Sui Generis--a New York law blog

Surf Smarter: 10 Extensions to Upgrade Your Web Browser

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

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Surf Smarter: 10 Extensions to Upgrade Your Web Browser

Like it or not, you probably spend several hours each day online. Nowadays, the internet serves as our lifeline, offering immediate access to whatever we need, whenever we need it. Whether on your smartphone, tablet, laptop, or desktop, the online world offers a window into the world of limitless information.

We've come to rely on—and often take for granted—the tool that grants us instant access to cyberspace: the web browser. While not necessarily an exciting piece of technology, it’s nevertheless a reliable workhorse that we use daily. Browsers are highly functional on their own, but adding browser extensions can make your online experience both more productive and secure.

Browser extensions are typically available regardless of the tool you’re using, and many are accessible across multiple platforms. To add them to your browser you need to locate the extension “store,” usually located within your browser’s settings. The store includes categorized add-ons, and you can also search for specific ones. 

I take advantage of a host of different extensions that enhance and improve my online experience and regularly add new ones as I discover them. Below you’ll find my top ten most-used extensions, along with an explanation of how each one adds to my daily workflow.

AdBlock: This browser extension serves as a digital shield, filtering out intrusive advertisements from web pages and enhancing your experience by reducing page load times and conserving bandwidth.

ChatGPT for Google: This add-on integrates GPT-based conversational AI into Google search, providing you with enhanced search capabilities, contextual assistance, and even real-time language translation, making Google's ecosystem more interactive and intuitive.

Consent-o-Matic: This extension automates the often cumbersome process of managing GDPR cookie consent forms across various websites, and streamlines your navigation by automatically selecting or declining cookies based on your preferences.

DuckDuckGo: More than just a search engine, this extension offers a comprehensive privacy solution by blocking third-party trackers, encrypting connections, and providing a private search functionality that doesn't store your data.

Grammarly: Grammarly is a comprehensive writing assistant that scrutinizes your text for grammatical errors, offers stylistic improvements, and even employs algorithms to detect the tone and suggest revisions to enhance the readability of your writing.

PayPal Honey: This shopping assistant extension goes beyond finding and applying coupon codes at checkout; it's integrated with PayPal to offer a seamless transaction experience, and even provides price tracking and alerts.

PrintFriendly: This extension transforms cluttered web pages into clean, print-ready versions by stripping away ads, navigation bars, and other non-essential elements, making it easier to print the page or save it as a PDF.

Search the current site: This browser extension streamlines your web navigation by enabling focused, site-specific search queries directly from your browser's toolbar, eliminating the need to navigate through a website's own (often cumbersome) search function or manually search a page by entering site:URL into a search engine.

Trim: This extension enriches your streaming experience by embedding IMDb, Rotten Tomatoes, and Metacritic ratings directly into Netflix, Amazon Prime Video, and other streaming services, enabling you to make informed choices about what to watch next.

WOT (Web of Trust): This extension serves as a real-time sentinel by evaluating the reputation of websites you visit and warning you about potential security risks, scams, or phishing attempts, based on community reviews and machine learning algorithms.

Install any or all of these extensions and reap the rewards of a more streamlined, ad-free, and data-rich browsing experience. Gone are the days of unsafe websites, paying full price, or blindly choosing movies. Instead, you’ll be armed with grammatically correct documents, instantaneous ChatGPT search results, and the best online deals in town. What more could a sophisticated internet traveler ask for?

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].

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].

Unlocking the Potential of ChatGPT Plugins in Your Law Practice

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

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Unlocking the Potential of ChatGPT Plugins in Your Law Practice

The legal landscape is constantly evolving, and the advent of AI technologies has significantly accelerated the rate of change. One notable technology that has been making waves lately is ChatGPT, an advanced AI chatbot developed by OpenAI. 

As I discuss in this article, while this cutting-edge tool has the potential to significantly impact how legal work gets done, it must be used with care. Below you’ll learn what ChatGPT is, its benefits and risks, and the basics of ChatGPT plugins. I’ll also highlight the top 10 ChatGPT plugins that can be particularly beneficial for legal professionals.

