should avoid using unencrypted email when discussing particularly sensitive matters. Then, during the early days of the pandemic, both Pennsylvania (Formal Opinion 2020-300) and Wisconsin (Formal Ethics Opinion EF-21- 02) ethics committees referenced the ABA opinion’s conclusion and adopted its basic premise regarding secure communication in the context of providing ethical guidance for remote work.

Fast forward to 2022, and the Pennsylvania Bar Association has issued yet another helpful opinion that offers further guidance on the obligation of lawyers when communicating with clients using unencrypted email. In Formal Opinion 2022-400, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility considered the ethical obligations of attorneys when “transmitting information relating to the representation of a client to clients, opposing counsel, judges, and others.”

The Committee reviewed the ethical obligations triggered when lawyers communicate with clients along with the conclusions reached in other jurisdictions related to secure electronic communications. The Committee ultimately determined that in some situations, it is ethically permissible for attorneys to communicate about clients for work-related purposes using unencrypted email.

However, the Committee concluded that prior to doing so should, lawyers should, on a case-by-case basis, evaluate the benefits and risks associated when using unencrypted email given the nature of the information that will be discussed. Attorneys must discuss the risks and benefits of unencrypted communication with their clients, and if the risks outweigh the benefits, compliance with competence requirements may necessitate the use of more secure methods for communication.

According to the Committee, certain information should never be sent using unencrypted email, such as when a client has requested maximum security for certain information or when highly sensitive materials are being discussed or shared. The Committee also provided valuable guidance to help lawyers determine whether unencrypted email is the most appropriate method for a particular communication.

The Committee explained that lawyers should:

Whenever possible, avoid transmitting files containing information relating to the representation of a client as email attachments
Consider using “Encrypt & Prevent Forwarding” features if available
Advise clients not to forward emails or memos to third parties.
Encrypt communications or use passwords for attachments containing client-related information
Reduce the likelihood of unauthorized access by using a central file-sharing portal, cloud storage provider, or similar service
Consider using a client portal to eliminate the need to attach files to email and or use an end-to-end encrypted email service.

The easiest way to protect confidential client information when communicating electronically is to use a secure client portal built for law firms, like the ones built into law practice management software. By doing so, you avoid the hassle of assessing security risks on a case-by-case and email-by-email basis.

Encrypted email can be difficult to set up and often requires the assistance of an IT expert. In comparison, client portals are built into user-friendly software, and no IT assistance is needed to set them up.

Secure client communication portals provide an encrypted tunnel that protects client data and solves the problem of scattered communications. All client portal messages are stored in a secure, centralized online location that is easily accessible 24/7. All messages are connected with the appropriate case file, and your client’s confidential information is protected from prying eyes.

If your law firm is still using unencrypted email to discuss confidential client issues and has not yet transitioned to a more secure communication method, there’s no time like the present to make that change. The writing is on the wall: unencrypted email is an outmoded and ethically questionable way to communicate about client matters. Make the switch to an encrypted form of electronic communication today, and rest easy knowing that your law license, and your client’s data, are protected.

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

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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 [email protected].

Technology Competence Requires Ethical Compliance During Remote Proceedings

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

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Technology Competence Requires Ethical Compliance During Remote Proceedings

With new COVID-19 variants popping up left and right, we face renewed uncertainty about the pandemic and the near future. As a result, many law firms continue to allow remote work, and some legal proceedings are occurring virtually.

The challenging times we face highlight the importance of ensuring that not only that your law firm is as fully functional as possible when working remotely, but that lawyers and staff comply with ethical obligations even when attending online proceedings.

Part of this requirement is that lawyers maintain a duty of technology competence. Technology competence is not a new concept. There are now 40 states that have adopted this ethical requirement. The most recent one to do so was Hawaii, which revised Comment 6 to Rule 1.1 of the state’s Rules of Professional Conduct to indicate that lawyers must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” The revision became effective earlier this year on January 1, 2022.

