Sui Generis--a New York law blog

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].

New York on the Ethics of Sharing Phone Contacts With Mobile Apps

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

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New York on the Ethics of Sharing Phone Contacts With Mobile Apps

It’s hard to believe that it’s been fifteen years since the iPhone was released. A lot has changed during that time, not the least of which is the number of lawyers who use smartphones, with the vast majority of attorneys now owning smartphones in 2022. Many also regularly download many different apps onto their mobile devices, which isn’t surprising since the apps are oftentimes what make our mobile devices truly useful.

Unfortunately, mobile apps can also present ethical issues for lawyers, especially when it comes to the types of information collected by an app. For example, some apps require access to all of the contact data stored on your mobile device. Because so many lawyers store client contact information on their phones, consenting to disclose that information can trigger ethics regulations.

This very issue was recently addressed in 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.

At the outset, the Committee addressed the ways that contact data can be exploited after being shared with an app: “Social media apps may…establish links between users…(or) sell products or services may seek such access to promote additional sales…(or) disseminate…(political) views.”

Next, the Committee confirmed that the names of clients can amount to confidential information, as can the existence of a client contact on a lawyer’s mobile device. The Committee explained that “(a) contact could be confidential because it reflects the existence of a client-attorney relationship which the client requested not be disclosed or which, based upon particular facts and circumstances, would be likely to be embarrassing or detrimental to the client if disclosed.”

According to the Committee, “a client is more likely to find that disclosure of the fact of a current or prior representation by a lawyer is embarrassing or detrimental where the representation involves or involved criminal law, bankruptcy, debt collection or family law.”

For that reason, lawyers must make “reasonable efforts to prevent the unauthorized access of others to those names, whether stored as a paper copy in a filing cabinet, on a smartphone, or in any other electronic or paper form.”

Therefore, before downloading an app that requires access to contacts on the phone, lawyers must “determine whether any contact – even one – is confidential within the meaning of Rule 1.6(a).”

There are a number of factors that should be considered when assessing the confidentiality of a client contact. First, determine whether “the contact information identifies the smartphone owner as an attorney, or more specifically identifies the attorney’s area of practice (such as criminal law, bankruptcy law, debt collection law, or family law).” Another issue to think about is whether the contact data on the phone specifies that the person is a client, as opposed to a friend or family member. Finally, consider the other types of personal information included in a contact, such as email addresses, residence or work addresses, the names of family members, financial data, or other information not readily available in the public realm.

The Committee concluded that if, after making that assessment, 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.”

In other words, if you choose to store client contact information on your mobile device, tread lightly when downloading apps. If an app requires access to contact data, think twice lest you open up a can of worms that could lead to client embarrassment, a disciplinary complaint, or even the loss of your law license. 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].

 

Round Up: Law Practice Management Software, Litigation Fact Management Software, ABA TECHSHOW, and More

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles published from March:

• Plenty of options when it comes to litigation fact management software - ABA Journal
• ABA TECHSHOW 2021: It's Virtual But Still Has Lots To Offer - Above the Law
• New York Provides Zoom Decorum Advice Because Lawyers Clearly Need It - Above the Law
• ABA (Virtual) Techshow 2021: All You Need to Know - MyCase Blog
• ABA TECHSHOW 2021: It’s a Wrap! - MyCase Blog
• ABA Techshow 2021 Visual Notes: Responding to Online Disinformation - MyCase Blog
• The Case for Law Practice Management Software - MyCase Blog

How law firms are adapting to remote work

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

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How law firms are adapting to remote work

Lawyers across the country have been sheltering in place for weeks now, and for many, there is no immediate end in sight. The move to remote work was a sudden one, with governors instituting social distancing requirements seemingly overnight. Notably, many firms were unprepared for this change, and as a result business continuity proved to be a pressing issue.

However, over time, firms adapted. They had to; they had no choice.

