Sui Generis--a New York law blog

2020 Holiday Gift Guide for Lawyers

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

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2020 Holiday Gift Guide for Lawyers

2020 has been quite the year, and it’s been anything but easy. No doubt, you’re ready for this unprecedented year to end so that we can look forward to a new, hopefully much less eventful 2021. In the meantime, the holidays are upon us and you may still have presents to buy.

If so, you’re in luck! I’ve pulled together a last-minute holiday gift guide for lawyers, and I have no doubt that one of the gifts below is sure to be a good fit for the lawyer on your list. This list is drawn from products that I own and services that I use, all of which I highly recommend. It includes gift ideas that will help lawyers who are working remotely find joy, productivity, and peace in their homes. Hopefully one or two will be a good fit for your own wish list or for the lawyer in your life.

First up, Amazon subscription boxes. You may not be aware that Amazon offers access to hundreds of subscription box services. These are a great way to give someone a gift that they can look forward to each month. Amazon has over 400 gift box services available in countless categories, so no matter what you’re looking for, there’s bound to be one that’s a good fit.

A meditation app is another good subscription option. Two of the most popular meditation apps that you might want to consider are Calm and Headspace. Both offer thousands of different meditations such as anxiety-reducing meditations or meditations that help you fall sleep. There are also meditation series offered on both apps that focus on a variety of goals including encouraging gratitude, increasing self esteem, or improving concentration. You can purchase annual gift subscriptions for either app for a little over $50.

If you don’t already have a pair of Apple AirPods, I highly recommend them. I’m a huge fan of mine. They’re great for taking calls and walking around your office unencumbered. They’re also perfect for using during Zoom meetings - something we’re all doing a lot these days. AirPods aren’t cheap, but they’re well worth the price. They start at $199 for a pair with a wireless charging case, or you can choose to go with a wired charging case for $159.

Last but not least, there’s the Wine.com StewardShip program. For $49 a year, members of this program get free shipping for the entire year. So wine and other spirits can be delivered right to your door, at no additional cost to you. I really like Wine.com, since it’s a great site for exploring new wines and spirits, and they offer free recorded wine tastings, wine tasting sets, free online wine and spirit guides, and much more. With the pandemic surging and lockdowns looming, it’s just one more way to get a little holiday cheer delivered right to your door without leaving your house.

So those are a few of my top gift recommendations for the 2020 holiday season. I hope some of these last-minute gift ideas are a good fit for the lawyer on your list. And, now that you have plenty of ideas to choose from, what are you waiting for? Start shopping today and your holiday gift shopping will be done before you know it!

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]

NYC Bar On the Ethics Lawyers Appearing in Court During the Pandemic

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

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NYC Bar On the Ethics Lawyers Appearing in Court During the Pandemic

In October, I wrote about an opinion issued by the New York State Bar that addressed the ethical issues presented when a lawyer sought to withdraw as counsel due to health-related concerns regarding in-person court appearances during the pandemic. As I reported in my article, the New York State Bar Association’s Committee on Professional Ethics concluded that an attorney may indeed withdraw from representation due to COVID19-related concerns if the attorney obtains permission from the court.

Now, less than two months later, another New York ethics committee has weighed in on a similar issue. In Formal Opinion 2020-5, the Professional Ethics Committee of the New York City Bar Association considered the following question: “Whether a lawyer’s health concerns regarding appearing in court in person during a pandemic can create a conflict of interest requiring withdrawal from the representation.”

At the outset, the Committee noted that the existence of the pandemic, in and of itself, provides insufficient grounds to permit an attorney to withdraw from representation. The committee explained that there are often options to appear virtually on behalf of a client and even when in-person appearances are mandated, courts are often able to “implement adequate health and safety protocols under which a reasonable lawyer would feel comfortable appearing in person.”

