Web/Tech

Chat GPT 101 for Lawyers: The Upsides — and Downsides

Stacked3Here 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

Stacked3Here 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 

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

*****

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

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

*****

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

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

*****

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].


Florida Bar on The Ethics of Accepting Venmo and Other Online Payments

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

*****

Florida Bar on The Ethics of Accepting Venmo and Other Online Payments

The effects of the pandemic on the practice of law - and on our society overall - will be long lasting and significant. It will likely take years to fully appreciate how much things have changed. That being said, many of the structural modifications to our work culture are already apparent, and have been caused by the increased prevalence of remote work, social distancing requirements, and economic turbulence.

During the pandemic, many law firms initially struggled to stay afloat because of the high levels of uncertainty and the need to avoid in-person interactions. Business processes were interrupted, and traditional forms of payment collection were stalled as a result of the touchless requirements of the pandemic. Out of necessity, however, law firms quickly pivoted and many that had staunchly resisted accepting credit cards using online payment tools suddenly shifted gears.

Of course, there are many different ways to accept online payments from clients, and the functionality and privacy features of these tools vary greatly. That’s why it’s no surprise to learn that lawyers who wanted to ethically use online payment tools turned to their local ethics committees for guidance.

For example, in March the Florida Bar Professional Ethics Committee released Proposed Advisory Ethics Opinion 21-2,which squarely addressed this issue. (Note: it has yet to be approved for release as a final opinion).

In that opinion, the Committee acknowledged the increase in inquiries of this nature since the start of the pandemic: “The Florida Bar Ethics Department has received several inquiries whether lawyers may accept payment from clients via Web-based payment-processing services..This also is an increasingly frequent question on the Bar’s Ethics Hotline. Accordingly, the Professional Ethics Committee issues this formal advisory opinion to provide Florida Bar members with guidance on the topic.”

In reaching its determination as to whether lawyers can ethically use online payment tools, the Committee explained that accepting credit and debit cards via online payments is commonplace for businesses in 2021. Therefore it makes no sense to preclude lawyers from accepting this type of payment: “The Rules of Professional Conduct are ‘rules of reason’ and ‘should be interpreted with reference to the purposes of legal representation and of the law itself’…When reasonable to do so, the rules should be interpreted to permit lawyers and clients to conduct business in a manner that society has deemed commercially reasonable while still protecting clients’ interests. Permitting lawyers to accept payments via payment-processing services under the conditions expressed in this opinion satisfies those objectives.”

Because the Committee readily acknowledged that permitting attorneys to accept online payments simply made sense, the Committee concluded that it is ethical for lawyers to accept this type of payment from clients, but with certain caveats: "A lawyer ethically may accept payments via a Web-based payment-processing service (such as Venmo or PayPal), including funds that are the property of a client or third person, as long as reasonable steps are taken to protect against inadvertent or unwanted disclosure of information regarding the transaction and to safeguard funds of clients and third persons that are entrusted to the lawyer.”

The Committee explained that lawyers must protect confidentiality when using online payment tools and cautioned lawyers to familiarize themselves with their online payment platform of choice and then take steps to ensure that client confidentiality is preserved. For example, the Committee advised that if lawyers choose to use Venmo to accept payments, the app’s privacy settings will need to be adjusted in order to ensure confidentiality: “If, as with Venmo, the service being used permits the recipient to control the privacy setting, the lawyer must select the most secure setting to mitigate against unwanted disclosure of information relating to the representation.”

The Committee also recommended that lawyers who choose to accept online payments from clients consider including language like this in their retainer agreements:

“As a convenience to our clients, we accept payment for our services via certain online payment-processing services. The use of these services carries potential privacy and confidentiality risks. Before using one of these services, you should review and elect the privacy setting that ensures that information relating to our representation of you is not inadvertently disclosed to the public at large.”

Finally, the Committee wisely acknowledged that technology is always changing and thus their recommendations regarding specific products were not intended to be inelastic: “The discussion about specific applications in this opinion is based on the technology as it exists when this opinion is authored and does not purport to address all such available technology. Web-based applications and technology are constantly changing and evolving. A lawyer must make reasonable efforts to become familiar with and stay abreast of the characteristics unique to any application or service that the lawyer is using.”

While this opinion is not yet in its final form, it offers lots of instructive insight and guidance for lawyers seeking to accept online payments in their firms. It covers a lot of ground, so make sure to read it in its entirety for advice regarding trust account reconciliation and other issues unique to accepting credit card payments for legal services.

And finally, if your firm isn’t already accepting online payments, what are you waiting for? There’s no better time than now to make that leap.

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: Secure Communication, Post-Pandemic Law Firms, Practice Management Software, 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 April:


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


New Jersey on the ethics of ‘reply all’ emails

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

*****

New Jersey On The Ethics Of “Reply All” Emails

Lawyers have communicated with clients via electronic means for more than two decades. For most of that time period, email has been the preferred and primary method of electronic communication. However, over time, email - which is inherently unsecure and is no different than sending a postcard written in pencil through the post office - has begun to fall out of favor as technology has improved.

For that reason, in recent years, more secure communication methods are increasingly being recommended by ethics committees and cybersecurity security experts. More secure options include encrypted email and the encrypted client communication portals built into law practice management software, for the reasons set forth in ABA Opinion 477, where the ethics committee concluded that due to “cyber-threats and (the fact that) the proliferation of electronic communications devices have changed the landscape…it is not always reasonable to rely on the use of unencrypted email.”

Despite this recommendation, many lawyers continue to use unencrypted email for confidential client communications, and doing so can sometimes compromise confidentiality. For example, the New Jersey Supreme Court Advisory Committee on Professional Ethics recently addressed one of the many ethical risks posed by email: the use of the “reply all” functionality.

