Legal Ease Blog

New ABA Ethics Opinion on Confidentiality, Security of Client Data in Electronic Communications

Last week (May 11, 2017), the ABA issued a new ethics opinion, Formal Opinion 477, dealing with the security of communication of protected client information. Several excellent posts have already been written about the opinion, including a summary by the ABA Journal, and an article by Bob Ambrogi on his Law Sites blog, among others. The opinion is getting a lot of attention, since it updates the ABA's Formal Opinion 99-413, issued in March 1999, on protecting the confidentiality of unencrypted email. That opinion concluded that, 

Opinion 477 is getting a lot of attention, since it updates the ABA's Formal Opinion 99-413, issued in March 1999, on protecting the confidentiality of unencrypted email. That opinion concluded that, 

A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet e-mail. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation.

But much has changed since 1999; email and other forms of electronic communication have become much more prevalent, and hacking has become a daily occurrence. In addition, since 1999, the ABA has adopted the 2012 "technology amendments" to the Rules of Professional Conduct, including Comments to Rule 1.1 regarding technology competence and 1.6 regarding the lawyer's obligation use reasonable measures to prevent inadvertent or unauthorized disclosure of confidential information.

As noted in Opinion 477,

Comment [18] to Model Rule 1.6(c) includes nonexclusive factors to guide lawyers in making a “reasonable efforts” determination. Those factors include:

• the sensitivity of the information,
• the likelihood of disclosure if additional safeguards are not employed,
• the cost of employing additional safeguards,
• the difficulty of implementing the safeguards, and
• the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

Opinion 477 still reinforces the "reasonableness under the circumstances" standard to determine what measures a lawyer must take to protect confidential client information, but provides some guidance in the form of seven factors lawyers should consider when determining what level of security is appropriate and what measures are reasonable under the circumstances. I recommend that all lawyers read the complete opinion, but I've listed the seven factors here, along with a list of questions under each factor that lawyers might use to help them decide what security measures should be employed.

1. Understand the Nature of the Threat

• How sensitive is the client's information? Does the matter involve trade secrets or other proprietary information that might be valuable to hackers or competitors?
• Is the client in a highly sensitive industry, such as banking or healthcare?
• Is this a high profile case or client which might increase the risk of a cyber-attack or attempt to intercept the client's data?

The more sensitive the client's data, the more stringent your security measures may need to be to be considered "reasonable."

2. Understand How Client Confidential Information is Transmitted and Where it is Stored

• Is client data stored onsite or off (or both)?
• Where are the data servers located? 
• What security is in place for servers storing client data?
• How are your electronic communications generated?
• How is client data accessed?
• Who can access client data?
• What devices are used to access client data? How many devices, and how many different types of devices, access client data?
• Are firm employees accessing client data from home? On the road? 
• Where is client data being accessed from? How many different potential locations? 

Once you know the answers to these questions you can begin to evaluate what security measures should be considered.

3. Understand and Use Reasonable Electronic Security Measures

As Opinion 477 states, 

Making reasonable efforts to protect against unauthorized disclosure in client communications thus includes analysis of security measures applied to both disclosure and access to a law firm’s technology system and transmissions.

Lawyers have many different options when it comes to data security, but not all options make sense in all circumstances. Some are more costly or complicated to implement, and may not be necessary in all circumstances. But lawyers must understand what is available in order to evaluate what is reasonable. Options include strong passwords, two-factor authentication, device security, and encryption, as well as the security of the networks over which client electronic data is being accessed or communicated.

• How secure is our network within the office?
• Are firewalls and anti-virus software up to date on all devices within the office?
• How are other networks that are used to transmit client data secured (ie are home wifi networks used by lawyers secured?)
• Are firewalls and anti-virus software up to date and being used on any networks or devices outside of our office that access our network and client data?
• How are the devices that access our network and client data secured? Are they password protected? Are all devices that access our network and client data locked? Can they be remotely disabled and wiped if lost or stolen?

4. Determine How Electronic Communication About Clients Matters Should be Protected

Now that you know how sensitive your client data is, how that data is accessed and communicated, where the potential points of intrusion are, and what security measures are available, you need to determine which available security methods (or combination of methods) is reasonable given the sensitivity of your clients' data.

In addition to asking questions globally for the firm as a whole, you must also consider each client and matter individually and discuss security and protection of data and confidentiality with the client.