That being said, the Committee acknowledged that as a result of the severity of the pandemic, some lawyers could have a reasonable fear for their health and safety, which could in turn create a conflict of interest that would compromise their ability to effectively represent their clients. The Committee explained that health concerns could cause attorneys to: 1) request unnecessary adjournments to the detriment of their clients , 2) refrain from filing motions in an effort to avoid an in-person court appearance, or 3) take other actions the case in order to move the case along that could have negative consequences for their clients.

The Committee noted that in many cases, either the safety precautions taken by courts or the virtual appearance options offered will be sufficient to assuage an attorney. However, according to the Committee “this must be evaluated on a case-by-case basis and will depend on the risks to the lawyer and the reasonably available options for continuing with the representation” and that in some cases “a lawyer who may suffer from preexisting health conditions or live in a household with others who are susceptible to infection could reasonably believe that the heightened fear of infection would affect the lawyer’s ability to competently and diligently represent the client.”

Should that be the case, then a legitimate conflict of interest may exist. According to the Committee, if that conflict is not otherwise waivable and legitimate health concerns make it “impossible for the lawyer to provide competent and diligent representation,” then the lawyer may withdraw as counsel. Of note is that while the Committee acknowledged that it reached a conclusion similar to that of the New York State Bar Association, it did so for different reasons: “(T)his Opinion analyzes whether a lawyer must withdraw from the representation based a conflict of interest whereas Opinion 1203 analyzes permissive withdrawal under Rule 1.16(c).” 

So if you’re a New York lawyer who is understandably concerned about in-person court appearances at a time when COVID-19 continues to surge across the state, you now have two different ethics opinions in your corner should you decide that withdrawal from representation is the best path forward. Notably, many courts have already canceled most in-court appearances, and other may soon follow, so this may be a moot issue. But in the event it’s not, you’ve now got two paths available to you that have received the ethical stamp of approval.

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: Remote Working, Virtual Conferences, and Cloud Computing

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 November:

• 2020 in review: Legal software for working remotely - ABA Journal (November 2020)
• Surveys Say: COVID-19 Pushed Law Firms Further Into The Cloud - Above the Law (November 2020)
• Most Virtual Conferences Suck, But Not This One! - Above the Law (November 2020)
• ABA Survey Results: How Lawyers Are Communicating Online in 2020 - MyCase Blog (November 2020)
• 2020 ILTA Legal Technology Survey: Remote Working and the Shift to Cloud-based Legal Software - MyCase Blog (November 2020)
• 3 Reasons Lawyers Should Be Grateful in 2020 - MyCase Blog (November 2020)
• Round Up: The Top Remote Working Software for Law Firms in 2020 - MyCase Blog (December 2020)
• Top Holiday Gifts for Lawyers Working Remotely -  MyCase Blog (December 2020)

Case shows why lawyers must encrypt e-communications

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

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Case shows why lawyers must encrypt e-communications

Whenever your firm’s employees work remotely during the pandemic (and beyond), electronic communications will increase out of necessity. If those communications aren’t encrypted, you run the risk of inadvertently disclosing confidential client data. That’s why it’s imperative that your firm takes steps to encrypt online communications if it isn’t already doing so. Whether you decide to encrypt emails on a case-by-case basis or use the secure online communications portals that are often built into law practice management software, one way or another, your firm needs to ensure that it’s protecting all confidential electronic communications.

Doing so will not only safeguard confidential information, it may also shield your firm from liability in the event that a cyber-scam that results in a loss to your client. Case in point: Otto v. Caltrow Law, PLLC, No. 19-0361. In this case, the Supreme Court of Appeals of West Virginia considered whether a law firm was liable for a cyber-scam that resulted in a $266,000 loss to its client when funds for a real estate transaction were mistakenly wired to scammers.

In this case, an unidentified scammer impersonated the Otto’s real estate agent in an email conversation and as a result, the Ottos, who were clients of the Caltrow firm, wired the scammer $266,069.22. This money was never recovered.