What is ChatGPT and Why Does It Matter for Lawyers?

ChatGPT is a generative AI conversational chatbot that understands natural language and generates responses to queries based on context awareness. It is designed to streamline communication, research, and information processing. Because of these features, it can be a valuable tool for lawyers and has the potential to dramatically impact the practice of law, saving time and money. 

However, despite the many benefits generative AI offers legal professionals, there are also drawbacks to be aware of. For starters, its database is limited to a dataset containing information through 2021. As a result, responses are sometimes based on outdated information.

Additionally, this technology is not a stand-in for legal expertise. It does not replace legal knowledge or negate the ethical requirement of basic competence. A careful review of all work produced using generative AI tools will always be required.

Understanding Plugins and how they differ from Browser Extensions

ChatGPT is a powerful tool when used as a standalone chatbot, but its functionality can be enhanced using browser extensions, which I wrote about in April, or plugins, which I cover in this article.

Both browser extensions and plugins add functionality to a software application, but they differ in their scope and application. A browser extension is a small software module that customizes a web browser. A plugin is a software component that adds a specific feature to an existing software application, enhancing its capabilities. 

Recently, ChatGPT released plugins, which are available only to ChatGPT Plus subscribers. Many of the plugins solve the date limitation issue and can be used in conjunction with a ChatGPT conversation to provide further insight, context, and current information. Plugins are available in many different categories including travel, shopping, search, and data summarization and analysis. 

Top 10 ChatGPT Plugins for Lawyers

I’ve had access to plugins for a few weeks now and have experimented with many different types. After scouring through the ChatGPT plugins store, I’ve identified the top 10 plugins that I believe will be particularly useful for legal professionals:

1. Prompt Perfect: This plugin helps users draft “perfect prompts” for ChatGPT making it easier to obtain specific and informative answers from the AI chatbot.
2. Wolfram: This plugin provides access to advanced computations, math, and real-time data, making it useful for lawyers dealing with complex cases that require data analysis.
3. Zapier: This plugin creates a bridge across software tools and allows users to interact with over 5,000 different work apps, including Gmail, MS Outlook, and Slack, streamlining workflows and increasing productivity.
4. Link Reader: This plugin can analyze and process content from all kinds of links, including webpages, PDFs, images, and more, making it easier for lawyers to access and understand current information from a variety of sources.
5. Block Atlas: This tool is great for litigators and other types of practitioners and enables you to easily search and analyze US census data.
6. AskYourPDF: This AI-based chat system allows users to interact with PDF documents efficiently, allowing lawyers to extract content from PDF files quickly and generate summaries, analyses, and more.
7. FiscalNote: This plugin provides real-time datasets of legal, political, and regulatory data and information. It offers a comprehensive platform that tracks legislation, regulations, and policy issues across various levels of government.
8. KeyMate.AI Search: With this plugin, ChatGPT can be used to search the internet for the latest information, addressing the problem of outdated data.
9. Web Pilot: Using this plugin, ChatGPT can access and interact with web pages based on one or more URLs and generates summaries, overviews, translations, and other information from web page content.
10. World News: This plugin provides the latest news around the world, keeping lawyers updated on current events that may impact their practice.

Use ChatGPT Plugins Responsibly

To fully harness the potential of ChatGPT and its plugins, it’s important to prioritize ethical considerations when using these AI tools. First and foremost, refrain from sharing confidential client data unless you are confident that your queries will be protected and will remain private. Also, keep date and accuracy limitations in mind, and remember that even when GPT-powered tools are incorporated into legal-specific software, thus reducing the number of hallucinations, the potential for error nevertheless remains. Until this technology improves significantly, you will have to carefully review all output for errors. 

No matter how you look at it, ChatGPT and its plugins offer a wealth of opportunities for lawyers, allowing them to streamline their work processes, enhance productivity, and stay updated on current events. Through the incorporation of these innovative tools into their daily routine, legal professionals can effectively harness the power of AI technology to the benefit of their practice and their clients by carefully balancing the spirit of innovation and the obligations of professional responsibility. 