• What kinds of communication will be sent in this matter? Will they be routine or highly sensitive?
• Who will we be communicating with in this matter and how will that communication take place?
• How confident are we in (or how much control do we have over) the security measures put in place by those with whom we will be communicating?
• What technology is available to the client (or third party) with whom we will be communicating?
• How tech-savvy is the client (or third party) with whom we will be communicating?
• Who has control over and access to the devices which the client will use to communicate with us electronically, and how will this affect attorney-client privilege?
• What methods of communication are appropriate for this client or matter? Is there especially sensitive information that should not be transmitted by email?
• Is there especially sensitive information that should not be transmitted by email?
• What other, secure methods are available to communicate with clients and third parties in this matter?

The opinion even suggests that "well vetted and secure third-party cloud-based file storage systems" might be a secure alternative to communicating and exchanging documents with clients than email.

 5. Label Client Confidential Information

The opinion suggests that labeling client confidential information to alert others that the information was intended to be privileged. While this may be a good routine practice in some circumstances, and may trigger a lawyer's obligation under Model Rule 4.4(b) to notify another lawyer if they "know or reasonably should know" that the information was intended to be privileged, it is likely not a reliable method of protection.

• Are privileged documents prominently labeled "privileged and confidential?"
• Are appropriate disclaimers used based on the circumstances and the content of the communication?

6. Train Lawyers and Nonlawyer Assistants in Technology and Information Security

Managing partners and supervising lawyers are required to take measures to ensure that the firm and its lawyers comply with the Rules of Professional Conduct, and those who supervise nonlawyers, including outside vendors who have contact with or access to client data, must ensure that those nonlawyers are acting in a manner compatible with the ethical rules. This includes rules regarding security of electronic communications and data.

• Do we have a security policy in place that covers electronic data and communication? Has that policy been provided to all employees?
• Has that policy been provided to all employees?
• How often is this policy updated?
• Have we trained our lawyers and staff on appropriate security measures for storage, access, and communication of client data?
• How recently was this training conducted?
• How often do we provide an update or refresher on this training?
• Are all employees required to participate in this training?
• Are the security measures being implemented?
• How often do we assess the security measures in our firm?
• Who is responsible for ensuring that security policies are implemented and followed?
• How recently was this training conducted? How often do we provide an update or refresher? Are all employees required to participate in this training?
• Do lawyers and staff understand how to secure devices that access our network or client data?

7. Conduct Due Diligence on Vendors Providing Communication Technology

• What are the qualifications of the vendors we use, including education, experience, and reputation?
• What services is the vendor providing (are they likely to come into contact with sensitive or privileged information)?
• What hiring practices are employed by our vendors (background and security checks, etc.)?What security measures do our vendors have in place?
• Do we have confidentiality agreements in place with our vendors? Do the vendors have confidentiality agreements in place with employees and others?
• Do vendors use to check for conflicts? If so, what methods do they use?
• What legal forums and remedies are available if the vendor agreement is violated?
• Are the members of our firm qualified to assess these issues, or do we need to hire an outside expert?
• Do the vendors have confidentiality agreements in place with employees and others?
• What security measures do our vendors have in place?

Getting Client Input

Lawyers are also obligated to communicate with clients about security and confidentiality issues and may need to advise clients about potential risks, particularly those involving highly sensitive or confidential information. A client also has input on the security and communication methods to be used in their matter; a client may provide informed consent for the use of a less secure (but possibly less expensive and/or less onerous and complicated) method of communication or may require the lawyer to use more secure methods.

(For more on client confidentiality, specifically with regard to email communication with clients, see my post on attorney-client confidentiality and email here.)

UPDATE: This article was chosen as the SmallLaw Pick of the Week!

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5 Tips for Managing Client Expectations: Infographic

Managing clients' expectations is not always easy, but this infographic contains 5 quick steps you can take to manage client expectations better in your legal practice.

Meeting and managing expectations well creates loyal clients. In order to manage expectations well, you need to identify what they are, and to recognize that clients have expectations around both outcome and service.

The client's perception about whether you did a good job as their lawyer will be colored by the expectations they have for the engagement from the moment they walk through your office door. The way you communicate with the client at your first meeting will set the tone for the rest of the engagement.

Clients with "identical" legal problems, may not have identical goals and expectations. Find out the backstory behind the client's matter. Learn about their background, family, business or employment and gauge their emotional reaction to the legal issue at hand and to the discussion as a whole. Each of these factors may influence the client's perception of the matter, as well as the result they would like to achieve.