As more states increasingly adopt this ethical requirement, it becomes all the more important for lawyers to have a thorough understanding of their technology competence obligation, which includes understanding their ethical duties and how they apply during remote proceedings. The failure to do so can often have significant ramifications.

Case in point: a recent State Bar of Arizona disciplinary proceeding wherein a lawyer was recently suspended for 60 days for impermissibly coaching a client by using chat features while the client was being cross-examination on a video meeting platform.

In the Matter of a Member of the State Bar of Arizona, Ryan Patrick Claridge, Bar No. 031752, it was alleged that Claridge sent chat messages to his client that “directed her to provide specific, substantive answers to specific questions that were being asked of her.”

According to the Court, when Claridge was admonished for sending the chat messages, he agreed to stop sending them but justified his actions by saying that “it would be the same as if I shook my head in the courtroom.”

The Court disagreed and imposed sanctions after concluding that his “conduct violated Arizona Supreme Court Rule 42, specifically: ER 3.4(a)(fairness to an opposing party; ER 8.4(c)(deceit); and ER 8.4(d)(conduct prejudicial to the administration of justice)...”

This conclusion makes sense. After all, virtual behavior is simply an extension of offline behavior, and coaching clients during a deposition is impermissible whether it’s done in person or electronically. In other words, the medium doesn't change the message.
When participating in a remote deposition, understanding your jurisdiction’s ethical rules is paramount. Doing so ensures that your interactions both online and offline are permissible. With that necessary foundation, you'll be in a position to assess whether your virtual conduct is, in fact, ethical.

Certainly, the online world sometimes presents situations that are not easily translated into offline conduct, but I would argue that this was not one of them. During depositions, coaching is coaching no matter the format, and doing so is unethical.

As we head into a future that will undoubtedly include increased online interaction even after the pandemic has abated, it’s all the more important to ensure that you err on the side of caution and tread lightly when interacting remotely with clients, opposing parties, their attorneys and the court. As I always say, better safe than sorry - especially when your license to practice law could be at risk.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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 [email protected].

NYC Bar on Ethics of Copying Clients on Emails

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

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NYC Bar on Ethics of Copying Clients on Emails

Lawyers have used email for decades, ever since the mid-1990s when ethics committees determined that it was permissible for lawyers to use email to communicate about case-related matters. Fast forward to 2022, and most lawyers now use email at least occasionally as part of their day-to-day practice.

However, some have begun transitioning to more secure communication methods like encrypted client portals. This switch is occurring because traditional email can be problematic for several different reasons.

For starters, it’s inherently unsecure and is the equivalent of mailing a postcard written in pencil. For that reason, as technology improves, ethics standards are changing with the times, and a number of jurisdictions have handed down opinions advising lawyers to avoid unecrypted email when discussing particularly sensitive information.

Another problem encountered when using email is that the features that allow copying (cc) or blind copying (bcc) clients, while seemingly innocuous, can present ethical issues. The NYC Bar recently opined on this practice in Formal Opinion 2022-3. At issue was whether it is ethical for lawyers to cc or bcc their clients on emails sent to other attorneys.

The Committee on Professional Ethics explained that this common practice triggers several ethical concerns: “Attorneys who copy their clients on email communications with other counsel may expose their clients to risks, including: (1) that the client will receive a direct communication from other counsel; and (2) that the client will intentionally or inadvertently reveal confidential information or waive privilege by replying to all.”

At the outset, the Committee focused on the ethical obligations of the client’s attorney in this situation. According to the Committee, attorneys who choose to copy their clients on emails to other counsel must engage in a risk-benefit analysis. The Committee explained that in litigation and other adversarial matters, the risk nearly always outweighs the benefit. Thus in those cases, lawyers should consider forwarding the email to their clients rather than copying them on the email.

In comparison, for less contentious proceedings, lawyers can copy their clients on emails with other attorneys but should consider taking the precaution of “(1) entering into an agreement with the other attorneys making clear who is to be cc’d on communications; and (2) discussing the risks of such communications with the client, advising the client to be mindful of such risks, and ensuring the client’s appreciation of the risks and agreement to proceed as contemplated.”

