Legal Ease Blog

NY Announces Temporary Authorization Program for Recent Law Grads

In this week that NY law grads were originally scheduled to be taking the bar exam, the New York State Court of Appeals (the highest court in the state) has announced a revision of its rules to temporarily authorize qualifying graduates of ABA-accredited law schools to practice law in New York under supervision pending their admission to the bar. Supervising attorneys must be admitted to practice in New York for at least three years and must be in good standing.

To be eligible, an applicant must be qualified to take the New York bar exam, employed to practice law in New York, and not have failed a bar exam in the United States previously, in addition to having graduated from an ABA-accredited law school.

Those wishing to be granted this authorization must submit an application to the Appellate Division in the Department in which they anticipate being admitted to the bar. The application must include an affirmation in support from a representative of the employer who is admitted to practice law in New York, as well as the application form signed by the applicant seeking temporary authorization. All signatures are required to be by hand (as opposed to electronic signatures).

There are some limitations on what attorneys authorized to practice under the new rule will be able to do.  For example, an attorney authorized under this rule cannot conduct a deposition (examination before trial) or appear in court without the presence of the supervising attorney who is available to supplement or correct any written or oral statement or action made by the authorized attorney. If the authorized attorney appears without a supervising attorney, the matter cannot proceed.  There is an exception, however, for routine calendar calls - the authorized attorney may appear without a supervising attorney as long as a supervising attorney is immediately available to appear if necessary.

When an authorized attorney is appearing in any of the above instances, notice must be given to the judge before whom the appearance will be made. An authorized attorney must obtain prior Court approval to appear before the Court of Appeals or the Appellate Division of the Supreme Court. 

In addition, any legal or litigation documents prepared or drafted by an authorized attorney must be approved by a supervising attorney, and the supervising attorney's name must appear on the document. If a signature is required under 22 NYCRR 130, the supervising attorney is required to sign.

Authorized attorneys under this part are not authorized to open, maintain, or be a signatory on any attorney escrow account, and may not make a final disposition of any matter without prior approval of a supervising attorney.

Authorized attorneys are subject to the same disciplinary authority as practicing attorneys who have been admitted to the bar. Termination of authority under this part can occur in a number of ways, including revocation of the part, or revocation of the attorney's authority for good cause, as well as if the authorized attorney fails a bar exam in the United States or fails to sit for the Uniform Bar Exam by August 2021.

You can find the requirements here. You can see a copy of the amended Rule 524 here.

Getting Ready for ABA TECHSHOW 2019

We're just about two weeks away from ABA TECHSHOW® 2019 to be held at the Hyatt Regency Chicago beginning on February 27, 2019, so it's time to get planning for the event! This year's ABA TECHSHOW features over 60 educational sessions in 16 different tracks, an EXPO Hall filled with vendors with all sorts of legal tech products to help you in your practice, as well as networking and social events, wellness and exercise breaks, and more. 

I'm particularly excited about this year's ABA TECHSHOW because although I planned to attend in both 2017 and 2018, factors beyond my control prevented me from attending. That means I missed seeing a lot of my friends who I only get to see at ABA TECHSHOW, and I didn't get to experience the first year at the new venue at the Hyatt, so I'm looking forward to seeing the new setup.

Here's a preview of some of what you can expect at this year's event, and some of what I plan to do this year:

Women of Legal Tech Summit

While not an official ABA TECHSHOW event, the Women of Legal Tech Summit, held at the Chicago Kent College of Law at Illinois Institute of Technology, is a one-day event featuring a series of fast-paced five-minute sessions in the morning, followed by a keynote presentation by Kimberly Yuracko, Dean of Northwestern Pritzker School of Law. The event's luncheon will honor this year's class of the ABA Legal Technology Resource Center (LTRC)'s 2019 Women of Legal Tech*.

In the afternoon, Caitlin Moon of Vanderbilt Law School will lead an interactive design thinking workshop. The event ends at 4 p.m., so you'll have plenty of time to get to the Hyatt for the startup competition.