Now that a few weeks have passed, working from home has become the new normal, but it hasn’t always gone smoothly. The transition was easier for some firms than others, as borne out by the results of a recent survey. The nationwide survey was conducted by MyCase (the company for which I work) from April 8th-10th, with 819 legal professionals responding. Some findings regarding remote work were expected, but others were more surprising.

For starters, the transition to working from home full-time occurred fairly quickly for many firms, with 46% reporting that it took a day or less to establish a virtual law practice. 31% shared that it took 2-3 days, 13% did so after a week, and for 10% of respondents it took 2 weeks or more.

Not surprisingly, the majority of lawyers reported that at the time of the survey their firms were operating remotely in one form or another. After all, necessity breeds ingenuity. Specifically, 48% of lawyers indicated that all law firm employees were working remotely. Another 39% shared that some of their employees were working remotely. Only 12% reported that their firms were open for business with all employees working in the physical office. Finally, only 1% had closed their firms’ doors for the time being.

Most law firms didn’t have all of the necessary technology tools in place to enable their firms to move to a remote practice overnight. This was an unprecedented situation, so the lack of preparedness was to be expected. That being said, the majority of legal professional have adapted to the sudden change in circumstance very adeptly, and at an incredibly rapid pace. So much so that that I’d go so far as to say that much of the technology adoption that occurred over the past month would not have otherwise occurred for another 5 years or more.

Because working remotely necessarily requires better communication methods, it’s no surprise that due to the shelter in place mandates certain forms of online communication exploded in popularity overnight. The survey results provided insight into the specific tools adopted by law firms over the past month.

Video conferencing was the top technology adopted by firms due to remote work requirements, with 529 indicating that their firms had begun to use it. Next, 235 respondents shared that their firms had invested in new hardware, such as laptops. 206 reported that their firms had not adopted any new technology, followed by VOIP phone systems (55), online fax (55), data backup (49), payment tools (47), internet security (46), and other (34).

Finally, the responding lawyers weighed in on whether they felt prepared to work from home with the technology tools supplied by their firm. The survey results showed that 79% of law firm staff using cloud-based systems felt that they had what they needed to work from home, whereas only 59% of non-cloud based users sharing that sentiment. 

Has your firm moved to remote work? How does your firm’s transition process compare? Hopefully you feel well prepared to provide legal services while working from home. If not, rest assured, there is technology available that can fill the gap and streamline your work processes so that you’re able to work as efficiently and effectively from home as you do in the office. But if you don’t take advantage of it, you only have yourself to blame. So what are you waiting for? Research your options, choose the right tools, and get to work!

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 [email protected]. 

 

Cloud and mobile computing trends for lawyers in 2020

Here 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 [email protected]. 

Round Up: Cybersecurity, Dictation Tools, and Law Firm Disaster Planning

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles since  August:

• Lawyers have many options when it comes to designing their firm's websites - ABA Journal 
• Speech-to-text dictation: A 21st-century twist to a traditional law firm tool - ABA Journal 
• Haben Girma: A Zealous Advocate For Disability Rights - Above the Law
• ILTACON 2019 — Smarter Email, AI Contract Review, And More - Above the Law
• ILTACON 2019: AI Legal Research Bots, Threat Manager Tools, And More - Above the Law
• Lawyers, Cybersecurity, And Data Breaches: Your Ethical Obligations - Above the Law
• ABA 2019 Report: Lawyer Demographics, Earnings, Tech Choices, and More - MyCase Blog
• 3 Ways Legal Software Can Improve Law Firm Oversight - MyCase Blog
• It’s Hurricane Season: Does Your Law Firm Have a Disaster Plan? - MyCase Blog
• Email Tracking: One More Reason Lawyers Should Avoid Email - MyCase Blog
• Managing a Small Law Firm: 3 Tips for Efficient Law Firm Oversight - MyCase Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

Round Up: Legal Innovation, Law Firm Billing, Legal Tech Gadgets, and More

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from August and September 2018:

