Web/Tech

Ready or Not, It’s Time To Set Up Your Remote Law Office

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

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Ready or Not, It’s Time To Set Up Your Remote Law Office

You’ve resisted technological change for years and put off adopting new software into your law firm. After all, you were busy doing what lawyers are trained to do: practice law. You didn’t have time to learn about technology, research the legal software available, and then figure out how to use it in your firm. You figured you’d get around to it eventually, when the time was right.

I’ve got news for you: the time is now. As you know, earlier this week, the world as we knew it ground to a screeching halt. COVID-19 descended upon our country, and cities, counties, and states began to require most non-essential businesses to close in the name of public safety. Courts began to suspend all but the most essential proceedings, and many law firms were forced to shut their bricks and mortar doors. It is no longer business as usual, and experts are predicting that the disruption could last for a year or more.

Rest assured, that doesn’t mean that the business of practicing law will cease to exist. The technology tools you need to set up a remote law office (aka a “virtual law firm”) are readily available and affordable. It’s simply a matter of identifying the software tools your law firm needs and implementing them firm-wide.

For most law firms, you’ll need to invest in the following tools in order to run your law firm remotely:

• Video conferencing software: facilitates encrypted face-to-face video meetings with clients, work colleagues, and co-counsel;
• A VOIP (voice over internet protocol) phone system: allows you to make and receive unlimited phone calls, conduct conference calls, and receive (and store) messages without needing a landline.
• Cloud-based law practice management software: provides a centralized location for contacts and calendars; invoicing and time-tracking; documents and other matter-related data; internal and external communications; financial data; and may also include built-in e-signature capabilities, lead management tools, integrated email, 2-way text messaging, and secure communication and collaboration tools such as a client portal.
• An online fax service: instead of using a landline-based fax machine, documents can be sent and received over the internet via email, an online portal, or a smartphone app.
• Document scanning tools: hardware and software tools, including mobile apps, that can be used to quickly and easily scan and digitize documents.
• Collaborative word processing software: cloud-based word processing software that makes it easy to collaborate in real-time with work colleagues.
• Speech-to-text dictation software: voice recognition technology that allows you to simply dictate and then the text contemporaneously appears on the screen in front of you as you speak.

You can find links to articles I’ve written about each of these technology tools here.

Once you’ve researched and chosen the software you’ll be using to set up your remote law firm, the next step is to train your employees and provide them with the information they’ll need to implement the software into their daily routine. Teach them how to use the features of each type of software and impress upon them the fact that client confidentiality rules apply no matter where they happen to be working.

No doubt you're feeling overwhelmed and concerned about the future of your law firm, but the good news is that the tools you need to practice law virtually are readily available and have been for years now. The technology is time-tested, trustworthy, and ethical. In fact, the ethics committees of more than 20 states, including New York, have deemed the use of cloud computing by lawyers to store confidential information to be permissible.

So what are you waiting for? Your clients are relying on you to get back to work - so get to it! Do your research, choose the right technology for your law firm, and start practicing law remotely. It really is that easy.

And, rest assured, there truly is no better time than the present.

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


The Ethics of Responding to Negative Online Reviews

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

*****

These days the online world matters just as much as the offline world when it comes to conducting business. The Yellow Pages have been replaced by Google and apps, just as restaurant and movie reviews in newspapers have now been co-opted by the online reviews of actual customers. And just like every other technology-based trend, lawyers are no longer immune from the effects of the online review ecosystem.

In fact, for many small law firms, negative online reviews can be a big problem. I often frequent internet forums where lawyers will seek advice on how to handle a particularly negative and unfair online review. In some cases the person leaving the review was never even a client of the attorney’s firm, but the negative review left regarding an alleged unpleasant encounter with the attorney or law firm staff member resulted in a significant decline in the law firm’s rating. In others, a disgruntled client will leave a damning review grounded in untruths that drastically reduce the firm’s Google My Business or Yelp rating.

In cases like that, what’s a lawyer to do? What’s the best way to address the review both in terms of optics and ethics? While there’s no clearcut answer from an optics standpoint and there’s undoubtedly more than one way to go about effectively responding, the ethics of the situation is often more clear.

In recent years, a number of different jurisdictions have addressed the issue of how to ethically respond to negative online reviews, and one of the most recent to do so was North Carolina in Proposed 2020 Formal Ethics Opinion 1. As of now, this opinion is available for public comment and has not yet been published in final form. But the conclusions reached therein align with many of the opinions issued in other jurisdictions on this topic, so it’s illustrative of how to navigate the ethical issues when responding to a negative online review of your law firm.