This promises to be an enlightening and exciting event, and I am looking forward to meeting our 2019 LTRC Women of Legal Tech in person!

Startup Competition

Fifteen new legal startups will be showcased before the welcome reception on Wednesday night. These startups will have an opportunity to make their pitches to ABA TECHSHOW attendees who will be able to choose their favorite. All of the startups will remain in the EXPO Hall throughout ABA TECHSHOW, so if you miss the Wednesday competition, don't worry - just head on over to Startup Alley to see them for yourself!

The startup competition was first introduced to ABA TECHSHOW in 2017, so this is an event I haven't had the pleasure of seeing before - I'm looking forward to seeing what these innovators are doing in legal tech and what we can look forward to in the future!

Networking and Social Events

To me, one of the best parts of any conference is the networking opportunities these events provide. It's a great chance to catch up with old friends and contacts and to meet new people. The law, like any service business, is all about relationships, so take advantage of all of the networking events ABA TECHSHOW provides - they are well worth the effort. 

Start off on Wednesday evening with the welcome reception in the EXPO Hall and get a sneak peek at the exhibitors (and the Law Practice Division bookstore) while mingling with other ABA TECHSHOW attendees.

Attend one of the "Taste of TECHSHOW" dinners on Thursday or Friday night - sign up to attend one of these dinners (everyone pays their own way) at a great Chicago restaurant. Each dinner is hosted by a tech expert and is based on a technology topic.

Take advantage of lunch and EXPO Hall breaks to meet vendors and other ABA TECHSHOW attendees, too.

ABA TECHSHOW Communities

Last year was the first year that Communities were introduced, so I haven't had the opportunity to experience them myself yet, but the idea of Communities is to make it easier than ever for you to meet new people and exchange ideas with others who share your interests or your practice areas. You can choose your Communities in the ABA TECHSHOW app, attend Community meetups and hear lectures on your topics of interest. I am interested to see how Communities add to the ABA TECHSHOW experience.

Educational Sessions

As always, ABA TECHSHOW is packed with so many educational sessions, it's hard to choose which ones to attend. This year's event includes 16 different "tracks" - you can choose to follow one full track or choose individual sessions from many different tracks. Try not to get overwhelmed, and remember, as an attendee, you will have access to all of the materials from every one of the programs, whether you attend them or not - and the presenters' PowerPoint presentations will be available to you after the event.

Tracks for this year include the "How to" track, the Mac track specifically for those you use Macs in their practices, an expanded academic track, a track specifically focused on litigation, one for advanced IT, another for core technology, a solo and small firm track, and a track devoted to technology trends, among others.

When choosing which sessions to attend live at the show, consider whether:

• You will benefit from hearing about in person and/or being able to ask questions of the presenters, as opposed to topics that you think written materials will suffice to provide you with the information you need
• The presenter is a particularly good speaker or well-known expert on the topic that you may not have other opportunities to see live
• The presentation includes a live demonstration of technology that you would like to implement in your practice 
• The topic is one which you likely won't see at any other event
• The presentation covers cutting-edge technology or ideas that you want to be one of the first to learn about
• There is an interactive component to the session that will enhance your learning and that you can't get from written materials alone

This year's show includes a Saturday morning plenary with some key take-aways from many of the sessions, so if you want just the highlights of a particular session and plan to be at the show on Saturday, attending the plenary might give you all of the info you need for a specific session, making your choices on Thursday and Friday a bit easier.

I know I will have a difficult time choosing which sessions to attend this year, but some of the topics I'm interested in this year include: automation tools, artificial intelligence, technology competency, using technology to improve the client experience, bitcoin and blockchain, design thinking, and technology training in law schools.

Keynote Address

This year's Keynote address, scheduled from 1-2 p.m. on Friday, will be presented by Betsy Ziegler, CEO of tech incubator 1871 will discuss how advancements in technology will impact the future of the legal profession and the world.

