Sui Generis--a New York law blog

Round Up: Remote Working, Virtual Conferences, and Cloud Computing

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

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

Case shows why lawyers must encrypt e-communications

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

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Case shows why lawyers must encrypt e-communications

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

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

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

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

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

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

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

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

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

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

Should you copy clients on emails to opposing counsel?

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

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Should You Copy Clients On Emails to Opposing Counsel?

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

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

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

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

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

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

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

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

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

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

Does Facebook have an obligation to prevent murder?

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

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Does Facebook Have an Obligation to Prevent Murder?

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

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

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

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

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

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

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

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

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

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

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

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

Round Up: Artificial Intelligence, Virtual Conferences, Surveys and More

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

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

Michigan Bar weighs in on technology competence for lawyers

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

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Michigan Bar weighs in on technology competence for lawyers

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

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

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

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

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

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

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

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

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

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

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

 

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

Law firms and technology post-COVID: The latest statistics

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

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Law firms and technology post-COVID: The latest statistics

It’s hard to believe that the pandemic has been with us for nearly 6 months now, and will likely be around for months - or even years - to come. While it’s hard to predict when the pandemic will end, one thing is for sure: COVID-19 has changed many aspects of our culture, from when and how we interact with others to how we conduct business. Many of those changes will undoubtedly be permanent.

The legal profession has not been immune from its impact. The pandemic has drastically altered the ways in which lawyers work. For example, lawyers have become increasingly reliant on remote working technologies to get the job done. Virtual meetings and court appearances have become the norm, lawyers are storing and accessing data in the cloud at rates never before seen, and many indicate that their firms are planning to invest in new software to ensure that employees can work remotely no matter what happens.

Of course, don’t take my word on it. Let’s take a look at cold, hard statistics to see what lawyers have to say about how COVID-19 has and will affect their firms. The statistics we’ll be looking at today are from the latest Legal Technology Survey conducted by the International Legal Technology Association (ILTA). While the survey has not yet been officially released, some results from this annual survey were shared on social media by attendees of a virtual session held during ILTA’s annual legal technology conference last month.

This year’s survey results were based on responses of attorneys from firms of all sizes. 31% were from firms with less than 50 lawyers, 37% were from firms with 50 - 149 lawyers, 18% were from firms with 150 - 349 lawyers, 8% were from firms with 350 - 699 lawyers, and 7% were from firms with more than 700 lawyers.

As reported by attendees, there were lots of interesting findings gleaned from the survey regarding how law firms are operating during the pandemic. For example, according to the survey results, more firms than ever are relying on cloud computing software to run their firms. 35% of survey respondents shared that their firms continued to move to the cloud with every software upgrade. Nearly 35% indicated that their firms were considering a move to the cloud, and more than 20% of firms were already mostly using cloud computing software. Only a little over 10% indicated that their firms were still uncomfortable with the idea of cloud-based software.

The survey results showed that the types of cloud-based software used by firms runs the gamut. The most popular was cloud-based email, with 50% of lawyers reporting that their firms used it. Other notable types of cloud computing software used by firms included: 1) document management (37%), 2) time and billing (23%), and 3) case and practice management (15%).

Another interesting set of statistics shared related to how the pandemic affected the future plans of law firms. Survey respondents were asked what their firms planned to continue to do differently once work-from-home mandates were lifted. 45% reported that their firms would continue to permit more work-from-home options, and 13% planned to provide more laptops to employees. Other notable responses that appeared to be driven by the need to ensure the ability to shift back to remote work if needed in the future included: 1) an emphasis of moving to paperless operations (9%), 2) increased usage of home offices (8%), 3) an investment in more mobile technologies (7%), 4) an increasing reliance on virtual meetings (7%), 5) the use of more online collaboration tools (4%), and 6) an increased investment in more cloud-based tools (3%).

In other words, the times they are a-changin’, with an emphasis on cloud-based tools that enable lawyers to work from anywhere. I’ve been encouraging lawyers to use cloud computing for more than a decade now, so all I have to say about this development is: It’s about time! While I wish it hadn’t required a pandemic to get us to this point, it’s nevertheless a step in the right direction. Change isn’t always easy, but I’m confident that this particular transition will benefit lawyers and their clients for many years to come.

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 on the ethical issues triggered by the remote practice of law

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

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Florida On The Ethical Issues Triggered by the Remote Practice of Law

Since the start of the pandemic I’ve covered how the effects of COVID-19 have drastically altered the ways in which lawyers get their work done. The majority of lawyers have worked remotely at some point over the last six months and some continue to do so, with many large and mid-sized firms announcing that work-from-home policies are in place until at least the end of the year. Similarly, because of COVID-19, courts are conducting jury trials and hearings via videoconferencing, and lawyers are using cloud-based legal software for document management, e-signatures, billing, invoicing, payment processing, communication and collaboration with clients and colleagues, and much more.

