Month: June 2019

Some lawyers were concerned when the Model Rules of Professional Conduct were changed to include a comment that competence as a lawyer included an appreciation of “the benefits and risks associated with relevant technology.” Now 31 states have adopted some version of this language in comment 8 to Rule 1.1, according to legal technology journalist Robert Ambrogi who maintains regularly updated information about the comment adoption on his blog. Many of the legal technology community thought this comment was so obvious in today’s times that it was difficult to understand those who object to the comment. Reading an article in The New York Times this summer titled Thermostats, Locks and Lights: Digital Tools of Domestic Abuse made me think about how the lawyer who works in the family law arena faces a vastly different set of technology concerns (and competencies) about client safety and privacy compared to just a few years ago when few were familiar with the Internet of Things. But there’s more to this than just telling a client to change their WiFi password. So I wrote Technology Competence for the Family Lawyer as both a thought exercise and a guide for family lawyers. The question I attempted to answer is broad: What do you need to tell today’s family law client about what that should be done to digitally protect oneself in the event of a separation or divorce, especially when the client may not have set up or be very familiar with the technology they are using? I’m sure I missed something but am pleased with the result. And while asking for social media shares sometimes comes across as self-promoting, I believe that there are many family lawyers that would like to read this column. So feel free to share or ask us about reprint rights.

You may not have heard of something called the Data-Driven Ethics Initiative. The organizers say it is an initiative to gather and use data to completely overhaul and improve the Rules of Professional Conduct to better benefit the public. Skeptics say it is an effort primarily funded by online legal tech companies with goals that are more tied to their business development plans than reform. The organizers say on their website that they have law school deans onboard (note the plural.)

As you can surmise, like every trained lawyer, I am a bit of a professional skeptic and that is particularly true where legal ethics rules are concerned.

So it seemed like a good idea to invite one of the two named organizers, Erin Gerstenzang, to be a guest on our Digital Edge Podcast episode, The Data-Driven Ethics Initiative. I just met Erin for the first time at ABA TECHSHOW 2018 and was so impressed by one of her presentations that I included some of her talk in my column A Brief Recap of ABA TECHSHOW 2018 in the Oklahoma Bar Journal. During the podcast Erin discussed her view of the challenges that good lawyers face today with legal ethics rules and how rule changes might better serve the public. I encourage you to listen to the podcast.

I’ll give Erin’s co-organizer (?) Megan Zavieh (who I also met for the first time at ABA TECHSHOW 2018) some equal time by pointing to her recent article on the Initiative Sweeping Change Is Needed to the Model Rules (and It Is Not Scary).

The Initiative’s rather austere website states: “We will kick off this initiative the week of May 22, 2018, from Las Vegas where we will be attending Avvo’s Lawyernomics conference. We will publish the most current draft – our MVP- on October 4, 2018, from New Orleans, when many of us will be attending the Clio Conference.” That’s 135 days to gather data and produce a draft, including weekends and holidays. So I guess most of us will be waiting until then. Personally I will attempt to keep an open mind because I do appreciate how the technology-fueled changes of today can make it challenging to apply the rules to emerging technology.

But I’d certainly encourage everyone involved with the Initiative to lobby for transparency. Who is providing funding? It’s not really believable that an all-volunteer team, especially if many of the members are busy attorneys, can produce such significant results during such a short span over the summer, even if they work all the weekends. But maybe I misinterpret this MVP label. If it is a roadmap of what needs to be examined, then it certainly could be a valuable conversation starter. We shall see.

Right before our Oklahoma Bar Association Solo & Small Firm Conference kicks off, the OBA announces six new practice management member benefits.

(June 6, 2018) Six new member benefits to help Oklahoma lawyers better manage their practices have been announced by the Oklahoma Bar Association. Members who sign up for new subscriptions will receive discounts to Clio, CosmoLex, MyCase, PracticePanther, Rocket Matter or Zola Suite, all cloud-based practice management services for law firms.

“Supporting Oklahoma lawyers as they incorporate modern technology tools into their law practices is an important goal of the OBA. Better efficiency and security tools benefit both lawyers and their clients,” said OBA President Kimberly Hays of Tulsa. “Different solutions focus on different aspects of law practice, which is why the OBA provides free consulting for Oklahoma lawyers who are shopping for a practice management tool.”