Ranked as the number one university-affiliated tech incubator in the world in 2018, 1871 was created to support Chicago’s digital startup community. According to its website,

1871 is the home of nearly 500 early-stage, high-growth digital startups. Located in The Merchandise Mart, this 140,000 square foot facility is also the headquarters of nationally recognized accelerators, industry-specific incubators, tech talent schools, the Illinois Science and Technology Coalition — the state’s leading technology advocate, a number of Chicago-based VCs, and satellite offices for Northwestern University, University of Illinois, University of Chicago, Loyola University Chicago, Illinois Institute of Technology, Trinity University, and DePaul University.

Immediately following the keynote, Betsy will be available to talk to at the "meet the keynote speaker" event in the EXPO Hall from 2-3 p.m.

ABA Law Practice Division Bookstore

The ABA Law Practice Division will be showcasing both its latest titles and tried-and-true practice favorites at this year's ABA TECHSHOW. The book booth will be centrally located on the lower level. All full Conference registrants will receive a $10 “LP Book Buck” to use toward a book purchase. Don't let this $10 gift go to waste - LP publishes innovative books focused on practice management, marketing, finance, and technology. 

Some of our latest tech titles* include:

• The 2019 Solo and Small Firm Legal Technology Guide
• Macs in Law: The Definitive Guide for the Mac-curious, Windows-using Attorney
• Microsoft Office 365 for Lawyers, Second Edition
• The Lawyers' Guide to Collaboration Tools and Technologies: Smart Ways to Work Together
• The Ultimate Guide to Adobe Acrobat DC

Recent non-tech titles include:

• Strategic Networking for Introverts, Extroverts, and Everyone in Between
• Fix It: How History, Sports and Education Can Inform Diversity, Inclusion, and Equity Today
• The Best Lawyer You Can Be: A Guide to Physical, Mental, Emotional and Spiritual Wellness
• The Lean Law Firm: Run Your Firm Like the World's Most Efficient and Profitable Businesses

To see more of our titles, or to check out any of the books above, don't forget to stop in to the LP book booth - many of our authors will be stopping by to chat (or visit the ABA website to see our available publications)!

EXPO Hall

In addition to the LP Division bookstore, the EXPO Hall features hundreds of exhibitors with almost every kind of legal technology imaginable, from practice and document management software to virtual receptionists and everything in between. The vendors are there to answer your questions and demonstrate their products, so don't be afraid to ask questions. Some of the vendors will be presenting lunch and learn sessions as well in the EXPO Hall. And if you're into 'swag,' take a spin around the EXPO Hall to see (and/or collect) this year's give-aways.

Whew! As you can see, there's lots to do and see at this year's ABA TECHSHOW - and this doesn't even cover everything! Whether you're a first-time attendee or you're a TECHSHOW veteran, you might want to check out the TECHSHOW First Time Experience Guide which includes helpful tips to help you plan your TECHSHOW experience. Make sure to download the TECHSHOW app, follow the social feeds and the TECHSHOW blog, peruse the schedule, and make a plan before you arrive - hope to see you there!

*I am a member of the Board of the Legal Technology Resource Center and helped to choose this year's class of Women of Legal Tech; I am also a member of the Law Practice Division's Publishing Board (and former Chair), which is responsible for publishing Law Practice books.

Agreement with NYS Attorney General Makes Avvo Ratings More Transparent

The New York State Attorney General's office and legal directory/lawyer rating service Avvo came to an agreement last month that Avvo will make its lawyer ratings more transparent. The agreement came after the Attorney General's office conducted an investigation.

Lawyers have long complained that the algorithms behind the ratings Avvo gives to lawyers on its site were a secret, and lawyers could only guess what to include on their Avvo profile to improve their Avvo rating. Lawyers who chose not to participate on the site or "claim" their Avvo profiles were disturbed by the fact that they were assigned an Avvo rating even if they did not wish to participate on the site. 