• Simplify a tedious deposition review with technology - ABA Journal 
• Cashing in with credit-card processing software - ABA Journal (
• An Open Letter to Potential Law Students: Know the Truth - ABA Journal
• Product Note: udoq Multi-Device Charging Station - ABA GPSolo eReport 
• Law Firms, Artificial Intelligence, And The Fork In The Road (Above the Law)
• Justice Sonia Sotomayor: An Insightful And Inspirational Role Model (Above the Law)
• Asked And Answered: What Law School Classes Do You Wish You’d Taken? (Above the Law)
• Innovation In Legal Services: A Pipe Dream Or A Necessity? (Above the Law)
• Asked And Answered: What Benefits Would You Like Bar Associations To Offer? (Above the Law)
• Streamline Your Law Firm’s Billing With These 3 Tips (MyCase Blog)
• Announcing the MyCase Dropbox Integration! (MyCase Blog)
• Asked and Answered: What Were Your Most Useful Law School Classes? (MyCase Blog)
• What’s New at MyCase? Lots of Updates! (MyCase Blog)
• The Best Free Online Legal Resources for Lawyers (MyCase Blog)
• Law Firm Billing 101: How to Invoice Efficiently and Get Paid Quickly (MyCase Blog)
• 3 Tech Gadgets for Lawyers: Reviews and Recommendations (MyCase Blog)

ABA survey shows lawyers are more mobile than ever in 2018

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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ABA survey shows lawyers are more mobile than ever in 2018

The iPhone was released in 2007, and it revolutionized the way that we communicate and access information. Smartphones, once a novelty, are now commonplace, in the legal profession. This is because, unlike other types of technology, lawyers jumped on the mobile bandwagon fairly quickly.

As evidenced by the results of the 2017 ABA Legal Technology Survey, lawyers are more mobile than ever before. The reasons are many: mobile computing offers convenience, flexibility, and 24/7 access to important information. Given all the benefits, it’s no wonder that lawyers have taken to mobile devices like a fish takes to water.

According to the survey results, lawyers use a number of different types of mobile devices for law-related tasks while away from their offices. Smartphones are the most commonly used, with 96% of lawyers reporting that they used smartphones while outside the office. Lawyers from firms of 10-49 and from firms of 100-499 used them the most often, with both sets of lawyers reporting usage levels at 98%. Next up were lawyers from firms of 500 or more (97%), followed by lawyers from firms of 50-99 (96%), 2-9 (95%), and solos (93%).

Laptops are also popular, with 81% of lawyers using them for law-related purposes while away from the office. Lawyers from firms of 500 or more reported the greatest use of laptops while out of the office (94%). Lawyers from firms of 100-499 were next at 89%, followed by lawyers form firms of 50-99 (85%), 2-9 (83%), 10-49 (82%), and solos. (74%).

Lawyers were the least likely to use tablets for mobile access while away from the office, with 50% reporting that they did so. Lawyers from firms of 500 or more used tablets the most often (61%). Next up were lawyers form firms of 2-9 (52%), followed by lawyers from firms of 10-49 (51%), solos (49%), lawyers form firms of 50-99 (46%), and lawyers form firms of 100-499 (36%).

According to the lawyers surveyed, they used mobile devices from a variety of different locations.The most common place that lawyers used their mobile devices was their home (96%), followed by hotels (93%), while in transit (89%), airports (85%), clients’ offices (75%), in the courthouse (70%), and other attorneys’ offices (71%).

When it comes to courtroom usage, according to the survey, 57% of lawyers who appear in court have used laptops in the courtroom, up from 46% in 2014. Tops uses for laptops include email (34%), accessing key evidence and documents (33%), legal research (29%), accessing court documents and dockets (27%), calendaring (24%), and delivering presentations (23%).

80% of lawyers who appear in court report using their smartphone in court. Some of the most popular uses include: email (72%), calendaring (58%), real-time communications (44%), legal research (24%), accessing court dockets and documents (15%), and accessing the firm’s network (14%).

When it comes to tablets, 38% of lawyers who appear in court reported using them in court. Tablets were used to accomplish a number of tasks, including email (29%), legal research (25%), calendaring (21%), accessing court documents and dockets (16.5%), and accessing key evidence and documents (15%).