LISTEN to the client before jumping in with your solution or plan to solve their legal issue or accomplish their goal. Ask questions not only about the client's substantive legal issue, but also about their expectations during the engagement. These might include expectations about how often and in what manner they would prefer to communicate with you about the matter, about the budget and fee, or other non-legal, non-substantive issues that can make or break the attorney-client relationship.

Finally, assess the client's expectations. Are they realistic? Are there potential pitfalls to the course of action the client wishes to take or the result they want to achieve? Provide options and suggest alternatives that might serve the client's overall objectives more effectively.

 

Productivity Tips

The April 2017 Expert Roundtable post on Law Technology Today is a survey of productivity tips. A group of lawyers (including me) were asked to answer five questions about productivity.

Here's a quick list of the tips I shared on the post:

Write everything down

Develop systems for storing the information you save so you can find it easily when you need it

Don't multi-task!

Use your calendar effectively- schedule time to complete work

Use an editorial calendar to schedule marketing and writing projects

Invest in resources, technology and/or people to improve your productivity

Although we were asked to provide only one or two tips in response to each question, it was hard for me to narrow down my responses. 

One of my favorite productivity tips that didn't get mentioned was breaking large projects down into bite-sized pieces; looking at an entire project can be overwhelming, but tackling only one small piece at a time can help build momentum and confidence. And the project is likely to get done much faster.

Some of my other favorite productivity tips were covered by my colleagues in the roundtable. These tips include:

• Never use your email inbox as your to-do list
• Don't use your email inbox as a place to store communications - file or delete messages
• Set a schedule and stick to it
• Know your "power hours"
• Create workflow checklists
• Do the worst first
• Use automation tools available in programs you already use
• Don't check email constantly!

You can get all of the tips in more detail here, and the post also contains a great list of productivity resources.

 

Need Help Choosing Law Practice Management Software?

Practice management software provides advantages for firms of all sizes, whether the firm is a solo practice or a larger firm with employees at all levels: partners, associates, paralegals, legal assistants and others. In this post, I talked about some of the advantages lawyers can expect when using practice management software.

More recently, in this interview with Law Firm Suites, I mentioned practice management software as one of the tools that lawyers can use to make their jobs easier, saying:

Practice management software can help organize each client’s documents and data, and some even include client-facing portals to allow clients to access some of their documents and information on their own. It can also include timers to help with hourly billing and built-in reminders to help calculate deadlines and statutes of limitations.

But knowing your firm needs to employ practice management software is only the first step. Choosing the right platform or program can be a difficult and daunting decision, particularly with new vendors entering the marketplace.

Luckily, the folks at Lawyerist have done some of the work for you. They have put together a directory of 24 law practice management software programs at lawyerist.com.  And if you're really new to practice management software, scroll to the end of the page to see the definitions of the features discussed in the directory.

The directory not only provides information about each program, including Lawyerist's "best fit" judgment for each program, but there is also a downloadable comparison chart showing the key features of each of the programs included in the directory, which can help you to narrow down your choices to those within your budget that have the features you require. Then you can return to the directory for more detailed information by visiting the product page on Lawyerist for each of the programs on your list (by clicking on the name of the program in the alphabetical directory).

 

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Can Mindfulness and Meditation Make You A Better Lawyer? [Book Review]

The Anxious Lawyer, An 8-Week Guide to a Joyful and Satisfying Law Practice Through Mindfulness and Meditation is a straightforward book which incorporates personal stories, basic introductory information and mindfulness and meditation exercises written specifically for lawyers. *(Full disclosure: I received a free copy of the book from author Jeena Cho in exchange for providing my honest review of the book.)

The authors, Jeena Cho and Karen Gifford, both lawyers themselves, share their experiences with meditation, the different reasons they were each separately drawn to the practice, and how it has helped them in their personal and professional lives, making their lives as lawyers – and as people – more rewarding. Cho is a bankruptcy practitioner in California while Gifford was a litigator and enforcement attorney for the Federal Reserve and is now an investor and advisor on policy and regulatory issues in the financial technology fields.

The legal profession is stressful, and more and more lawyers are suffering. It’s one of the reasons I started my consulting practice, Legal Ease Consulting, Inc., and its corresponding website, Lawyer Meltdown. The phrase, “lawyer meltdown,” resonates with far too many lawyers, who are stricken with the disease of “busyness,” whether it helps themselves, their clients or their firms, or not. (Although this problem is not limited to lawyers—our whole society suffers from busyness—and the lessons and concepts in this book could easily be applied to other professionals).