If a lawyer decided not to claim their Avvo profile, the information available about the lawyer on the site, including the Avvo ranking and disciplinary information, would be compiled based on publicly available information from sources not disclosed on the site. The site also did not advise users how often the information contained on the site was updated.

In addition to its lawyer directory, ratings and reviews, Avvo also provides legal information through legal guides and articles on the site and makes legal forms available to the public. But before the AG investigation, little information was available about the origin of the forms that had been uploaded.

As a result of the Attorney General's investigation, Avvo has agreed to pay a $50,000 fine and to make some changes to the site.

Now, in order to be included on the Avvo site, all legal forms must be reviewed by a lawyer admitted to practice in New York with relevant experience in the area of practice the form is used for.

 Avvo agreed to provide more information to both consumers and lawyers about how their ratings are established, to include a notification that lawyers who "claim" their Avvo profiles and enter additional information receive higher rankings on the site, and they will no longer describe their ratings as "unbiased."

Avvo also agreed to advise users that Avvo does not produce the lawyer's profile and rating based on all relevant data that could be compiled about the lawyer. Lawyers who do not participate in the site will no longer be issued an Avvo rating.

The Avvo site includes a page entitled, "What is the Avvo Rating" which, as of today's date, states in part,

Avvo does not provide a numerical rating for profiles that have not been claimed by that attorney.

Attorneys always have the opportunity to add information to their profiles, and those attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.

Keep in mind that these ratings speak to a lawyer’s background, but do not evaluate their knowledge of the law, past performance on individual cases, personality, or communication skills. These are elements that the Avvo Rating cannot evaluate, but can be better described in the client reviews and peer endorsements found on an attorney’s profile.

In addition, following the investigation, lawyers in New York will not have to first "claim" their Avvo profile and agree to Avvo's terms of service before they can change incorrect information listed on their Avvo profiles. The site lists contact information for lawyers to use to make the necessary changes.

Since I am not currently practicing law, I have not claimed my Avvo profile. I noticed that the site had me listed as a "construction and development" lawyer, which would not even have been accurate when I was practicing law. I used the listed email address to contact Avvo to have them remove the incorrect practice area, and I received an email response within a very short period of time.

I recommend that all NY lawyers review their Avvo profiles and to make changes to ensure that the most accurate information is available on the site, even if you do not want to participate or actively use the site to attract clients.

TECHSHOW 2018 Round-Up

Ah, the best-laid plans...

If you've been reading, you know from my last post that I was looking forward to attending the ABA TECHSHOW earlier this month. Unfortunately, the weather interfered, and a Nor'Easter, accompanied by snow, resulted in canceled flights and an inability to travel to the conference again this year.

I did manage to keep up with a bit of what was happening with the official ABA TECHSHOW app, Twitter, and my colleagues who were in attendance and were kind enough to report their experiences. If you want to find out what you (and I) missed, here's a roundup of some great information and posts about the conference from those who were actually in attendance: 

 

First, about that app - read Niki Black's post at Above The Law about her experience with the TECHSHOW app.

 

The ABA Journal covered a whole host of TECHSHOW related topics and sessions - you can browse their list of TECHSHOW related articles here. Attorney at Work did an interesting article about the conference, beginning with its Start-Up Alley and ending with the ever-popular 60 in 60 tips session. (For more on Startup Alley, check out this post from the Law Technology Today blog).

 

Or check out this Attorney at Work post, which includes a more comprehensive overview of TECHSHOW.

 

There are also lots of posts over at LexBlog covering this year's conference on Techshow Monitor. 

 

To get an expert look at TECHSHOW trends, check out Carolyn Elefant's post at MyShingle, where Carolyn reflects on trends she sees at TECHSHOW, from the introduction of chatbots and blockchain to the growth of cloud platforms.