The Caltrow firm used encrypted email to communicate with the Otto’s realtor regarding wiring instructions, and never communicated directly with the Ottos. The realtor, the real estate broker, and the Ottos, however, subsequently discussed the wiring instructions via unencrypted email. It was that unencrypted email chain that the scammers hacked into. They then subsequently spoofed the real estate agent in emails sent to the Ottos regarding the purported new wiring instructions. As a result of those spoofed emails, the Ottos wired the money to the scammer’s bank account.

The Ottos subsequently filed suit against the real estate broker, the realtor, and the Caltrow firm in an attempt to  recover their losses. They later settled with the broker and realtor, and then amended their claims against the Caltrow firm and alleged that the firm breached duties owed to them as follows:

1. Prior to wiring any funds, [Petitioners] should have been personally contacted by [Respondent], or, at a minimum, [Petitioners] should have been advised and alerted by [Respondent] to call her office and confirm the instructions.
2. b) Although [Respondent] appeared to have used an encrypted email, [Respondent], knowing full well that wiring instructions were to be communicated via email, should have taken any precautions to determine if [the realtor's] . . . and the [Petitioners’] emails were encrypted and otherwise secured.
3. c) [Respondent] should have informed the [Petitioners] as to the prevalence of wire fraud schemes, and that if an email seemed suspicious, they should take no action until they confirmed, by independent means, that the communication was legitimate.

The Court disagreed with their assertions. First, the Court determined that when the firm encrypted the email regarding the wire instructions, it exercised reasonable care by taking steps to protect that information: “The contents of that email were highly sensitive and Respondent reasonably expected the information to remain confidential by use of encryption technology. Indeed, Petitioners concede that Respondent was not responsible for the hack because they pled in their amended complaint that ‘the money was diverted when the hacker was able to intervene in email correspondences between' (the realtor) and Coldwell.”

Next the Court turned to the Otto’s assertion that the firm failed to warn them about the risks associated with potential phishing and spoofing email schemes. The Court likewise dismissed that claim, concluding that the plaintiffs failed to provide sufficient evidence to support their allegation that the firm breached the applicable standard of care owed to the plaintiffs under West Virginia law.

In other words, the firm’s use of encrypted email is what saved the day in this case and precluded liability. What steps does your firm take to ensure that confidential client data is sufficiently protected from prying eyes? Does your firm have secure communication protocols, such as online communication portals, in place? If not, what better time to implement them than now, as you plan for a successful 2021? Not only is it the ethical thing to do, it’s the smart thing to do -  so what are you waiting for?

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]

Can the pandemic provide an excuse for sanctionable conduct?

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

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As we enter our ninth month of the pandemic and COVID-19 numbers are surging across the country, lawyers and judges alike are bracing for newfound full or partial shutdowns. If and when the shutdowns occur, our court systems will undoubtedly slow down, creating a bottleneck effect, just like what happened in the spring. And when that occurs, litigators run the risk of losing track of, or access to, case-related court filings.

If this scenario should come to pass, and a lawyer’s access to court records is limited because of shelter-in-place orders, are sanctions appropriate if a lawyer inadvertently misstates the record on appeal due to the inaccessibility of that information? This very question was at issue in a recent case from the United States Court of Appeals for the Sixth Circuit, Saenz v. Kohl’s Department Stores, No. 20157. 

In this personal injury case, which arose from a slip and fall in a department store, the plaintiff appealed a summary judgment grant in favor of the defendant. On appeal, the crux the plaintiff’s argument was based on an interrogatory answer that was never signed nor included as part of the record on appeal.

After upholding the lower court’s grant of summary judgment, the Court of Appeals considered Kohl’s motion for sanctions against the plaintiff and her appellate counsel. The Court explained that, “Kohl’s has moved for sanctions, arguing that this appeal is frivolous because ‘Saenz’s entire appeal is premised on an interrogatory answer’ that 'is not part of the District Court’s record.’”

After declining to impose sanctions on the plaintiff since there was no evidence that she harbored an improper motive in bringing the appeal, the court then turned to the motion for sanctions against her appellate attorney. The Court explained that sanctions against counsel are appropriate where “an attorney has engaged in some sort of conduct that, from an objective standpoint, ‘falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party.’”