The facts in the case at issue are simple: the lawyer’s former client posted a negative review on a consumer rating website that the lawyer believed was false. The lawyer was in possession of information that would rebut the allegations, but said information was confidential. The question to be answered was how the lawyer might ethically respond to the comments via a publicly viewable post.

At the outset, the Ethics Committee emphasized the importance of client confidentiality. The Committee explained that because confidentiality is a foundational element of the attorney-client relationship, lawyers are prohibited from revealing all confidential information acquired during the course of representation unless: 1) their former client consents or 2) one of the exceptions set forth in Rule 1.6(b) are applicable.

The Committee then turned to considering any applicable exceptions and determined that the only one that might apply to the situation at hand was Rule 1.6(b)(6), which “permits a lawyer to reveal information to the extent the lawyer reasonably believes necessary: [T]o establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client; to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

Next, the Committee examined the nature of online reviews and determined that a negative online review did not constitute a “legal claim or disciplinary charge arising in a civil, criminal, disciplinary, or other proceeding”, and thus did not fall within the parameters of that exception.

Accordingly, the Committee concluded that confidential information may not be used when responding to online criticism of a lawyer’s services: “(A) (l)awyer may post an online response to the former client’s negative online review provided the response is proportional and restrained and does not contain any confidential client information.”

In other words, think before you type, since the internet is forever. And if at all possible, take steps to move the dispute offline so that you can discuss it with the client face-to-face and attempt to come to an amicable - and private - resolution of any outstanding issues. That way you’ll hopefully end up with a happy former client who may one day send business your way, and at the same time avoid leaving a permanent online record that you might later come to regret.

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


Round Up: ABA Techshow, Chatbots, Cybersecurity, and More

SpiralI 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 late-January to present:


ABA Technology Survey Results: Cybersecurity Measures Taken by Firms

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

*****

ABA Technology Survey Results: Cybersecurity Measures Taken by Firms

If cybersecurity isn’t on your radar in 2020, then it’s high time you made it a priority. The risk of a breach that could compromise your law firm’s confidential client data is an increasing likelihood, especially if your firm hasn’t enacted security measures designed to counter cybersecurity threats.

This is especially so in the wake of news, as reported by the ABA Journal in mid-February, that a Texas law firm’s data was hacked and then its data was published online. The confidential information disclosed included fee agreements and diaries from personal injury cases.

Earlier in February there were also reports that ransomware attacks hit three different law firms.These types of attacks occur when law firm employees receive an email that appears to be legitimate but was sent by a hacker and includes a malicious link. Once employees unwittingly click on a phishing link or a link infected with malware, your firm’s data can then be exploited.

If you’re still not convinced that cybersecurity should be a priority for your firm, then the results of the 2019 ABA Legal Technology Survey Report should do the trick. According to the Report, 26% of lawyers reported that their firms had experienced a security breach such as a lost or stolen computer or smartphone, an attack by a hacker, a break-in, or a website exploit. And, 36% indicated that their law firm technology had been infected with a virus, spyware, or malware.

If your firm doesn’t have a cybersecurity plan in place, rest assured you’re not alone. According to the Report, only one third of lawyers surveyed (32%) reported that their firms had a full security assessment conducted by an independent third party.

That being said, the survey results showed that most law firms overall were taking cybersecurity issues into account, but some were implementing more security precautions than others. One popular security measure enacted by the majority of law firms (86%) was spam filters. Others included firewall software (80%), anti-spyware (76%), pop-up blockers (74%), desktop or laptop virus scanning (68%), mandatory passwords (68%), email virus scanning (67%), network virus scanning (64%), and hardware firewalls (52%). Other less popular types of security tools used by fewer than 50% of the firms included file encryption (44%), email encryption (38%), file access restriction (38%), intrusion prevention (34%), intrusion detection (32%), web filtering (25%), whole/full disk encryption (22%), and employee monitoring (21%).

Another security measure increasingly taken by law firms is to use more secure online channels for client communication. After all, email communications and employee actions are often the weakest link when it comes to law firm security, so communicating using more secure methods simply makes sense. This is especially so in light of the issuance of Formal Opinion 477 by the ABA Standing Committee on Ethics and Professional Responsibility in May 2017. In that opinion, the Committee opined that unencrypted email may not always be sufficient for client communications, especially when the information being discussed is of a particularly sensitive nature. The Committee concluded that in that instance, lawyers may want to consider more secure methods of communicating and collaborating with clients, including using a “secure internet portal.”