Practice management solutions organize digital copies of all client documents, lawyer’s notes, calendar information, pending tasks and all other client information using easy-to-access dashboards. Lawyers can review documents, record time, assign tasks to others in the firm and do many other functions, all within these applications. These tools also provide online client portals for the secure sharing of information with clients.

“There are many available and affordable tools to assist lawyers. While there is a learning curve, the time savings in day-to-day operations becomes apparent rather quickly,” said OBA Practice Management Advisor Darla Jackson.

As part of the vetting process, each vendor demonstrated their product and provided access to complimentary accounts to allow a hands-on preview experience. Additionally, each product was reviewed by OBA Member Services Committee members.

Jim Calloway, OBA Management Assistance Program Director, said, “These cloud-based services were designed to protect confidential client information and to provide both better security for client data and better remote access than many other methods.”

OBA members can find brief descriptions of the practice management solutions, their features and access codes for discounts by logging in to MyOKBar and accessing Practice Management Software Benefits at the bottom of their Profile page.

The 18,000-member Oklahoma Bar Association, headquartered in Oklahoma City, was created by the Oklahoma Supreme Court to advance the administration of justice and to foster and maintain learning, integrity, competence, public service and high standards of conduct among Oklahoma’s legal community.

ABA TECHSHOW was held March 8 – 10, 2018. So the column, A Brief Recap of ABA TECHSHOW 2018, by me and OBA PMA Darla Jackson is not exactly “hot news.” Such is the result of print publication deadlines sometimes. But only a few of the previous TECHSHOW 2018 reviews mentioned the interesting relationship between TECHSHOW exhibitor Logikcull and the Ramones or provided you with the Electronic Discovery Reference Model chart. And I know this is the only recap which quoted Tom Mighell on “non-records.”  So hopefully this recap was worth the wait. While I am tempted to describe this column more, it is probably best if I pause and just let you read our column. The next ABA TECHSHOW is scheduled for February 27 – March 2, 2019 is Chicago. Mark your calendar now.

Keeping the customer satisfied should be an important of every business today. This includes law firms, even though we refer to our customers as clients.

My column in the Oklahoma Bar Journal, Keeping the Customer Satisfied, outlines some ideas to do just that. One of the first rules is to not do things that aggravate the customer, like having them waste time in the the law firm’s waiting area for a long time after their scheduled appointment.

With some clients the challenge is helping them understand clearly the challenges they faced and benefits they received. As I noted in the column: 

“With medical services, a sick patient can become well or a broken bone will heal. With legal services, successful delivery of the services is often couched in terms that were previously not familiar to the client like decrees, court orders, injunctions, closings and the like.”

Take this opportunity to read these ideas and then think about what you can do to improve client satisfaction.

As an additional bonus today, here is some appropriate music for your inspiration as you consider how to make your current clients “clients for life.”

There have been a number of recent conferences focused on the future of law practice and the delivery of legal services. It’s too bad I can’t attend them all!

Someone recently reminded me of a time I was invited to speak to the ABA’s Bar Leadership Institute, the annual training for bar presidents and presidents elect. Several of us were asked to do Ted-style short talks on the future of law practice. If talking to a large gathering of accomplished lawyers who had been chosen as leaders by their peers wasn’t intimidating enough, my talk followed one by then ABA President William C. Hubbard.

I decided to watch the video again, fully prepared to cringe at how dated it might have become since it was delivered in 2015.

But this short talk is still relevant today. Many people look at the challenges of legal services delivery today and blame lawyers for the problems. But lawyers work within the system. Many clients need legal counseling as a part of finding a solution to their legal problems. I remain unconvinced that all of the perceived problems we face today can be solved with for-profit online services, as some of their spokespersons contend. The solutions to many of today’s complex problems don’t lend themselves to fill-in-the-blank answers. Our population and the complexity of matters handled in our courts has increased while budgets for many courts have been at as standstill level or reduced. Innovation takes time and money.

There is no doubt that business practices for all types of businesses are evolving today. Email replaced much of postal correspondence. That was more efficient and often saved money for the law firm’s clients. But now there are email security concerns that never existed with sealed and stamped correspondence. Rapid change has benefits and unintended consequences.