As result of these significant changes, it’s not surprising the regulatory landscape under which lawyers practice has likewise been affected. For example, last week I discussed one such case: an opinion handed down in March by the District of Columbia Court of Appeals. In that Opinion, the Court concluded that an attorney who is not a member of the District of Columbia Bar may nevertheless practice law from the attorney’s residence in the District of Columbia under the “incidental and temporary practice” exception of Rule 49(c)(13).

The Florida State Bar Standing Committee on the Unlicensed Practice of Law (Committee) also recently weighed in, handing down Advisory Opinion 2019-4. in August. At issue in this opinion was whether it is ethically permissible for lawyers to practice law remotely from their homes in Florida, where said lawyers are: 1) unlicensed in Florida, 2) employed by firms located in other states, and 3) working on matters unrelated to Florida laws.

During the ethics hearing, the attorney seeking the Committee’s ethical guidance testified about his remote technology set up as follows: “We’ve tried to set up and utilize the technology in a fashion that essentially places me virtually in New Jersey. But for the fact that I'm physically sitting in a chair in a bedroom in Florida, every other aspect of what I do is no different than where I'm physically sitting in a chair in Eatontown, New Jersey and that's the way I tried to and have structured it so that the public sees a presence in, in Eatontown, New Jersey and no other presence."

In reaching its decision, the Committee explained that of import was that the petitioning attorney had no plans to set up a law practice in the state: “It is clear from the facts in Petitioner’s request and his testimony at the public hearing that Petitioner and his law firm will not be establishing a law office in Florida. It is equally clear that Petitioner will not be establishing a regular presence in Florida for the practice of law; he will merely be living here."

Next, prior to reaching its conclusion, the Committee highlighted the hearing testimony of one witness, an attorney, noting that it was particularly persuasive on the issue at hand: “I believe the future, if not the present, will involve more and more attorneys and other professionals working remotely, whether from second homes or a primary residence. Technology has enabled this to occur, and this flexibility can contribute to an improved work/life balance. It is not a practice to discourage.”

Finally, the Committee concluded that it was permissible for the petitioning attorney to work remotely as proposed: “It is the opinion of the Standing Committee that the Petitioner who simply establishes a residence in Florida and continues to provide legal work to out-of-state clients from his private Florida residence under the circumstances described in this request does not establish a regular presence in Florida for the practice of law.”

In other words, the pandemic has ushered in a new normal for the legal profession, and technology  - and remote working - is here to stay. Practicing law from any location is becoming an accepted practice, and the technology to facilitate this is likewise no longer ethically problematic. So if you're still on the fence regarding the use of cloud computing, what are you waiting for? The tides have turned, and there’s no better time than now to make the transition to working remotely using cloud-based technology.

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].

D.C. Bar weighs in on ethics of working remotely

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

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DC Bar Weighs in on the Ethics of Working Remotely During COVID-19

If your firm is like most law firms, some or all members of your firm’s workforce has been working remotely since the onset of the pandemic. In many cases, your firm’s employees may have chosen to stay close to home (and the office) during quarantine periods, while others chose to move to more remote locations for varying reasons.

If you’re one of the lawyers who chose the more remote option, your choice of location may well have unknowingly triggered ethical issues. For example, if you’re working for a prolonged period of time from a location in another state in which you’re not licensed, then by doing so you may be engaging in the unauthorized practice of law.

But, just as the pandemic has drastically affected the ways in which lawyers get their work done, so too has it had an effect on the regulatory landscape under which lawyers practice. This phenomenon is readily apparent when it comes to the ethics of remote working, as evidenced by two recent ethics opinions, one of which I’ll cover in today’s column.

This opinion was issued on March 23, 2020 by District of Columbia Court of Appeals in direct response to the issues presented by lawyers working remotely during the pandemic. At issue in Opinion 24-20. was whether an attorney who is not a member of the District of Columbia Bar may nevertheless practice law from the attorney’s residence in the District of Columbia under the “incidental and temporary practice” exception of Rule 49(c)(13).

In reaching its determination, the Chair of Committee on the Unauthorized Practice of Law (“Committee”) explained that pursuant to Rule 49(a) of the Rules of the District of Columbia Court of Appeals, lawyers generally may not “engage in the practice of law in the District of Columbia…unless enrolled as an active member of the D.C. Bar.”

Next, the Committee acknowledged one exception to that Rule that allowed attorneys not admitted to the D.C. Bar to practice law in D.C. under certain circumstances. Namely, the Rule provides an exception “for ‘incidental and temporary practice’…if the person is authorized to practice law and in good standing in another state or territory or authorized to practice law in a foreign country, is not disbarred or suspended for disciplinary reasons, and has not resigned with charges pending in any jurisdiction or court.”