The good news is that in 2020 lawyers have more options than ever when it comes to securing their law firm’s systems and communicating securely. In recent years, technology has improved significantly, and more secure electronic communication methods have emerged. That’s why more and more firms are choosing to use client portals to securely communicate. According to the Report, 29% of law firms now offer clients access to a secure client portal, up from 22% in 2017. Some of the top ways that lawyers reported that their firms used client portals include document sharing (42%), messaging and communication (38%), invoicing and bill payment (34%), and case status updates (23%).

So if your law firm isn’t prioritizing cybersecurity in 2020, then what are you waiting for?          There’s no better time than the present. If your firm isn’t taking precautions to protect its data and educate employees about phishing and hacking schemes, then it could be the next firm to make the headlines following a breach or ransomware attack. Don’t be that firm. Instead, take steps to secure your firm’s data and make sure that the only reason it makes headlines is for winning cases - not getting hacked

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

 


More of My Top Life Hacks and Gadgets

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

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More of My Top Life Hacks and Gadgets

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

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

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

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

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

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

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

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

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


Round Up: Book Reviews, Legal Research Tools, AI and more

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


ABA Report: 2020 Legal Research Trends

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

*****

ABA Report: 2020 Legal Research Trends

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Round Up: Robot Lawyers, Email Tracking, Bitcoin and More

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


Should Judges Provide Online Recommendations? Maryland Weighs In

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

*****

Should Judges Provide Online Recommendations? Maryland Weighs In

In 2019, most lawyers have accepted that the internet, and online marketing, is here to stay. For some lawyers, the extent of their practice’s online marketing is a law firm website. Others are more tech-savvy and also use social media platforms and other online tools to market their law practice. 

Of course, with those forays into online marketing come ethical missteps. In the beginning, the internet really did feel like the Wild Wild West. But over time, that changed, and ethics committees across the country have stepped up to the plate and provided lawyers with the ethical guidance needed to successfully navigate the 21st century online legal marketing landscape.

One recent opinion of interest that addressed an issue that I haven’t seen covered elsewhere arose in Maryland. In this case, the inquiring attorney was a judge who had a question regarding participation on Avvo. The specific issue under consideration by the Maryland Judicial Ethics Committee in Opinion Request Number: 2019-24 was whether it was ethically permissible for a judge to provide a recommendation for a former law clerk on Avvo.

In the past, ethics committees and courts have considered whether it is permissible for judges to form connections on social media sites with lawyers who practice before them, and the general consensus has been that they may and that doing so doesn’t usually require judges to recuse themselves in order to avoid the appearance of impartiality.. See, for example, ABA Formal Opinion 488 and Law Offices of Herssein and Herssein v. United States Automobile Association, No. SC17-1848 (2018).

In the Maryland opinion, the Committee was faced with a similar issue: Whether providing an Avvo recommendation on behalf of and at the request of the inquirer’s former law clerk could be perceived as affecting the judge’s appearance of impartiality.

At the outset, the Committee necessarily focused on Avvo, describing it as “a comprehensive online legal marketplace connecting consumers and lawyers through its online directory, attorney profiles, Q&A forum, reviews, and other features…(and) offers search tools that facilitate discovery of attorneys…(and each attorney) profile may also include client reviews and attorney endorsements.”

The Committee then turned to the issue of judicial recommendations, explaining that in some cases, judges may ethically provide a reference or recommendation on their official letterhead for an individual based upon the judge's personal knowledge, as long as “the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.”

Next the Committee analyzed the implications of an official judicial endorsement on the Avvo site. The Committee noted that because the judicial endorsement could not be anonymized due to the functionality of the Avvo platform and would be accessible by the general public, it “could potentially benefit the judicially promoted attorney to the disadvantage of others…(and) it presents a clear case of lending prestige that allows another to advance his or her economic interests.”

Accordingly, the Committee determined that judges may not provide Avvo recommendations to attorneys, including former clerks, since doing so negates the appearance of impartiality: “Requestor's Avvo endorsement would quite validly invite neutrality challenges from opposing parties and counsel whenever the endorsed attorney represented the adversary in the judge's courtroom… (and thus a) judge may not confer the prestige of judicial office to an attorney's marketing efforts.”

I’m in agreement with the Committee on this issue. A judicial recommendation on a publicly accessible site like Avvo is more consequential than the existence of a social media connection. Not only does it imply a connection closer than that of a mere social media friendship, it also implies an endorsement that could be perceived as a partiality towards the recipient.