Solo and small firm lawyers help clients across the world every day. While this “Take on the Future” presentation was intended for bar presidents, it is still good for today’s lawyers, particularity solo and small firm lawyers. More effectively using digital client files, improving efficiency and automation, particularly automation of the document creation process, should be on their agenda. Serving your client’s best interests has always been your mission and it will always be. It’s just times and the tools- they are a-changing.

Before April ends, I wanted to recognize the March/April 2018 edition of GPSOLO magazine. The Lawyer’s Stories features were very well done and provided a resource of interest for most lawyers (and young lawyers in particular.)

GPSOLO is a fine and useful publication. Update: Read this issue soon. When the new issue is posted, the previous one is archived where access is apparently is restricted to members of the ABA Solo, Small Firm and General Practice Division.

One odd thing about GPSOLO magazine is attorneys who are not ABA members are not allowed to subscribe to the magazine ($135.00 per year) because they are “individuals not eligible for ABA membership.” Since many solo and small firm lawyers are not ABA members, that seems a bit short-sighted to me. So if you enjoy their great content, you need to make sure and log in to read it at least every other month.

By contrast the subscription costs for ABA’s Law Practice Magazine is $64 per year with no such restriction noted.

Congratulations to all of the GPSOLO Magazine editorial team on such a fine issue!

Yesterday’s feature on Attorney at Work was Does Email Tracking Violate the Rules of Professional Conduct? It was written by Mark C. Palmer, who is Professionalism Counsel for the Illinois Supreme Court Commission on Professionalism. He cites a recent Professional Conduct Advisory Opinion from the Illinois State Bar Association, (Opinion No. 18-01, issued January 2018) along with advisory opinions from Alaska Bar Association, New York State Bar Association and Pennsylvania Bar Association to conclude that using e-mail tracking software is unethical.

(Since I am discussing legal ethics, please note these opinions expressed are my own and not those of my employer.)

Palmer cites an instructive example of tracking an email with a settlement offer as it is opened by counsel, forwarded, and then opened by the client’s general counsel and several client representatives so the sender can unethically gauge how serious the settlement offer is being taken. Illinois opinion 18-01 makes the same point: “The undisclosed use of email tracking software by a lawyer, without the informed consent of the recipient, conceals the fact that the sending lawyer is secretly monitoring the receipt and handling of the email message and its attachments by the original recipient as well as each subsequent receiving party.” The New York Opinion also noted that the use of these web bugs may violate The Electronic Communications Privacy Act, 18 U.S.C. § § 2510, et seq. (I note these are widely used in email marketing today and I haven’t heard of prosecutions.)

I do understand. Web bugs are creepy and invasive.

But this leads to another question. Is using U.S. Postal Service certified mail an ethics violation? I doubt you could find any lawyer who says that it is. Certified mail is used daily in law offices for service of process, to confirm delivery and when mailing valuable items. It is simple and straight-forward with none of the hidden aspects of web bugs. No law office wants to run out of certified mail supplies because almost every law office uses certified mail regularly.

But with drafting committees focused on creepy web bugs, I fear they have used language that might be interpreted as also prohibiting what I consider a legitimate practice of using “certified emails.” One can easily think of many legitimate uses for such a service, such as accepting a settlement offer with an expiration date by email. We have even heard of cases where a judge has authorized delivery of process or notices by electronic means. One would certainly want to have the digital equivalent of a USPS certified mail “green card” in that situation. And isn’t it pretty obvious that we will see greater use of electronic service of process as more laws are changed to allow this?

The Pennsylvania Bar Association’s Formal Opinion 2017 – 300 discusses email receipts. It states: “This Opinion relates to the use of web bugs and similar devices, but does not prohibit the use of “Read Receipts” or “Delivery Receipts” or similar tools used by Microsoft Outlook and other email programs. Because recipients are aware of, and may configure their software to permit such receipts, to make their use optional, or to preclude their use, their use by lawyers does not violate the Rules of Professional Conduct….”

“This Committee concludes that the Pennsylvania Rules of Professional Conduct prohibit lawyers from using “web bugs” or any other method to track the receipt and distribution of email sent to opposing counsel. While the use of visible tracking devices such as those used in commercial email do not violate the Rules of Professional Conduct, the use of a web bug, which opposing counsel cannot determine is present, violates rules 4.4 and 8.4.”