At issue in NJ Ethics Opinion 739, which was handed down in March, was whether ethical issues were presented when lawyers used the “reply all” function to respond to a group email that had been sent by a lawyer who had cc:d his client in on the original email. Specifically the inquiring lawyer queried whether lawyers who used the “reply all” function in that scenario were unethically communicating with his client without consent, thus compromising the confidentiality and sanctity of the attorney-client relationship.

At the outset, the Committee noted that the applicable Rule of Professional Conduct was Rule 4.2, which  provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter ….”

Next, the Committee wisely considered analogous offline conduct prior to reaching its determination. Specifically the Committee explained that when lawyers receive a letter where opposing counsel’s client is copied, it would be unethical for the recipient lawyer to respond by writing a letter addressed to both the lawyer and the client. In comparison, if a lawyer placed a phone call to another attorney and the client was on the line as well, the lawyer who initiated the call would have been deemed to impliedly consent “to opposing counsel speaking on the call and thereby communicating both with the opposing lawyer and that lawyer's client.”

According to the Committee, because email is a decidedly informal method of communicating, when clients are cc:d in on a group email, it is assumed that all replies to the email are directed  toward the attorneys in the group and not the client.

The Committee acknowledged that some other jurisdictions have concluded otherwise, and have found that implied consent to client communications does not occur in this scenario. However, the Committee specifically rejected that determination since “these opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.”

Therefore, the Committee concluded that implied consent does, in fact, in this situation and that “(l)awyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response. ‘Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha' moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer's client.”

I wholeheartedly agree with the Committee’s conclusion, and particularly appreciate that it reached its determination on this issue by considering how Rule 4.2 is applied to analogous forms of offline communication. Because, as I always say, the online is simply an extension of the online. New rules are rarely required for online conduct. Instead, existing rules and principles can be applied to online conduct thus providing more relevant and concrete guidance that will withstand the test of time.

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].


Zoom Etiquette Guidance Offered to New York Lawyers

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

*****

Zoom Etiquette Guidance Offered to New York Lawyers

If you regularly read my column you know that I’ve been encouraging lawyers to use technology for over a decade now. When I first started writing about technology, I highlighted the benefits that social media and blogging could offer lawyers. From there I shifted my focus to mobile computing and cloud-based tools, and then eventually artificial intelligence legal software. Regardless of which technology I was focused on at any given time, my primary goal has always been to lawyers to motivate lawyers to familiarize themselves with - and begin to use - these emerging tools.

In the early years, my efforts often fell on deaf ears. Generally speaking, lawyers wanted nothing to do with all of the newfangled technology that I was so excited about. But over time, attitudes have changed, in part because the technologies I was evangelizing were becoming part of our day-to-day lives. This entanglement of technology with mainstream culture ultimately had the end effect of changing the practice of law, whether lawyers were on board or not. And eventually, once lawyers actually tried out any given tool, they oftentimes found that it actually had a positive impact on both their personal and professional lives.

That’s why, in 2012, the American Bar Association acknowledged the indisputable influence of technology on the practice of law when it modified comment 8 to Model Rule 1.1 to state that maintaining technology competence is part of the ethical obligations of lawyers. The first states to adopt this duty of technology competence did so in 2013, and New York followed suit in 2015. Most recently, California joined their ranks, and became the 39th state to adopt this duty when the California Supreme Court approved the new rule on Feb. 18, 2021.

It’s no coincidence that this continued emphasis on technology competence has occurred in parallel with the increased reliance by law firms on remote working technologies. The global pandemic in which we now find ourselves took most everyone by surprise and resulted in a greatly accelerated rate of technology adoption by the legal profession and the general population as a whole. Social distancing requirements necessitated remote interaction, and as a result cloud-based software, including videoconferencing tools, quickly became commonplace in most households.

Notably, the rapid technology adoption did not occur without a few hiccups. In fact, it has seemed as if not a day has gone by without a Zoom fail making the news, many of which feature lawyer gaffes during Zoom court appearances. These headlines have occurred with such frequency that I recently penned a Daily Record column wherein I urged lawyers to “stop acting like idiots online.”

It would seem that I’m not the only one who is at the end of their rope when it comes to this issue, since top administrative law judges in New York State recently issued a memorandum entitled “Virtual Proceedings - Appropriate Decorum.” 

Prior to providing its recommended videoconferencing protocols for New York lawyers, the judges explained why it’s so important for lawyers to behave properly during virtual court proceedings: “The COVID-19 pandemic has required all courts across New York State to innovate and adapt in order to continue to provide the effective and efficient administration of justice and Access to Justice for all court users consistent with the highest standards…Appropriate decorum/etiquette is a necessity during all virtual court proceedings.”

Next, they provided the following guidance to New York lawyers who appear remotely in court proceedings. While the recommendations offered seem to be fairly self-evident, if recent headlines are any indication, they are a much-needed addition to the virtual toolbox of lawyers who appear in court remotely:

  • Dress in appropriate attire, as if you were appearing in-person in court
  • Display an appropriate and professional background
  • No consumption of food or drink during the proceeding
  • Remain professional and dignified
  • As in ln-Person proceedings, only one person should be speaking at a time.

Now that lawyers have this videoconferencing advice readily available, I have the utmost confidence that the salacious headlines regarding lawyers’ inappropriate behavior on Zoom will decline significantly. From here on in, I fully expect New York lawyers to be fully dressed, dignified, and polite whenever they make a virtual appearance. Capisce? Capisce.

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].