As I always say, the online is simply an extension of the offline. The implications of a judicial recommendation in a public forum are clear, whether it’s a newspaper or a social media site: there is the risk of the perception of judicial preference toward that person. In other words, in this case, the medium does not change the message.

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


North Carolina on the ethics of mining social media for evidence

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

*****

These days, the vast majority of people, including lawyers, interact on social media. For many, social media platforms are a part of their daily lives and are a primary way of communicating with family and friends.

That’s why social media sites are a goldmine when it comes to obtaining evidence for pending litigation. So it’s no surprise that lawyers began to mine social media for evidence more than a decade ago, and when that began to occur, the ethics committees from various jurisdictions weighed in on how to ethically obtain evidence on social media.

The first to do so was the Philadelphia Bar Association in Op. 2009-02 which was followed by, among others, the New York State Bar (Op. 843 in 2010), the New York City Bar (formal Op. 2010-2), the San Diego Bar (Opinion 2022-2), the Oregon State Bar (Op. 2013-189), the Pennsylvania Bar (Formal Op. 2014-300), the Massachusetts Bar (Op. 2014-T05), the DC Bar in 2016), and the Maine Bar (Op. 217 in 2017).

A few months ago, the North Carolina Bar joined their ranks and addressed this issue as well. In mid-July the State Bar Council adopted 2018 Formal Ethics Opinion 5. At issue in this opinion was whether and under what circumstances lawyers may ethically “either directly or indirectly, seek access to social network profiles, pages, and posts…belonging to another person.” The conclusions reached in this opinion were in agreement with the those reached by the majority of jurisdictions on most issues, with a few notable exceptions.

At the outset, like all jurisdictions thus far, the Ethics Committee concluded that lawyers or their agents may view information obtained from publicly viewable social media profiles.

Notably, however, the Committee weighed in on an issue that is typically addressed in relation to researching jurors on social media sites as opposed to parties or witnesses: whether a passive notification from a social media site indicating that a lawyer has viewed the individual’s social media profile constitutes a “communication” from the lawyer. The Committee concluded that it did not and was instead a communication from the social media service. The Committee explained that a small number of views and notifications would be permissible but that lawyers “may not engage in repetitive viewing of a person’s social network presence if doing so would violate Rule 4.4(a)” which prohibits lawyers “from using means that have no substantial purpose other than to embarrass, delay, or burden a third person, and from using methods of obtaining evidence that violate the legal rights of such a person.”

Next the Committee concluded that lawyers are forbidden from using deception to access social media information located behind a privacy wall. That being said, lawyers may, using their own true identities, request access to an unrepresented person’s social network presence behind a privacy wall. The Committee explained that “(t)he person contacted has full control over who views the information on her social network site (and the) grant of the lawyer’s request, without additional inquiry, does not indicate a misunderstanding of the lawyer’s role.”

However, the Committee determined that it was ethically impermissible for lawyers or their agents to request access to a represented person’s restricted social media presence. According to the Committee, absent express consent from the represented person’s attorney, “the request interferes with the attorney-client relationship and could lead to the uncounseled disclosure of information relating to the representation.”

The last issue considered by the Committee is of particular interest since, to the best of my knowledge, it has not yet been addressed by any other jurisdictions. Specifically the Committee considered whether a lawyer may request or accept information from a third party who has access to the restricted information found behind the privacy wall of a person’s social media profile. According to the Committee, doing so is perfectly acceptable for both represented and unrepresented persons. The Committee compared this to the similar offline scenario where lawyers may obtain other types of evidence relevant to a client’s matter from witnesses.

According to the Committee: “(W)hen a lawyer is informed that a third party has access to restricted portions of a person’s social network presence and can provide helpful information to the lawyer’s client, the lawyer is not prohibited from requesting such information from the third party or accepting information volunteered by the third party. Similarly, a lawyer may accept information from a client who has access to the opposing party’s or a witness’s restricted social network presence…However, the lawyer may not direct or encourage a third party or a client to use deception or misrepresentation when communicating with a person on a social network site.”

All in all, an interesting opinion that is worth a read, even if you don’t practice in North Carolina. And if you aren’t already mining social media for information relevant to your clients' cases, then what are you waiting for? There is undoubtedly useful information to be found, and the failure to seek it out arguably amounts to malpractice in this day and age. So there’s no better time than the present to get up to speed on the ins and outs of ethically mining social media for evidence - and this opinion is a great place to start.

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