After reviewing the attorney’s conduct in the case, the Court acknowledged that he repeatedly referred to the unsigned interrogatories even after it was pointed out to him that they were never signed and weren’t part of the record on appeal, and that such conduct was “unprofessional and serious enough to meet the standard for imposing sanctions.”

Nevertheless, the Court declined to impose sanctions given the unprecedented effects of the pandemic-related stay-at-home orders. The Court determined that it would exercise its discretion “‘not to sanction’ counsel…No doubt, it was careless to quote the unsigned Interrogatory 9 and then appeal based on that error. But we appreciate that these are trying times…Michigan stay-at-home order due to COVID-19 was in effect at the time Saenz filed this appeal, which may have limited her attorney’s access to the record. In these circumstances, we choose to give him the benefit of the doubt.”

This case is one more example of the extraordinary impact that the pandemic has had on the world, our country, and our court system. Although there are vaccines on the horizon, their widespread implementation is, at best, months away. For now, our only option is to do our best in the face of uncertainty, and, like the Sixth Circuit Court of Appeals judges did, consider cutting others a break when their best just might not be good enough. In the meantime, stay safe everyone, and don’t be too hard on yourselves - or those around 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 [email protected]

Should you copy 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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Should You Copy Clients On Emails to Opposing Counsel?

As a result of the pandemic lawyers are working remotely now more than ever before. This means that out of necessity, in-person meetings are far less common during the pandemic, and lawyers are increasingly relying on email to communicate with clients and other attorneys.

Of course, email is not an ideal way to communicate when confidential information is being shared. Not only is email inherently unsecure, since it’s like sending a postcard written in pencil through the post office, it can also present a host of different ethical issues. The Florida Bar Assistant ethics counsel, Joy a Bruner, recently addressed one such issue when she wrote about the ethical issues that are presented when you copy clients in on emails to opposing counsel (online: https://www.floridabar.org/the-florida-bar-news/should-you-copy-your-client-on-emails-to-opposing-counsel/).

Specifically, the issue she addressed was whether a lawyer should “‘cc’ or ‘bcc’ (a) client on the email or would it be better to separately forward a copy of the email to (the) client?” 

She explained that while copying a client in on an email may seem innocuous at first glance, it can actually present a very real ethical dilemma, namely that your client may inadvertently respond in a way that compromises confidentiality: “The danger in copying or blind copying a client on an email to opposing counsel is that the client may include opposing counsel on the client’s reply by using ‘reply all' either by mistake or on purpose. This can result in confidential information being disclosed and, depending on the information and circumstances, a waiver of privilege.”

Next she outlined a safer alternative that allows you to keep your client informed while also ensuring that confidentiality and privilege are preserved: “The better course of action is to separately forward the emails to the client. That way opposing counsel is not included in the list of recipients of the forwarded email and it reduces the risk that the client may disclose confidential information that may harm the client’s interests.”

She then turned to a related issue that also can trigger ethical issues: when an attorney receives an email wherein opposing counsel copies in their client. She explained that in that situation, the email does not operate as consent for the attorney who received it to then include the represented person in their response to the email. 

Instead, permission must be obtained from opposing counsel prior to doing so in order to avoid violating Rule 4-4.2, which provides that a lawyer cannot communicate about a matter with someone the lawyer knows to be represented by another lawyer in the matter: “If you are on the receiving end of an email that includes the opposing lawyer’s client on the email, you cannot include the opposing lawyer’s client on the email unless you have opposing counsel’s permission under Rule 4-4.2.”

The bottom line: email with caution. Not only is it an outdated mode of communication now that alternate and more secure methods are available, careless use of it can also lead to inadvertent ethical violations. So if you insist on continuing to use antiquated email, do so with care.

In the alternative, why not switch to a more secure and modern method of communicating with clients such as the online client portals built into some legal software programs? Since remote work is likely to be part of our daily lives for the foreseeable future, what better time than now to revisit how you communicate electronically with clients?