Meditation and mindfulness are not easy for many lawyers to wrap their heads around, and Cho and Gifford spend time talking about why that might be and how lawyers can challenge the assumptions that may lead to negative or uncomfortable feelings about the practice. I became interested in the book as a way to learn about another set of tools that might be helpful not only to my clients (the majority of whom are lawyers), but to gain a deeper understanding of lawyer meltdown and whether these techniques could help those who occasionally—or often—feel overwhelmed by the stresses of practicing law.

Even if you’ve never considered meditation or mindfulness before, this book is a helpful guide, introducing you to those concepts and taking you through a progression of meditation practices. The authors are adamant that the practice does not need to be long or complicated, particularly for beginners.

Over an eight-week period, the authors explain different meditation and mindfulness types and exercises, including a range of practices, from sitting quietly 10 minutes a day, focusing on the breath, to doing a body scan, or using mantra repetition to spend “less time unconsciously at the mercy of your thoughts and more time in a settled and quieter state.”

Using these practices can help you to connect to the deeper meaning or closely held values in the work you do every day and the reasons you chose the practice of law, rather than listening unconsciously to external forces and judgments which may not reflect your values. Guided meditations can be found on the book’s companion website, theanxiouslawyer.com. The book also provides tips on what the authors call “off the cushion” exercises that anyone can do while going about the business of their daily life and law practice. These tips and strategies may be particularly attractive to lawyers who seek to learn how to cope with everyday stressors of the practice as they arise.

The book is worth reading even if you’re skeptical about mindfulness and meditation in general, or are reasonably certain that you ‘can’t’ do it. The authors dispel some myths about meditation and what meditation really means. For example, it doesn’t mean clearing your mind of all thoughts. And the book cites several studies that show that regular meditation practice is good for your physical, as well as your mental, health. But the parts of the book that may be even more useful to many lawyers than those about “typical” mediation are those that discuss how to translate these practices into your daily life.

One example is recognizing the “moment of choice” – the moment when you become consciously aware of something and have a choice as to how you’re going to react to it. The moment of choice in meditation is the moment when you notice that your mind has wandered or that you’ve gotten caught up in your thoughts; at that moment, you have an opportunity to simply return to your meditation practice and to focus on your breathing. Alternatively, you could choose to beat yourself up for allowing your mind to wander in the first place. Which is more productive?

This concept of the moment of choice can be extended into other areas and other parts of your life outside of meditation. When you recognize that something isn’t going right in your practice, that you’ve taken on a bad client, or that something needs to change, rather than focusing on the negative of where you are, you can choose instead to celebrate the fact that you’ve recognized a problem. This can help free you to focus on finding a solution or determining how best to minimize the damage moving forward, rather than beating yourself up over getting into the situation in the first place. You can choose to dwell on the negative or you can choose to refocus and move forward.

A related concept from the book that sounds simple but is much more difficult in practice is the idea that there are limitations on what lawyers can fix. Accepting that there are aspects of what you do that are out of your control can free you to focus on what you can do to improve a situation, rather than dwelling on the fact that it isn’t how you might like to be. Instead of trying to fix everything, acknowledging that many clients are in crisis and many aspects of their crisis cannot be solved by their legal issue, but might not be so easily separated from it, may result in a better relationship with your clients. Simply allowing them to vent or to tell their story may free them to turn their attention to what is important for the legal case.

Mindfulness and meditation are a form of self-care, which may lawyers are sorely lacking because so much of their focus is on others’ problems and how to solve them. The idea of practicing compassion toward yourself as well as others may be a good solution for constant busyness which may actually reduce productivity. Self-care allows you to refuel your own tank so you are available to give to others.

You may think you don’t have time to meditate – or to read this book – but the authors have broken it down into bite-sized pieces; you only need to read one chapter a week and then follow a daily meditation practice using the techniques or concepts outlined in that chapter. As the holidays approach and another season of hectic, “busy,” activity approaches, it’s an ideal time to start a new habit that will not only help to reduce the stress and anxiety of the holidays, but stand you in good stead in the New Year, possibly offering a new perspective of yourself and your practice. Give meditation – and this book – a try.

 

Choosing Office Space for your Law Firm

Office space is one of the biggest expenses for any law firm. What do you need to know when choosing office space? I was recently interviewed by Law Firm Suites about this very issue. Here is an excerpt from the interview with some of the things I think you need to think about when choosing office space for your law practice:

Does your space need to attract walk-in business? Do you need a full-time office or only an on-demand office space? Is there conference space available? How much demand is there for that conference space? Do you need immediate availability (if a client calls and needs to meet with you right away, will there be meeting space available)?