 

Of course, I can't resist anything both TECHSHOW and LinkedIn related. On the Road with Legal Talk Network talked with Dennis Kennedy, my co-author on LinkedIn in One Hour for Lawyers, and Chuki Obiyo from LinkedIn at TECHSHOW. This podcast gives some great tips on how to use LinkedIn and what features might help make a premium subscription worthwhile, depending on what you want to use it for.

 

As the current Chair of the ABA Law Practice Division's Publishing Board, I'm particularly interested in what's happening with our latest book releases and what our authors have to say about their topics. To get a bit of a preview about our newest titles, take a listen to another Legal Talk Network podcast with some of our authors, including Rocket Matter's Larry Port and his co-author Dave Maxfield, whose book, The Lean Law Firm, was the best-seller at this year's TECHSHOW, as well as co-authors Tom Mighell (TECHSHOW 2018 Co-Chair) and Dennis Kennedy  who talk about why collaboration tools are important and how to implement them in their practice. 

 

If, like me, you don't want to miss out on TECHSHOW 2019, put the dates on the calendar now - the conference will be held at the Hyatt Regency Chicago again, but it's a bit earlier this year - it is scheduled from February 27-March 2, 2019. Let's hope it doesn't snow again...

ABA TECHSHOW 2018 Preview

 

There is lots of great stuff happening at this year's ABA TECHSHOW® outside of the educational sessions and the Expo Hall with the latest tech and gadgets for lawyers, from new TECHSHOW communities to 12 step meetings, social events and more. Here are a few highlights for next week's Conference and Expo:

 

Where to Start

If you're a first-time attendee, you might want to check out the experience guide which will walk you through how to plan your TECHSHOW experience.

 

Conference App

Don't forget to download the conference app, an indispensable tool for the conference. The app not only allows you to keep track of educational sessions you want to attend (and includes all materials for those educational sessions and book suggestions for further reference), but it acts as your daily calendar for the show. If you "favorite" the sessions you want to attend, those sessions will appear on your TECHSHOW schedule view and in your Favorites so you can find them easily and ensure you won't miss the sessions you really want to attend.

 

Expo Hall

 

Plan between-sessions breaks as much as you plan which educational sessions you would like to attend - the Expo Hall is also a learning experience. You may get to test-drive a new software program or product you're thinking about, or take advantage of the opportunity to visit the booths of the products you already use - many of the TECHSHOW vendors will be happy to give you a quick tutorial on programs you already have so you can learn the newest features and the best way to use the product to make your practice as efficient as possible. And make sure you check out all of the goodies TECHSHOW vendors will be giving away if you visit their booths!

 

Networking Opportunities

One of the best things about ABA TECHSHOW is the opportunity to meet so many other people, from vendors to experts, authors, like-minded attorneys, consultants and more. Some of my best TECHSHOW experiences and opportunities have come about because of new people I met at the show - and some of those people have become close friends over the years! Sign up for a TASTE OF TECHSHOW dinner, attend the welcome reception and cocktail party, and introduce yourself to people at the sessions.

New Publications for Your Practice: LP Bookstore

 

Visit the LP booth and the Law Practice Division bookstore in the Expo Hall to see all of the latest publications from the Law Practice Division. As Chair of this year's LP Publishing Board, I can attest to the fact that there are some fantastic quality publications that will make their debut at TECHSHOW this year - technology books are included, but there are also recently released books on management, marketing, and law firm finance. Don't miss the opportunity to take a look at these books and take them home at a discount with your TECHSHOW book bucks!

 

Some of our latest titles include:

 

• Macs in Law: The Definitive Guide for the Mac-Curious, Windows-Using Attorney 
  Microsoft Office 365 for Lawyers, Second Edition 
• The 2018 Solo and Small Firm Legal Technology Guide 
• Fastcase: The Definitive Guide 
• The Ultimate Guide to Adobe Acrobat® DC 
• The Lawyer's Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, Second Edition
• The Lean Law Firm: Run Your Firm Like The World's Most Efficient and Profitable Businesses 
• Positive Professionals: Creating High-Performing Profitable Firms Through the Science of Engagement 
• How to Draft Bills Clients Rush to Pay, Third Edition
• The Millennial Lawyer: How Your Firm Can Motivate and Retain Young Associates
• The Full Weight of the Law: How Legal Professionals Can Recognize and Rebound from Depression 
• Lawyers as Managers: How to Be a Champion for Your Firm and Employees 

 

Can't make it to this year's ABA TECHSHOW in person?