Since an e-mail recipient can decline a “Read Receipt Request,” it is ineffective to prove someone read something if they do not cooperate –and sometimes those for whom you most want to have proof of delivery are also those who would never click on a “Read Receipt” agreement. The other problem is referring to visible vs invisible tracking. Computers maintain a lot of information that is available for those who know how to find it. Is that visible or not? For example, every email in your inbox has an Internet header that contains much information if you know how to view it. Is that visible or invisible? It is important to note that the title of the Pennsylvania opinion is Ethical Obligations of Lawyers Using Software To Track Email Sent To Opposing Counsel. So in that context, I am quite comfortable with the conclusion that anything that reports back to you anything more than delivery and opening from opposing counsel’s email should be known to opposing counsel. Certified email providers can provide notices within the email that their product is in use.

Illinois State Bar Association Opinion 18-01 is not limited to opposing counsel, however— and that is problematic. This opinion states: “A lawyer may not use tracking software in emails or other electronic communications with other lawyers or clients in the course of representing a client without first obtaining the informed consent of each recipient to the use of such software.” I understand that they were focused on those nasty web bugs. But certified email is still a form of “tracking software.” In these days of lost emails, emails that are mysteriously never delivered and spam filters grabbing emails, one can make a case that competent representation today involves making certain that a client has actually received and read an important digital communication. A process that insures that is quite different from a web bug telling you that a young client forwarded your email to his mother for her interpretation.

Lawyer regulators must appreciate that not all legal representation involves corporations with general counsel. Sometimes lawyers represent individuals who made bad decisions which led to the representation and who will continue to make poor decisions during the representation. It is a lawyer’s obligation to assist them in making good decisions— if possible. So making certain a client opened an email advising them of the change in the time of next week’s hearing or the location of their deposition sounds more like good lawyering than inappropriate spying to me. A delivery receipt alone could still mean it was trapped by a spam filter and never seen by the intended recipient.

But that’s not the only practical problem. The ABA released Ethics Opinion 477 on encryption of attorney-client email on May 11, 2017. This opinion makes it clear that some attorney-client communications cannot be sent via plain unencrypted email. The opinion notes that a hard and fast rule cannot be crafted to apply to all situations, and therefore a fact-based analysis must be applied. That could be a bit time-consuming for the law firm and mistakes may be made. Plus some individual clients may not be comfortable with the mechanics of decryption processes.

I have long believed that smaller law firms will be well-served to use client portals to share documents and other communications.  See Email Attachments vs. Client Portals. It is likely easier to get a client to log into a portal these days. They may have done something similar for items ranging from HIPAA-protected medical records to their Amazon account. Most of the cloud-based practice management systems available for lawyers include built-in client portals, making their use much quicker and easier for the law firm than other methods. It is a great client service to have all of the documents related to a matter organized and available for online client access 24 hours a day.

But, of course, online portals log everything that happens from the number of times a client logged in to the number of times they opened a particular document. These logs could also provide some protection to the attorney if a client denies ever seeing a document and the log shows the client opened it on ten different occasions. Lawyers often document their files for their protection against false claims or bad memories. Most would think that is a good business practice. Labeling these logs as unethical seems wrong to me.

Illinois State Bar Association Opinion 18-01 notes that recording of phone calls without permission is illegal in Illinois and it is therefore unethical for lawyers to record client phone calls without permission. It cites that precedent  among several supporting the proportion that web bug e-mail tracking is likewise unethical. Would it extrapolate this opinion to say that examining a client portal access log was unethical?

While that may seem unlikely to some observers, Illinois lawyers using client portals may consider documenting the client’s consent to this aspect of representation. That may involve adding language to their attorney-client agreement referencing client portals and how their logs operate to obtain informed client consent or other methods. But today most people understand that logging into a password-protected website leaves a record of your visit.

Hopefully if ethics authorities examine the web bug issue in the future, they will make note of the possibility of laws authorizing digital service of process, an ethical lawyer’s need to make certain important client communications are not lost in a spam filter and that it might be a good thing, at least in some cases, if a lawyer was aware that a client was not opening the attorney’s emails.

An old saying is bad facts make bad law. Maybe bad web bugs do, too. But “bad” is a value judgment and, to be clear, if you receive any electronic newsletter or regular emails from any electronic mailing list, the odds are the sender not only knows whether you open each e-mail, but the average time of day you open their e-mails— if not more.