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]

Does Facebook have an obligation to prevent murder?

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

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Does Facebook Have an Obligation to Prevent Murder?

These days, we spend a lot of time online - probably more than we should. And for most of us, especially during the pandemic, a good percentage of our after work downtime occurs on social networks. We share (and sometimes overshare) our ups and downs, family celebrations, and in recent months, political opinions. Social media platforms have become a gathering place where we connect, interact, and blow off steam. For better or for worse, social media has become entrenched in our lives.

Now that we share so much information on social media, what happens when someone threatens to commit a crime on a social network? Do the companies that own social media sites have an obligation to scan their sites for these types of threats? If a threat is discovered or reported to them, must they act to prevent it from occurring? Do they have to contact the authorities and report the incident? If they fail to ascertain that the threat was made and/or fail take steps to prevent the threat from becoming reality, are they liable if the person who posted the threat carries it out and injures another?

The Court of Appeals of Ohio recently considered this every issue in Godwin v. Facebook, Inc., 2020-Ohio-4834 (Ohio Ct. App. Oct. 8, 2020).  Specifically, the question before the Court was whether civil liability could be imposed against Facebook for failing to report the commission of a felony offense in an effort to prevent it from occurring.

The crime at issue in this case was murder, which arose from the following facts. Steve Stephens was accused of murdering Robert Godwin, Sr., a person who was a stranger to him and whom he chose at random. On the day of the murder Stephens posted the following somewhat cryptic message to Facebook: “FB my life for the pass year has really been fuck up!!! lost everything ever had due to gambling at the Cleveland Jack casino and Erie casino…I not going to go into details but I’m at my breaking point I’m really on some murder shit…FB you have 4 minutes to tell me why I shouldn’t be on deathrow!!!! dead serious #teamdeathrow.” Then, within minutes of publishing the post to Facebook, he murdered the victim.

The victim’s estate filed suit, alleging, among other things, that Facebook “fail(ed) to warn Robert Godwin of Stephens’s dangerous propensity of which Facebook was aware through its data-mining practices, which is the underlying negligence theory upon which the wrongful death and survivorship claims arise…”

At the outset, the Court explained that because Facebook is a “standard commercial business” it only owed a duty to the victim if a there was “special relationship” with him since “businesses do not owe abstract duties to everyone in the world.”

The Court then turned to ascertaining whether a “special relationship” existed, noting that the issue to be determined was whether where Facebook had “taken charge” of a person whom “it knew or should have known was likely to harm to others if not controlled.”

After reviewing the facts of the case at hand, the Court determined that Facebook did not owe a duty to the victim since a “special relationship” between Facebook and the victim simply did not exist:

“At the minimum the duty to act in this case requires an existing relationship between the defendant and the third person over whom ‘charge’ is asserted. Godwin has not cited any authority for the proposition that a social media company ‘takes charge’ of its users to the same extent that a medical or mental health professional takes charge of her patient or a parole or probation officer takes charge of her probationer for the purposes of expanding the theory of liability. Although the line between a contractual, business-consumer relationship and a physician-patient relationship may at one point overlap, this case does not present such a question. The complaint is devoid of any allegations of fact that, if proven, would establish the requisite element of Facebook taking ‘charge’ of its users.”

Then, after considering the additional claims made by the plaintiff, the Court concluded that Facebook was not civilly liable for the victim’s murder.

I wasn’t particularly surprised by this holding, were you? It’s difficult to envision a scenario under which a plaintiff with a similar claim could sufficiently establish either duty or foreseeability, especially given the vague assertions of violence in this case and the fact that the crime occurred nearly immediately after the post went live on Facebook. Even so, it’s an interesting issue, and is one more example of how the blurred the line between online and offline actions has become.