Are you planning for growth? If so, will your office space be able to grow with you? Is the office look and feel in line with your brand identity? Do the fees and costs fit into your budget and financial goals? What kind of environment promotes your best work? Is it a busy, collaborative environment, or do you require more privacy, peace, and quiet? Consider how your workspace will affect your productivity and how you feel about your work.

Read the full interview here.

 

Should The Bar Ban Sexist or Discriminatory Comments by Lawyers?

The ABA Annual meeting is currently underway in San Francisco, California. One of the items on this year's agenda for consideration by the House of Delegates is a resolution to amend to the ABA Model Rules of Professional Conduct, Rule 8.4, Misconduct. The resolution was the work of several entities within the ABA, including the Standing Committee on Ethics and Professional Responsibility, the Diversity and Inclusion 360 Commission and the Commission on Women in the Profession, among others.

The proposed amendment would add subsection (g) to the Rule, making it professional misconduct for a lawyer to:

engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The New York Times carried a story on the proposal yesterday, including comments from those on both sides of the issue, including those who argue that the Rule violates free speech.

Another article this week, at American Thinker, calls the new rule an attempt by the ABA to impose political correctness on all lawyers,  although one of the objections in the article - that the rule would prohibit lawyers from choosing whom to represent - seems unfounded given the proposed wording of the most recent revision of the proposed rule, which can be found here.

Another concern might be that lawyers will be forced to take on clients that they cannot afford to represent so as not to be seen to violate the prohibition against discrimination based on socioeconomic status. This concern also seems to be covered by the statement that the ability of a lawyer to accept, decline or withdraw from representation in accordance with Rule 1.16. In addition, proposed Comment [5], which states in part, "A lawyer may charge and collect reasonable fees and expenses for a representation."

In New York (as in several other states), Rule 8.4 already contains a subsection (g) as follows:

(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding; 

Read the proposed ABA model rule and new comments for yourself and let me know what you think in the comments. Should the bar prohibit lawyers from these kinds of comments and activities, or do they go too far and impose on lawyers' rights of free speech and association?

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New York Social Media Ethics Guidelines

Last Wednesday, the ABA Journal reported that the New York State Bar Association's House of Delegates would be considering social media ethics guides for lawyers on Saturday during the State Bar's meeting. The story was picked up by several people, including noted blogger and social media expert, Kevin O'Keefe, in his post, "New York Social Media Ethics Guidelines a roadmap or a rabbit hole?" in which O'Keefe questions the necessity for a specific set of guidelines specifically addressing social media and opines that the general rules should suffice to cover these new technologies.

The guidelines being considered appear to be the most recent version of guidelines put together by the New York State Bar Association's Commercial and Federal Litigation Section, but these guidelines are not new (here's a version from 2014). Nor are they particularly surprising. They were developed based on the New York Rules of Professional Conduct and various ethics opinions which have interpreted those rules. While most of the ethics opinions cited in the guidelines are from New York, there are opinions cited from other states where no New York ethics opinions could be found and another jurisdiction's rule was similar.

As O'Keefe says in his post, 

Rather than providing an onramp to social media for lawyers as intended, won’t these guidelines scare the heck out of lawyers? Lawyers don’t understand social media to start with and now we layer on ethics guidelines the relevance of which to particular situations could only be determined by a lawyer with practical knowledge of social media?

Blogging, social media, social networking and the like are learned through trial and error. A lawyers common sense, good judgment and a working understanding of existing ethics rules guide them.

Lawyers have been doing exactly this for the last twenty plus years, beginning with online bulletin board systems, message boards, newsgroups, listservs and virtual communities. Lawyers participated and did not drum up ethics sanctions along the way.

Now it’s blogs, LinkedIn, Facebook, Twitter, YouTube and more. And still lawyers are not going down in ethics’ flames.

But the fact is that attorneys have been inquiring about the rules that govern social media, as evidenced by opinions such as NYSBA Committee on Professional Ethics Opinion 1009, issued in May of 2014, discussing whether tweets in a specific circumstance require a disclaimer under the New York rules, or Formal Opinion 748 of the New York County Lawyers Association Professional Ethics Committee issued in March of 2015 addressing LinkedIn ethics with respect to skills, endorsements and recommendations.