So that’s how lawyers are using mobile devices to practice law in 2018. How does your mobile device usage compare? If you use your mobiles devices less often than your colleagues, perhaps you’re not fully taking advantage of the many benefits the mobile computing offers.
Then again, there are undoubtedly drawbacks to the mobile age, not the least of which is the psychological impact of the perception of 24/7 availability. While it’s not always an easy juggling act, the benefits of mobile access are many, both for lawyers and their clients. The key is to find the right balance between the convenience of easy access to information and maintaining the necessary boundaries between work and your home life. Once you’ve found a balance that works for you, you’ll reap the benefits of the flexibility of mobile computing.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive, powerful law practice management software for solo and small law firms. She is also 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 West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at [email protected].

 

iPhone health app data used in murder prosecution

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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iPhone health app data used in murder prosecution

If, like me, you’re a fan of the Netflix series, Black Mirror, then you’re well aware of the many ways that our digital footprints can potentially be used against us. In this series, the writers envision futuristic timelines where technologies currently available are taken to their extreme, resulting in disturbing, dystopian story lines, some of which have since come to fruition in one way or another.

The message of this series is clear: technology can greatly benefit our lives, but also creates the potential for unbridled violations of our privacy by governmental and corporate entities. It’s a delicate balance of interests that can easily go awry in the absence of careful, thoughtful regulation. And unfortunately, technology is moving so quickly that legislators simply can’t keep up.

One area where we’re seeing this delicate balance play out is in the courtroom. Data from mobile and wearable devices is increasingly being used in both civil and criminal cases.

For example, in mid-2015 I wrote about an emerging trend where data from wearable and mobile devices was being used in the courtroom (online: http://nydailyrecord.com/2015/08/14/legal-loop-wearable-tech-data-as-evidence-in-the-courtroom/). In that column I discussed two cases where Fitbit data was used: one where it was offered as evidence to support a personal injury claim and the other where it was used to disprove a complainant’s rape allegations.

Then, in early 2017, I wrote about another case where Fitbit data and other digital evidence was used to support the prosecution of a criminal matter (online: http://nydailyrecord.com/2017/04/28/legal-loop-fitbit-data-other-digital-evidence-used-by-prosecution-in-murder-case/.) In that case, a wealth of digital data was used by the prosecution to refute the defendant’s version of the events leading to his wife’s death, including cell phone records, computer data, text messages, information from Facebook, and his wife’s Fitbit data.

More recently, data from the iPhone Health App was used in court in Germany as part of a murder prosecution. In this case, the defendant was accused of murdering a medical student. The investigators were able to access his phone and obtain data from its Health App. Data collected by that app includes the number of steps taken, nutrition and sleep patterns, and a range of body measurements including heart rate. The app also provides geolocation data regarding the movement of the phone.

The data collected from the app corresponded to the prosecution’s theory of the case and its timeline of events leading up to and following the murder. The geolocation data provided evidence of the defendant’s movements throughout the evening in question, while the heart rate data indicated two different periods of “strenuous activity” which the app suggested involved the climbing of stairs.

A police investigator who was of similar size to the defendant recreated the events as it was believed they occurred and then compared the investigator’s Health App data to the defendant’s. The prosecution alleged that the similarities in the data indicated that the defendant was likely dragging the victim’s body down the stairs when his app indicated he was engaged in strenuous activity involving the climbing of stairs, thus supporting their theory of the case.

Once again digital data gleaned from a mobile device was used in court in an attempt to convict an accused rapist and murderer. The use of digital data for this purpose is something most people would likely agree with. However, there is a very real potential for abuse of the data our devices are collecting about us, as the Black Mirror series points out. Where we, as a society, choose to draw that line remains to be seen.

In the meantime, astute lawyers will educate themselves about the types of data available to them and will likewise be cognizant of the ways that data can be used in the courtroom to forward their client’s interests. In 2018, anything less would arguably be malpractice.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at [email protected].