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: Artificial Intelligence, Virtual Conferences, Surveys 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 October:

• How to make better decisions with litigation analytics software - ABA Journal (October 2020)
• A Virtual Legal Conference Success: Lawyer Mom Owner Virtual Summit 2020  - Above the Law (October 2020)
• The Ethics Of Secure Communication During The Pandemic And Beyond - Above the Law (October 2020)
• Virtual Legal Conferences: Can You Really ‘Connect’ Online? - Above the Law (November 2020)
• Survey Results: Lawyer Demographics in 2020 - MyCase Blog (October 2020)
• Survey Results: Lawyers and Legal Technology in 2020  - MyCase Blog  (October 2020)
• Survey Results: 2020 Lawyer Well-Being Statistics - MyCase Blog (October 2020)
• ABA Survey Results: Lawyers and Cloud Computing in 2020  - MyCase Blog (October 2020)

New York on withdrawing as counsel due to COVID-related fears

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

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New York on withdrawing as counsel due to COVID-related fears

In New York, court appearances have been sharply curtailed at times due to the pandemic. Online court appearances have become commonplace out of necessity and have been surprisingly well-received, especially by some members of the judiciary.

That being said, in-person court appearances are sometimes still required, even as COVID-19 numbers are on the rise. For lawyers who are uncomfortable with the safety and security measures being taken by courts but are nevertheless required to appear in person, what are you options?

That very issue was addressed in early October by the New York State Bar Association’s Committee on Professional Ethics in Opinion 1203. In this opinion, an attorney who was representing a client in Immigration Court sought permission to withdraw from representation due to the attorney’s health concerns relating to in-person court appearances. The issue considered by the Committee in this case was whether “an attorney who believes that continued representation of a client before a tribunal endangers the attorney’s health (may) withdraw from that representation?”

In reaching its determination, the Committee noted that Rule 1.16 was controlling. The Committee explained that Rule 1.16(b) permits withdrawal when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.” According to the Committee, when assessing whether representation has  become too “difficult,” the standard to be applied is a flexible one and the inquiry should center around “the ways in which the inquirer’s fear of contracting COVID-19 could impede effective representation.”

Next, the Committee acknowledged that under the Rule, there were other permissible circumstances for withdrawal from a case, but they only applied if withdrawing would not have a materially adverse effect on the interests of the client or if the client consents.

Then the Committee turned to the situation at hand and explained that in order to withdraw from representation in Immigration Court, Rule 1.16 (d) required that the attorney obtain “permission for withdrawal from employment (since it) is required by the rules of (the) tribunal.”

The Committee explained that the issues that the Court would need to consider prior to granting the inquirer’s request would be whether it would be difficult for the attorney to provide effective representation due to fear of contracting COVID-19. The attorney’s trepidation could impact effective representation if the lawyer: 1) was reluctant to meet with the client face-to-face, 2) agreed to a disposition that would prematurely end the proceeding in order to reduce the amount of time spent in court, or 3) rushed through a hearing and failed to call witnesses to testify on the client’s behalf or waived cross-examination of government witnesses in order to shorten the hearing and thus time spent in court. The Committee opined that “(t)he standard required for Rule 1.16(d) permissive withdrawal would be met by any of these influences, or like influences, to which the inquirer would be susceptible.”

Accordingly, the Committee determined that an “attorney may withdraw from representation, with the permission of the Immigration Court, based on fear of contracting COVID-19 as a result of in-person appearances in the proceeding, where such fear renders it difficult for the attorney to carry out the representation effectively.” Upon doing so, the attorney would need to “take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including by giving reasonable notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly repaying any part of a fee paid in advance that has not been earned and complying with applicable laws and rules.”

If you’re a New York attorney and are concerned about the risks associated with returning to in-person court appearances, this opinion should provide you with some solace. Of course, there is a very real possibility that this will soon be a non-issue since in-person court appearances may once again be cancelled for an indeterminate period of time. After all, the pandemic shows no sign of abating any time soon, and the winter months could bring with them a surge in cases above and beyond what we saw in the spring. Only time will tell, but in the meantime, stay safe out 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 [email protected]

Michigan Bar weighs in on technology competence for lawyers

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

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Michigan Bar weighs in on technology competence for lawyers

Technology competence has been an ethical requirement for lawyers in many jurisdictions for years now. Specifically, ethics committees have generally required that lawyers take steps to ensure that they have a sufficient understanding of the technologies available to them iso that they can make educated decisions about when and how to use the technologies in their law firms.