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software, an AffiniPay company. 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].

AI at Your Fingertips: The Best ChatGPT Add-ons and Extensions for Lawyers

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

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AI at Your Fingertips: The Best ChatGPT Add-ons and Extensions for Lawyers

The technology landscape is evolving rapidly, and turning a blind eye is no longer an option for lawyers seeking to stay competitive. AI-based technologies are on the cusp of revolutionary change, as evidenced by the release of GPT-4 in mid-March. This groundbreaking advancement in AI technology is significant because it enables unparalleled natural language understanding, generation, and context awareness.

In previous articles, I explained the significance of generative AI chatbots like ChatGPT and Bing chat, which are advanced AI language models designed to streamline communication, research, and information processing. The rapid advancements in these AI technologies have significantly enhanced the potential for innovative applications in the legal industry and offer boundless possibilities for lawyers seeking to increase efficiency and improve decision-making.

The release of GPT-4 is just the beginning. As this technology is incorporated into Microsoft Office, Google Workspace, and legal-specific applications, the impact of generative AI will increase exponentially. 

In the meantime, there are browser extensions and other types of add-ons that make it easier than ever to incorporate ChatGPT capabilities into your daily workflows. 

Currently, the two most popular AI chatbots are ChatGPT and Bing Chat. ChatGPT is available as a standalone chatbot, and a free version is available. After test-driving it, you may want to sign up for ChatGPT Plus, which costs $20/month and offers consistent uptime and prioritized access to new features, including access to GPT4. To access Bing’s chatbot, you’ll need to sign up for the waiting list, and once you’re granted access, it is available here.

Below you’ll find the ChatGPT add-ons and browser extensions that I’ve found to be the most beneficial thus far. Many others are available, so no matter your needs, you’re sure to find an add-on that meets them in your browser’s app store.

• Bing Chat for All Browsers: In theory, Bing chat can only be accessed using Microsoft’s Edge browser. This browser extension provides access via a link in your toolbar. You can also access it by creating a bookmark to the link provided above.
• ChatGPT for Gmail: This browser extension adds ChatGPT to Gmail, so that when you open an email, it will scan the email and if you activate it, draft a suggested reply email. 
• ChatGPT Prompt Genius: With this extension, you’ll have access to ChatGPT prompts created by other users. This saves time and allows you to take advantage of curated requests designed to elicit specific responses, such as language translation or document editing.
• WebchatGPT: Currently, ChatGPT isn’t connected to the web, and its database is limited to data up to 2021 only. Webchat GPT is a handy addon that allows you to augment ChatGPT results with real-time web results directly in the ChatGPT interface. You can toggle the web results on or off, giving you more flexibility when researching an issue or seeking information.
• Voice control for ChatGPT: This extension allows you to have verbal conversations with ChatGPT. Simply toggle the microphone on and speak your requests. ChatGPT will then respond by reading aloud the output, but you have the option of silencing the response.

Embracing technology and adapting to change is essential for staying competitive and delivering the best results for your clients. If you’re ready to dive into the potential that ChatGPT offers, these add-ons and browser extensions are great ways to streamline your workflow. By incorporating these innovative tools into your daily routine, you can effectively harness the power of generative AI technology to the benefit of your practice and your clients

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software, an AffiniPay company. 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].

10 Ways Lawyers Can Unlock the Potential of ChatGPT

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

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10 Ways Lawyers Can Unlock the Potential of ChatGPT

You’ve probably seen many recent headlines about ChatGPT, an AI-powered chatbot that generates human-like responses to questions. In my last article, I explained what it is and why it matters to lawyers. In this article, I’ll explore ten ways legal professionals can use ChatGPT in their daily workflow, including for legal research, writing, client service, and more.

For the use cases listed below, you can query either ChatGPT or, if you have access to it, Bing’s new ChatGPT tool . While both chatbots provide helpful answers, Bing’s database is more current. Bing’s results also include citations that allow you to view the website from which the information was obtained.