Next, the Committee addressed what a lawyer should do upon receiving an email from an attorney in which that attorney’s client is copied. After considering precedent from both the NYC Bar and other jurisdictions, the Committee determined that “an attorney who cc’s their own client on an email to other counsel should reasonably expect that such other counsel will use the reply all function and thus consents to the other counsel doing so within the meaning of Rule 4.2(a).” However, the Committee cautioned that “(t)his implied consent is limited, however, and must be construed reasonably under the circumstances.”

Finally, the Committee considered the receiving attorney's ethical duty when opposing counsel “bcc’s their client on an email with other counsel and the client then replies to all.” The Committee concluded that in that situation attorney of the client who has been bcc’d “has not impliedly consented, without more, to other counsel’s contacting the attorney’s client.”

If you’re a New York lawyer and are still using email to communicate with clients, take heed. Think twice before adding clients to an email. Otherwise, you risk opening up a Pandora’s box of ethical risks. I would instead suggest that a wiser route to take would be to avoid the ethical issues altogether by simply forwarding the email to your client. As I always say, better safe than sorry.

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

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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 [email protected].

 

Sign of the Times: New York To Require Cybersecurity CLE Credits

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

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Sign of the Times: New York To Require Cybersecurity CLE Credits

When was the last time you attended a CLE course focused on cybersecurity issues? If you’re anything like most lawyers, chances are you’ve never taken one. But if you’re a New York lawyer, that will soon change.

For many members of the legal profession, technology adoption tends to be an afterthought, trumped by the noble cause of client representation. After all, you didn’t go to law school to learn about mobile apps and cloud computing software; your goal was to learn how to practice law.

Unfortunately, the tides of change have other plans. Over the past decade, technology has advanced at unprecedented rates. The internet has become our source of truth, and cloud computing is now the default computing system used by people - and lawyers - worldwide. Mobile devices are prolific in the legal profession, and smartphones are commonplace.

Even before COVID-19, technology was unavoidable. But after the onset of the pandemic, legal technology adoption accelerated at rates never before seen as lawyers sought to keep their firms afloat despite the social distancing requirements and unpredictability of the pandemic.

A side effect of the rapid uptick in technology use by lawyers was the significant increase in cyberattacks, including email phishing, email spoofing, malware, social engineering attacks, and brute force hacking. This was bad news for the law firms that were struggling with technology adoption and implementation and many were wholly unprepared for the frequency and variability of the attacks.

As we try to find a new normal on what may be the other side of the pandemic, cybersecurity concerns are paramount for many law firms, which is why New York’s recently enacted cybersecurity CLE requirement is so timely.

Last month, on June 10th, the Departments of the New York State Supreme Court, Appellate Division issued a Joint Order that requires that all New York attorneys complete one hour of cybersecurity continuing legal education as part of their biannual registration requirement. The Order takes effect on January 1, 2023.

The new CLE requirement encompasses two types of cybersecurity courses. Lawyers will have the option of taking a cybersecurity CLE focused on either ethics or law practice.

The ethics option covers cybersecurity, privacy, and data protection, and ethics, and “must relate to lawyers’ ethical obligations and professional responsibilities regarding the protection of electronic data and communication.”

In comparison, the training related to practicing law encompasses the “technological aspects of protecting client and law office electronic data and communication,…vetting and assessing vendors and other third parties relating to policies, protocols and practices on protecting electronic data and communication; applicable laws relating to cybersecurity (including data breach laws) and data privacy; and law office cybersecurity, privacy and data protection policies and protocols.”

So pick your poison, New York lawyers. Come January, a cybersecurity CLE is in your future. It’s simply a matter of choosing the cybersecurity category that provides the foundational knowledge that you need to maintain your already-existing ethical obligation of technology competence. No matter how you look at it, it’s a win-win situation all around.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education 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 [email protected].