"Should" lawyers be able to use common sense and apply the existing ethics rules to new technologies like social media the same way they have with previous technologies?  Probably. Have most attorneys been able to do so? So far, it seems that way. Will the guidelines scare some attorneys away? Perhaps, but the fact is that the attorneys who are able to use "common sense" to apply the rules to social media, should be able to do the same with regard to the guidelines and still use social media effectively. Indeed, since the guidelines suggest that attorneys should have at least a basic knowledge of social media (since their clients may use it, even if they don't), the guidelines may have the opposite affect - once attorneys learn about these tools, they may be less afraid to use them.

Are specific guidelines necessary? Probably not. Will they be helpful to many attorneys? That remains to be seen; I haven't seen any reports about the action taken by the House of Delegates last weekend, and a link on the Home page of the NYSBA website that purports to lead to a recent report on Social Media Ethics Guidelines appears to lead to an unavailable page. But New York isn't the first or only state to issue similar guidelines about social media use for attorneys - take, for example, Pennsylvania.

In New York, even if adopted, the guidelines would be just that - guidelines - just as the ethics opinions are advisory and only issued based on the specific circumstance in the inquiry presented. Whether an attorney can or will be disciplined as a result of social media use (or misuse) remains to be seen, but the disciplinary authority often relies upon guidelines and ethics opinions such as these, so like it or not, New York attorneys need to take heed.

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New York to Move to Uniform Bar Exam

Despite opposition from many lawyers and bar associations throughout the state, Chief Judge Jonathan Lippman announced today that New York State will begin administering the Uniform Bar Exam (UBE) beginning in July of 2016.

According to this article, Lippman made the announcement at a Law Day celebration in Albany, claiming that the adoption of the UBE will allow New York to remain the gold standard for the profession, and stating that it will allow New York law graduates greater portability and flexibility of their law licenses.

The article goes on to say that Chief Judge Lippman argued that the new examination will "be more comprehensive in testing state-specific knowledge." This is difficult to comprehend, as the existing New York State Bar Examination, written by lawyers in New York State, includes New York State-specific essay questions, as well as New York multiple choice questions. By contrast, the new examination will include only essays testing general legal knowledge (not specific to New York State, nor written by New York laweyrs), but will retain the 50 New York multiple choice questions.

Interestingly, the article also indicates that the new exam "will also include a separate, New York-specific online course, which will include videotaped lectures." This is particularly interesting since New York State currently does not permit continuing legal education credits for young lawyers (those admitted less than two years) to be taken online or by video or audio recordings - all credits must be taken live. Although I haven't seen details of what the new "online course" will entail, it seems odd that this would be an accepted method by which lawyers will now learn New York State-specific law prior to admission to the bar, and that, having taken this online course, lawyers would not be tested on their proficiency in what is taught in those courses. 

Additionally, while the claim is that adoption of the UBE will allow for greater "portability" of a New York law license, the fact remains that only 14 other states thus far have adopted the UBE, and none of the largest states are among them. While proponents of the UBE may surmise that other states will follow New York's lead, there is no guarantee that this will occur. Meanwhile, lawyers who wish to enter New York's legal market from foreign jurisdictions will have an easier time competing with New York educated lawyers for desirable New York jobs - arguably with very limited knowledge of the quirks of New York law, including the CPLR.

It is difficult to reconcile the claims that the UBE was instituted in part as a reaction to the fact that "employment prospects are still grim" for recent New York law graduates (a Lippman quote from this New York Times article) with the inevitable fact that adopting the UBE will increase the competition for New York legal jobs. New York educated lawyers who pass the UBE may find it easier to transfer their licenses to states like Alabama, Kansas, Idaho, Utah, North Dakota and Montana (all of whom have adopted the UBE), but with the crippling debt faced by many law graduates today, will the ability to move to these states be a real economic benefit? 

And what impact will the lack of New York educated lawyers or lawyers with little knowledge of New York law have on the representation of clients?

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Women's History Month: 8 Tips for Managers

March is women's history month and this year's theme is "Weaving the Stories of Women’s Lives." Is disparate treatment in the workplace an element of women lawyers' (and other professionals) stories?

I came across this presentation entitled, "LeanIn Together: 8 Tips for Managers" that describes how men and women are treated differently at work and how managers can address those issues. I've decided to share it in honor of women's history month.

Do you see these kinds of things still happening in your workplace?

Are female lawyers treated differently and do they have more trouble getting promoted than men?

Is the fact that we need a "Women's History Month" at all evidence of disparity? 

Do these issues need to be addressed in order to create future women leaders in the legal profession and elsewhere?

Let me know your thoughts in the comments!

#LeanInTogether: 8 Tips for Managers from Lean In

 

You can get the complete tips at LeanIn.org