When using ChatGPT, it’s essential that you already have a sufficient knowledge base regarding the topics you’re enquiring about. With AI chatbots, the goal is to save time and hone in on key issues. These tools cannot replace lawyers or legal expertise; it’s up to you to analyze the responses and revise them accordingly so that they are ultimately accurate and meet your needs.

Remember that no matter the query, you’ll obtain the best results by ensuring that your question is as detailed as possible. Provide sufficient context regarding your role in the scenario, any necessary jurisdictional information, and the desired end product. Then carefully review the output and cross-check it with reliable sources if needed. 

Since the ethical issues presented by this technology haven’t been fully vetted at this early stage, it’s advisable to keep client confidentiality in mind and craft queries that don’t disclose any identifiable client information that may be confidential.

That said, let’s dive in and explore ways that legal professionals can use ChatGPT technology. Below I list ten ways to use ChatGPT as part of your preliminary workflow process across a variety of situations, including legal research, document drafting, trial preparation, law firm management, and more. I tested each concept before including it in this article and found the output provided to be helpful and a great starting point.

1. Summarize a legal concept: You can replace a legal dictionary by requesting that “res ipsa loquitor” or “sui generis” be defined and explained. You can ask for a general definition or limit it to your jurisdiction’s interpretation. You’ll find that the response will be a great starting point for your research.
2. Summarize a case: Provide a case citation and request a summary. The response will consist of a short description of the facts, the issues presented, the court’s ruling, and possibly the significance of the decision.
3. Summarize transcripts: Enter text from a transcript and request a summary. There is a limit to the number of characters you can enter in a single query, so you may have to enter a few pages at a time. 
4. Draft sample agreements like NDAs: ChatGPT will often provide a draft that is a good starting point from which you can craft a robust document.
5. Create questions for direct or cross-examination: Specify the issues unique to your case and use the resulting questions as food for thought when crafting your direct or cross-examination of a witness.
6. Voir dire: Your query should identify the type of case and an issue you’d like to explore and then craft your voir dire using the resulting output.
7. Draft client intake forms: Request that forms be created for specific types of cases, and modify the results to suit your needs.
8. Draft a retainer agreement: Identify key clauses and concepts you’d like included and update the document provided to include information specific to your firm and the client’s case.
9. Letters to clients: Draft opening and closing letters for different cases and then create templates that can be easily replicated across matters.
10. Letters to opposing counsel: Among others, you can request demand or cease and desist letters. The chatbot will provide a working draft that can serve as the basis for a more detailed request specific to your case.

As you can see, ChatGPT has the potential to streamline and improve the quality of your work. Certainly, it doesn’t replace your professional expertise and judgment. Instead, it provides a complementary tool that helps you work more efficiently and effectively. 

Generative AI tools like ChatGPT are the future, and I fully expect that they’ll rapidly become part of the daily workflow of lawyers. You’ll soon find that even if you’re not using this technology, there’s a good chance that your opponents will.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software, an AffiniPay company. 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].

Chat GPT 101 for Lawyers: The Upsides — and Downsides

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

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Chat GPT 101 for Lawyers: The Upsides — and Downsides

There’s a new technology making waves that should be on your radar if it isn’t already: ChatGPT. The reason you should familiarize yourself with it is because all signs indicate that this cutting-edge artificial intelligence (AI) technology and other tools like it will have a significant impact on the practice of law.

ChatGPT is an artificial intelligence language model that generates human-like responses to natural language queries. The reason ChatGPT has made such a splash is because it can understand and respond to a wide range of questions, and then provide near-instantaneous responses, which include generating documents. For example, I asked it to draft a demand letter, an NDA, and an employment agreement, and the documents it created were very workable rough drafts.

It’s available as a standalone chatbot, and there’s a free version available. After test-driving it, you may want to sign up for ChatGPT Plus, which costs $20/month and offers consistent uptime and prioritized access to new features. And, as I discuss below, ChatGPT is already being incorporated into legal technology products, so you’re likely to encounter it one way or another sometime soon.