 Not to worry! There are still ways to get great information from the Conference and Expo. Watch social media for the @ABATECHSOW twitter feed and the #ABATECHSHOW hashtag. Keep your eyes peeled for the TECHSHOW Today video interviews (I'll be co-hosting a couple with Dennis Kennedy). 

 

Even if you can't attend yourself, you can view the PowerPoint presentations from each of the sessions on the ABA TECHSHOW site some time after the Conference and Expo is over.

 

Want more great tips for your law practice? Sign up for the Lawyer Meltdown newsletter and get tips in your inbox.

 

3 New Ethics Opinions Guide New York Lawyers on Marketing Issues

The New York State Bar Association Committee on Professional Ethics issued three opinions within the past several months that provide guidance for New York lawyers on marketing issues. Opinion 1129, issued in July 2017, addresses attorney newsletters. Opinion 1131, covering payment for marketing or lead generation fees, and Opinion 1132, discussing the use of Avvo Legal Services, were both issued on August 8, 2017.

Future posts will discuss these opinions in more detail, but here are the basics, with links to the full opinions for your review. 

Attorney Newsletters and the Advertising Rules

Opinion 1129 addresses whether attorney newsletters must comply with the attorney advertising and solicitation rules contained in Rule 7.1 and 7.3, where the newsletter would be distributed to customers of one of the firm’s former clients and would include information provided by the former client. It also discussed whether it would be permissible for the firm to send a newsletter that would be partially paid for by the former client.

The opinion clarifies that a newsletter which provides information about the lawyer or law firm, including information about the firm’s achievements, cases, or personnel, will be considered to have a primary business purpose, and will qualify as advertising. In this case, since the newsletter was being sent to a targeted group (customers of the third party), if the newsletter were considered advertising, it would also be considered a solicitation and must comply with both Rules 7.1 and 7.3.

The opinion found that it would be permissible for the firm to include information supplied by a third party in a newsletter, but it would be the responsibility of the firm to ensure that the newsletter did not contain statements or claims that were false, deceptive or misleading.

Finally, the committee found that it would be permissible for the law firm to accept payment to defray the costs of publishing the newsletter if the firm did not receive payment for referring clients to the third party, and the newsletter did not include an express or implied recommendation of the third party’s services. But the opinion cautioned that the law firm might consider whether taking payment from a third party to help with the cost of publishing the newsletter might preclude the firm from representing clients in transactions involving that third party due to a conflict of interest.

Payment of Marketing Fees for Lead Generation

Opinion 1131 addresses payment for potential client leads to a for-profit website on which potential clients provide contact information and agree to be contacted by a participating lawyer. The Committee found that such payments are permissible if the selection of the lawyer is not based on an analysis of the potential client’s legal issue or the lawyer’s qualifications or ability to handle that problem, the service does not purport to recommend the lawyer (either directly or by implication) and the website through which the leads are generated complies with the requirements of Rule 7.1 on lawyer advertising.

In short, “if the Service complies with the advertising rules and the lawyer’s payment is reasonable for that form of advertising, a lawyer’s using the Service will not run afoul of Rule 7.2 unless the Service is deemed to “recommend” the lawyer.”

It is worth noting that Opinion 1131 overrules – at least in part – Opinion 902 issued in 2012, in which the Committee held that a lawyer could not pay a marketing company a fixed fee each time the marketer made an introduction to a potential client. Opinion 1131 finds that payment of a marketing fee is permissible if “the lawyer is paying the Service a fixed sum to participate, unrelated to the lawyer’s retention or the amount the lawyer charges in legal fees.”