The Committee then reviewed the commentary to the Rule for additional insight. Notably the commentary explained that the “incidental and temporary practice” exception was intended to apply “where an attorney with a principal office outside the District of Columbia is incidentally and temporarily required to come into the District of Columbia to provide legal services to a client.”

Finally, the Committee turned to the likely factual scenario presented by lawyers working from D.C. during the pandemic and concluded that their remote work fell within the exception. Specifically the Committee determined that lawyers who are not licensed in D.C. “may practice law from the attorney’s residence in the District of Columbia under the ‘incidental and temporary practice’ exception of Rule 49(c)(13) if the attorney (1) is practicing from home due to the COVID-19 pandemic; (2) maintains a law office in a jurisdiction where the attorney is admitted to practice; (3) avoids using a District of Columbia address in any business document or otherwise holding out as authorized to practice law in the District of Columbia, and (4) does not regularly conduct in-person meetings with clients or third parties in the District of Columbia.”

The outcome of the opinion is not surprising given the unusual and unpredictable situation that we all find ourselves in. Of import is that is just one more example of how COVID-19 has affected - and continues to change - our profession. Check back next week for another example of this phenomenon at work. In that column I’ll take a look at a more recent opinion from Florida that addresses a similar issue, so stay tuned!

 

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].

Judges and social media use: Drawing the line in New York

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

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Judges and social media use: Drawing the line in New York

In 2020, it’s safe to say that I no longer need to convince lawyers that social media is here to stay, since nearly everyone - including lawyers - regularly interacts on least social media site. And by “lawyers” I’m referring to pretty much anyone with a law degree, including judges.

That being said, judges are unique. When they accept the position of a judgeship, they agree to walk a fine line in both their public and private lives in order to maintain the appearance of impropriety. As a result, given the very public nature of most social media interactions and the ease of accessing the same, this particular medium of communication can sometimes prove to be problematic for judges.

Case in point: a part-time judge who hoped to personally publish online decisions handed down by the judge. Specifically, in New York Judicial Ethics Opinion 20-58, which was handed down earlier this month, the enquiring judge sought input on whether it was permissible to “post his/her published judicial decisions on his/her personal social media website by listing the ‘case name, citation and link to the Official Reporter website’…(and also) comment on the decision either on social media or elsewhere.”

In reaching its decision, the Advisory Committee on Judicial Ethics noted that it was limiting its opinion to items posted to judges’ personal social media websites and was not addressing the issue of whether judges’ campaign committees can post links to the judges’ published decisions as part of a judicial campaign.

The Committee explained that as it related to the question raised by the enquiring judge, there were two different issues under consideration: 1) whether there was a material, relevant difference between judges posting judicial decisions on personal social media websites as opposed to providing them to a third-party news entity for publication in print or online, and 2) whether part-time judges posting their judicial decisions on a personal social media website might create an impression that they were indirectly using their judicial status to promote their law practices.

In regard to the first issue, the Committee explained that although the publication of decisions online is not inherently inappropriate, the primary concern was that doing so could, in some situations, be seen as inviting or encouraging interaction with the judge. The Committee opined that “there is a material, relevant difference in a judge posting his/her own judicial decisions on his/her personal social media website, rather than providing them to a third-party news entity that may publish them in print or online.”

According to the Committee, in many cases, online postings by judges are rarely problematic if judges post solely about “hobbies, social events or milestones with friends or family, and a wide variety of other such ordinary, non-political topics unrelated to his/her judicial office.” But the Committee concluded that when judges post their judicial decisions online, it runs the risk that doing so “may be seen as implicitly inviting discussion, comment, or other input on it from friends, family, or other members of the public.” As such judges should refrain from doing so.

Next, the Committee turned to the second issue, and determined that if part-time judge  s who also practice law were to post their judicial decisions to personal social media sites, it could impermissibly “create an impression the judge is indirectly using his/her judicial status to promote his/her law practice.”

Thus, the Committee concluded that for multiple reasons judges should refrain from posting their judicial decisions on their personal social media websites.

In an effort to provide additional guidance to judges regarding permissible online interactions and where to draw to the line, the Committee explained that “the more frequently and prominently a judge references his/her judicial position on his/her personal social media website, the greater the risk he/she will be seen as using that judicial position to advance his/her private interests.”

In other words, New York judges are not banned from interacting online. Instead, they should carefully consider the ways in which they’d like to interact, and then ensure that they walk that fine line between permissible interactions and those that either advance their private interests or invite impermissible online discussions related to their position as a judge.

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].