The reason everyone is talking about ChatGPT is because it holds incredible potential. Its output is fast and often impressive, and when ChatGPT works well, it’s mind-boggling. 

However, its drawbacks are significant. It often makes up facts and then serves them up in a way that sounds completely believable. In one case, I asked it to draft a LinkedIn post about an article in which I was quoted, and it created a quote out of thin air. In another, the response provided seemed on point at first glance but referenced a non-existent California legal ethics provision.

So while the current version undoubtedly provides value to lawyers, it’s important to have working knowledge of the issues being queried along with the ability to weed out false information. That being said, in the very near future the accuracy of its output will undoubtedly increase exponentially as new versions are released. 

Notably, it’s already making its mark in the legal industry. A number of legal technology companies have begun to incorporate ChatGPT into their platforms, including Ironclad (“AI Assist” generates redlined versions of contracts and more), DocketAlarm (its ChatGPT integration provides three-bullet-point summary of docket documents), and Lexion (offers a ChatGPT Word plugin that assists with contract drafting).

The bottom line: ChatGPT isn’t yet ready for prime time, but it’s a great way to begin your work. ChatGPT and tools like it are the future, although they are admittedly a work in progress. Even so, as part of your duty of technology competence, you should learn about them so that you can make an educated decision as to whether and how to use them in your law practice. Because like it or not, the majority of lawyers will be using ChatGPT on a daily basis, sooner rather than later. 

But don’t my word on it; let’s see what ChatGPT has to say about its impact on the legal profession. When I asked ChatGPT how it will impact the practice of law, this is what it had to say: “ChatGPT will impact law practices in the very near future by offering AI-powered legal research assistance, document drafting, and contract analysis tools that can save lawyers significant amounts of time and effort. ChatGPT can also help lawyers improve their legal writing skills by providing suggestions for clearer and more concise language. As AI technology continues to improve, ChatGPT will become an increasingly valuable tool for lawyers looking to streamline their workflows and improve the quality of their work.”

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software, an AffiniPay company. 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].

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].

NY Makes Notaries More Accessible By Passing Online Notary Law

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

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NY Makes Notaries More Accessible By Passing Online Notary Law 

Over the past few years, there has been a significant transformation in the way that work gets done. Hybrid and remote work has become commonplace, resulting in a growing need for new and innovative approaches to conducting business online. How we work is evolving, and in many cases, the changes will be permanent.

One example of this evolution is online notarization. During the pandemic, steps were taken to facilitate various types of remote work, including the passage of temporary regulations that permitted documents to be notarized remotely using online tools like videoconferencing software. 

As the effects of the pandemic recede, some states have taken steps to extend the temporary regulations by passing laws that establish permanent online notary procedures. These newly codified laws have the potential to revolutionize the way that legal professionals work, making it easier than ever for lawyers to practice law from any location.

Most recently, New York enacted new rules regarding online notaries on February 1st. Executive Law Section 135-c was passed and authorizes notaries to perform electronic notarial acts as long as they registered with the Department of State and comply with the newly promulgated rules. The notary must be located in New York when the documents are signed, but the signer may be located elsewhere.=

The new law defines electronic notaries as “a notary public or notary who has registered with the secretary of state the capability of performing electronic notarial acts in accordance with section 135-c of the Executive Law and this Part.”

Under this law, notaries must identify remote document signers in one of three ways: 1) the notary may have personal knowledge of the signer; 2) the notary may use technology that allows for the signer to provide an official, acceptable form of proof of identity; or 3) by taking the oath or affirmation of a witness who personally knows the signer, where the notary either personally knows or is able to identify said witness as a result of previous remote identification verification.

Once the document is signed, the law requires notaries to enter into a journal the notarial act performed and the type of identification provided. Journal records must be retained for 10 years after completion of the notarial act, as does the audio-visual recording of the notarization, along with a backup recording. 

