What do lawyers fear most about technology? What should they fear? For this All Hallows’ Eve edition of Friday 5+ Tech Tips, we asked the practice management experts for their best — or is it worst? — legal tech horror stories. Here are their chosen tales, along with a little guidance on warding off the technology goblins. (Oh, the horror!)
Jim Calloway: Disappearing Data
You can recover from almost any disaster, but a busy lawyer finding the time to recover from a major data loss is a haunting thought indeed. Recovering or re-creating your forms, your work-in-process, the emails you have not yet replied to, billing records and other lost data will require a frightening amount of work. It will also waste a chilling amount of otherwise billable time.
One data backup is no longer enough to ward off this dread. Grab a mirror image of each new computer put into service so it can quickly be resurrected from the Underworld if it crashes. Set up an offline backup service as your primary potion for success. But also have some portable hard drives and regularly fill them with a redundant backup of your most important data. You can never have too much Halloween fun or too many backups!
Jim Calloway (@JimCalloway) is Director of the Management Assistance Program for the Oklahoma Bar Association and author of several ABA books. He blogs at Jim Calloway’s Law Practice Tips and co-produces the podcast The Digital Edge: Lawyers and Technology.
Sharon Nelson and John Simek: Restoration Nowhere?
Lawyers should fear stupidity. In a recent two-week time frame, we heard about four Northern Virginia law firms that had been struck by ransomware, which encrypts your files and demands a ransom for the decryption key. In every case, a law firm employee clicked on a link (all of them suspicious in our judgment). Two of them did not have their backups engineered correctly — which meant that they couldn’t thumb their noses at the bad guys because they couldn’t restore their data from backup.
Two salient points here: Find an IT provider that knows how to engineer backups so they cannot be attacked by ransomware and, therefore, provide you with the means to restore any encrypted data. And for heaven’s sake, train, train, train! Law firms resist training their employees because of the drain on billable time. Do they know what it costs when their carbon units click on an email attachment or a hyperlink that contains malware? Training is the best kind of risk management.
Halloween terror is finding that your data has vanished like a ghost.
Sharon D. Nelson (@SharonNelsonEsq) and John W. Simek (@SenseiEnt) are the President and Vice President of Sensei Enterprises, Inc., a digital forensics, legal technology and information security firm based in Fairfax, VA. Popular speakers and authors, they have written several books, including “The 2008-2015 Solo and Small Firm Legal Technology Guides” and “Encryption Made Simple for Lawyers.” Sharon blogs at Ride the Lightning and together they co-host of the Digital Detectives podcast.
Nora Regis: Beware the Status Quo
The scariest trap a lawyer should most fear is falling victim to organizational inertia. Thinking “We’ve always done it this way” can be both costly and ineffectual, especially when it comes to technology. Once a year, look at your firm’s processes and ask why you do things the way that you do them. After you answer your first why, ask why again and again. You will uncover pain points in your processes that you can improve. For example, are you holding on to a clunky old email client or AOL email address just because you’re used to it? Still using Windows XP because you think new computers are costly, even though Microsoft no longer supports it? Could your firm benefit from an upgrade of (or migration to) case management software?
New technology and other changes can be spooky, but nothing is scarier than a malpractice lawsuit, and old technology makes you vulnerable. Consult with a practice management advisor or your local bar association for help migrating to a more efficient way of getting things done. It’s what they’re there for, and they’ll be happy to turn your firm from a technological house of horrors into a happy one!
Nora Regis (@noraregisCBA) is Trainer & Coordinator, Law Practice Management and Technology, for the Chicago Bar Association. She is a former paralegal, specializing in litigation and bankruptcy. Prior to working in legal, she was a technology help desk agent at University of Wisconsin-Madison.
Carole Levitt and Mark Rosch: Communicating Ex Parte with a Juror
Don’t get tricked into communicating ex parte with a juror and possibly violating Rule 3.5 — the consequences are no treat.
You’re probably familiar with Rule 3.5, which states that you cannot communicate ex parte with a juror or prospective juror during the proceeding. But if you conduct social media research on jurors and prospective jurors, you should also consider how Rule 3.5 applies to that. We all hopefully understand that “communicate” means we shouldn’t email a juror, “friend” a juror on Facebook, connect with jurors on LinkedIn, or send tweets to jurors on Twitter.
Let’s say you don’t do any of the above. Wouldn’t you be spooked if “Carole,” one of the jurors you recently researched on LinkedIn, shows the judge an email she received from LinkedIn, which states “CAROLE, PEOPLE ARE LOOKING AT YOUR LINKEDIN PROFILE” and, the email — horror of all horrors — lists your (the attorney’s) name? You are positive you did not send this juror a request to connect, but now this juror knows you are monitoring her. How did this happen? Is it possible the social media platform communicated ex parte on your behalf and without your knowledge? Does it rise to the level of a “communication” (under Rule 3.5)? Have you violated Rule 3.5? If the answer is yes, how can you avoid being tricked again?
1. LinkedIn automatically informs account owners when you look at their profiles unless you adjust your privacy settings to “totally anonymous.” So, LinkedIn did communicate ex parte with this juror on your behalf and without your knowledge. (A similar horror story will ensue if you “Follow” a juror’s Twitter profile because Twitter sends a message to account holders when a new Twitter user starts to follow them.)
2. Does this communication, inadvertent as it may be, rise to the level of a Rule 3.5 communication and a violation of that rule? It depends on which ethics opinion (or guidelines) your state follows because there is a split as to whether these types of “inadvertent” communications are tantamount to a “communication.”
If your state follows the ABA Standing Committee on Ethics & Professional Responsibility Opinion 466 (2014) or Pennsylvania Bar Formal Opinion 2014-300, there is no violation. If your state follows the New York County Lawyers’ Association Committee on Professional Ethics Formal Opinion Number 743 (2011) or the New York State Bar’s Social Media Ethics Guidelines 6.A, 6.B & 6.D (2015), there is a violation.
3. How can you avoid the horror of violating Rule 3.5? As noted earlier, you will need to adjust your LinkedIn settings, and here is the trick: From your LinkedIn profile page, click “Privacy & Settings,” then “What others can see when you’ve viewed their profile,” and select “You will be totally anonymous.” Be certain not to click “Anonymous profile characteristics such as industry and title” because this will show the juror that someone in the legal profession from X city viewed her profile — just enough clues that you are monitoring the juror. If you fail to choose either of these two options, LinkedIn will send an email showing your name and headline to those whose profiles you viewed. (To avoid being tricked on Twitter, don’t click “Follow;” instead, just visit jurors’ profiles periodically. This way, they are not informed of your visits.)
Carole Levitt (@CaroleLevitt) and Mark Rosch (@MarkRosch) are the principals of Internet For Lawyers. They speak frequently on topics such as investigative and legal research, Google search, social media research and legal ethics. Together, they have conducted hundreds of in-person MCLE programs for bar associations, law firms, corporations and other professional organizations. In addition to the ABA’s “Google Gmail and Calendar in One Hour for Lawyers,” they are the authors of “The Cybersleuth’s Guide to the Internet” “Google for Lawyers” and “Find Info Like a Pro, Volumes I and II.”
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