Use of Avvo Legal Services

In contrast to Opinion 1131, Opinion 1132 finds that the marketing fee lawyers must pay to participate in Avvo Legal Services constitutes an improper payment for a recommendation, which violates New York Rule of Professional Conduct 7.2(a). While New York has found that payment of fees for other lead generation services is not prohibited, the Committee relied on two factors in distinguishing Avvo Legal Services from those other services: the use of Avvo’s rating system and the way that rating system is marketing to consumers, and Avvo’s “satisfaction guarantee.” According to the opinion, the combination of these factors implies that Avvo recommends all lawyers who participate in Avvo Legal Services and that they are “highly qualified.”

 

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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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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 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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Lawyers and Technology - ABA TECHSHOW 2015

This week is the annual ABA TECHSHOW, the premier technology conference for lawyers taking place in Chicago. TECHSHOW is a combination of educational sessions offering continuing legal education credits, an exhibit hall featuring the latest technology available to help you run your practice, and social events offering opportunities to meet lawyers from all over the country who are learning to use technology to improve their law firms.

In addition to all of this, TECHSHOW provides attendees with the opportunity to meet ABA Law Practice Division authors in meet the author sessions and to purchase LP books at a discount.

This year's keynote speaker is Nick Carr, columnist and best-selling author on technology and culture.

I have a busy schedule for TECHSHOW this year - here's where I'll be if you'd like to take some time to chat:

Thursday, April 16:

12:30-1:45       State of Legal Technology
                            I'll be joining some of my colleagues from the Legal Technology Resource Center discussing the results of this year's technology survey during the State of Legal Technology Luncheoon

2:00-3:00    LinkedIn's Next Level: Getting More Return on Your Networking
                        Dennis Kennedy and I will be talking about how lawyers can get more out of their LinkedIn use. This presentation is a follow up to our basic LinkedIn program and is designed to give those with a basic knowledge of LinkedIn some power strategies to ramp up their networking. If you're still a LinkedIn newbie, you can see a version of our basic presentation that we just did earlier this month for the ABA here - not only will you get the video download, but you'll also get a free copy of the e-book version of LinkedIn in One Hour for Lawyers, Second Edition.

3:00-4:00    Shaping Your Narrative - Online Reputation Management
                                In this program, Gyi Tsakalakis and I tackle the issue of online ratings and reviews sites: why lawyers need to be aware of them, how to improve your positive ratings and reviews, what to do if you receive bad reviews online, and we'll cover some of the ethics issues involved.

Friday, May 17

10:00-12:00    Concierge Booth
                                    Friday morning I'm manning the Concierge Booth with some of my colleagues from the Legal Technology Resource Center. Come say hi!

1:45-2:30        Meet the Author: How to Do More in Less Time
                                 My latest book, How to Do More in Less Time: The Complete Guide to Increasing Your Productivity and Improving Your Bottom Line, was recently released, and my co-author, Dan Siegel and I will be talking about the book during this meet the author session on Friday afternoon, followed by a book signing at 2:30. If you've ever felt overwhelmed with all of the tasks you need to accomplish, had difficulty delegating, or wished you could get better use from the software programs you use every day, this book might be for you. Come learn some of our best tips! 

While at TECHSHOW, I'll also be attending many of the social events and receptions - if you've never been to TECHSHOW, don't miss the TASTE OF TECHSHOW Dinners - dutch treat events at some of Chicago's best restaurants, hosted by our speakers. I may make an appearance on Legal Talk Network as well. All in all, it should be a fantastic event - hope to see you there!

Finally, I want to say thank you to Heidi Alexander for her post on Women You Need to Know in Law and Technology - she's put together a fantastic list of women in technology, and many of those on her list are current or past ABA TECHSHOW speakers and authors. I'm flattered to be included on her list!

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