I’ve advocated for the increased use of cloud-based technology in the legal profession for over a decade now, and from my perspective, the rapid uptick in its adoption driven by pandemic forces has been nothing short of miraculous. The passage of this regulation and others like it is a wonderful step forward and a heartening sign of things to come.

That being said, there have been some legitimate issues raised regarding the long-term effects of this new law. First, the complexity of the procedural requirements has been criticized. Second, the required length of the record-keeping requirements has been perceived as unduly burdensome, especially as it relates to the electronic data. 

Finally, there are concerns about the long-term impact that this new law will have on the availability of notaries. The fear is that the 24/7 online availability of electronic notaries will reduce the demand for in-person notaries locally, while the stringent and oppressive record-keeping requirements will dissuade people from becoming electronic notaries in the first instance. 

Only time will tell whether this prediction comes to pass. In the short term, however, this new law will have a beneficial effect, and people seeking a notary will have increased  flexibility and more options available to them. As far as I’m concerned, the immediate benefits outweigh the potential negative impact down the road, and I have faith that any issues with the law as promulgated will ultimately be ironed out over time

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-author of "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authored "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].

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].

Here’s why your firm needs to be in the cloud

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

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Here’s why your firm needs to be in the cloud

If you’re familiar with my column you know that I have been urging lawyers to learn about - and use - technology for over a decade now. I always stress how important it is for lawyers to educate themselves about the technologies available for use in their law practice and to make informed decisions regarding which tools to invest in for the long haul.

The reason it’s so important for lawyers to understand technology is because it has a direct impact on both the practice of law and the business of running a law firm. For example, cloud computing used to be viewed with skepticism and distrust. But no more. Because cloud-based software singlehandedly made it possible for the legal profession and courts to continue to function throughout the pandemic, it’s now a commonplace technology that is used in law firms across the country.

The increased use of cloud-based technology is a positive trend for any number of reasons, not the least of which is that it protects law firms from ransomware attacks. This is because law firm data stored in the cloud is housed on servers located offsite; as a result the servers - and the data stored on them - is protected from ransomware attacks.

These types of cyberattacks occur when bad actors are able to install malware on a law firm’s in-office systems, oftentimes by exploiting a vulnerability caused by a failure to install necessary software updates. When that malware is activated, all data stored on a law firm’s on-premises servers can be locked up and held hostage for ransom. Meanwhile, any and all law firm data stored or backed up in the cloud will be immune from the attack since the data is not stored on the hacked premises-based servers.

So if your law firm isn’t using cloud-based software to house or backup its data, it should be. If you’re still not convinced, perhaps a recently proposed New York Senate Bill will do the trick. In May, Senate Bill S6806A was introduced in the New York State Senate by Senator Diane J. Savino. (Online: ). This bill "prohibits governmental entities, business entities, and health care entities from paying a ransom in the event of a cyber incident or a cyber ransom or ransomware attack.” Presumably the goal is to deter would-be criminals from engaging in ransomeware cyberattacks by removing the incentive: the ransom.

However, the bill has the practical effect of precluding businesses that are victims of a ransomeware attack from complying with the the ransom demands. So, if this bill is enacted and your law firm is a victim of a ransomware attack, any law firm data stored on your firm’s hacked in-office servers will be lost since you will be prohibited from paying the ransom required to get it back. On the other hand, under this same scenario, any firm data stored on the remote cloud-based servers will continue to be accessible, and your inability to pay ransom will be of no consequence.

Notably, three other states are considering similar legislation, but under those bills only taxpayer or state funds will fall under the ransomeware payment ban.

The key takeaways for lawyers are twofold. First, make sure to regularly update any and all premises-based software and enact other cybersecurity measures, including training your employees to detect and avoid phishing and spoofing emails. Second, make sure to store your law firm’s data in the cloud. Not only will your firm enjoy the benefits of 24/7 convenient, secure, and flexible access to law firm information, the data will also be protected from ransomware attacks.

So if your firm isn’t already using cloud-based software, what are you waiting for? There’s no time like the present to make this important transition to the cloud.

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].