Of note is that this ethical obligation is all the more important in 2020 as many lawyers routinely work remotely due to COVID-19 restrictions. Because lawyers are regularly relying on technologies such as mobile and cloud-based software to facilitate remote work, it's imperative that they have a sufficient understanding of the tools that they're using and are ensuring that they’re being used in a secure manner that protects confidential client information.

The good news is that technology competence is now a requirement in the majority of jurisdictions, and a few times each year a new state joins the club and adopts the ethical requirement of technology competence for lawyers in its jurisdiction. One of the most recent jurisdictions to do so was Michigan. Earlier this year the Michigan State Bar Association issued Ethics Opinion RI-381, which established that the technology competence requirement applied to Michigan lawyers.

In adopting this ethical requirement, the Michigan Bar mirrored the American Bar Association’s approach and added the following language to the comment that follows MRPC 1.1: “Maintaining Competence. To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including the knowledge and skills regarding existing and developing technology that are reasonably necessary to provide competent representation for the client in a particular matter. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances. (emphasis added).”

The Committee explained that the duty of technology competence means that lawyers “have ethical obligations to understand technology, including cybersecurity, take reasonable steps to implement cybersecurity measures, supervise lawyer and other firm personnel to ensure compliance with duties relating to cybersecurity, and timely notify clients in the event of a material data breach.”

According to the Committee, the technology competence requirement centers around safeguarding electronically stored information (ESI), supervising the competence of law firm employees, and understanding and responding to cybersecurity threats.

First, the Committee explained that the technology competence duty does not require absolute security. Instead, taking reasonable steps to ensure security are what’s required: “A lawyer cannot reasonably be expected to be a guarantor of client data security…A lawyer must, however, exercise reasonable care in safeguarding client ESI…To discharge that duty, a lawyer must formulate, adopt, and follow policies and procedures, appropriate to the lawyer’s field(s) of practice, regarding the use, transmission, and storage of client ESI. In addition, a lawyer must evaluate whether specific cybersecurity measures are appropriate for the representation of a client in a particular matter.”

Importantly, the Committee emphasized that the definition of what constitutes reasonable care will necessarily evolve over time and change as technology advances: “As with substantive law, what may be considered ‘reasonable’ cybersecurity changes over time…Therefore, the duty to exercise reasonable care includes an obligation to assess periodically whether the lawyer’s policies and procedures keep pace with evolving technology risks.”

Of particular note now that lawyers regularly work remotely is that the Committee adopted the ABA’s standard regarding secure communication with clients as set forth in ABA Formal Opinion 477R. Specifically, the Committee opined that unencrypted email is often insufficient for sharing confidential information with clients and that more secure methods, including encrypted online client communication portals, may be required: “What constitutes ‘reasonable measures' in fulfilling the duty to exercise reasonable care regarding client ESI depends on the circumstances, including the degree of sensitivity of the information to the client, potential threats, the risk of harm to the client in the event of unauthorized disclosure…and the availability of protective technology….As noted in ABA Formal Opinion 477R…‘the use of unencrypted routine email generally remains an acceptable method of lawyer-client communication,’ but ‘particularly strong protective measures, like encryption, are warranted in some circumstances.’”

Finally, regarding potential data breaches, the Committee adopted the ABA’s standard for client notification, and concluded that “When a data breach occurs involving, or having a substantial likelihood of involving, material client information, lawyers have a duty to notify clients of the breach and to take other reasonable steps consistent with their obligations under these Model Rules.”

So with Michigan adopting the technology competence requirement, that’s one more state down, 22 more to go. If you’re not sure where your state falls, you can find an updated list of states that already require lawyers to have technology competence here.

 

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]