Category Archives: legal ethics

Helping Lawyers Meet the Cost of MCLE Requirements

Written on January 14, 2010 by Donna Seyle in law practice management, legal ethics
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It’s great having found friends and colleagues on Twitter whose directions and passions are aligned with my own. One such person is the author of this post, Tim Baran, whose dedication and integrity continually inspire me to “carry on.” Tim is Principal and founder of uMCLE (Uniform Mandatory Continuing Legal Education), a premier service and resource hub for continuing legal education presenters and providers, attorneys and other CLE professionals. uMCLE  advocates for uniform MCLE standards, offers CLE accreditation services and explores the intersection of CLE with Social Media and other emerging platforms and applications. He has been involved in the legal profession for fifteen years, including federal court, law school and law firms, serving from 1999-2008 as the director of library services and the continuing legal education program at Anderson Kill & Olick law firm in New York City.

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The economic downturn continued with past year with over 12,000 layoffs reported at large law firms, of which around 40 percent were attorneys. The numbers expand when considering attorney layoffs that were not reported or who separated voluntarily.  At the same time, more states have passed new rules mandating continuing legal education (CLE) for attorneys with New Jersey (2010) the latest.

Mid-size and large law firms, organizations, government entities and corporations have traditionally underwritten the “professional development” cost of the mandatory courses, often producing in-house programs that provide the necessary credit hours.  But the staggering rates of law firm lay-offs over the past couple of years have resulted in a growing number of newly unemployed and  freelance attorneys.  With significantly reduced resources, these attorneys are burdened further by the ever increasing number of costly mandatory CLE requirements.

The discussion, often led by Carolyn Elefant, Scott Greenfield and other enduring advocates, has moved beyond questioning the need for mandatory rules to focusing on the burdensome, archaic rules regarding technology, marketing/ethics, social media, uniformity and other emerging concerns.

However, little attention has been paid to how the newly unemployed and freelance attorneys can afford to comply.  Do meaningful cost savings opportunities exit?   Who’s responsible?  How can it be accessed?  The responsibility lies with all parties involved: CLE regulators who administer the rules, CLE Providers who produce accredited activities and courses, and by the attorney seeking assistance.

Continuing Legal Education Regulator

A long-term solution is for state CLE administrators and boards to advocate for changing or promulgating new rules so that reciprocity will be granted for credits earned at approved courses taken in other states, and remove current limits on the number of credit hours that can be earned via on-demand programming such as streaming video or DVDs.

Reciprocity will greatly reduce the number of courses that attorneys licensed to practice in multiple jurisdictions need to complete resulting in a corresponding reduction in cost.  It will also eliminate the need for providers to accredit courses in every jurisdiction, significantly reducing production costs which can then be passed on to the attorney.

We can all agree that the cost of watching a course online or on DVD far lower than attending a live conference. Yet, incredulously, many states severely limit the number of credit hours that can be earned via this medium, and those that do burden the viewer with many verification and other procedures making the experience often burdensome and not terribly conducive to learning.

Continuing Legal Education Providers

CLE providers consistently offer great deals and need-based scholarships. Current rules, procedures and accreditation application fees severely dampen further opportunity for providers to cut costs.  Hopefully, providers will begin to expand their use of free social media marketing to bring more attention to their courses and available resources.

Attorneys - Diligence

Attorneys must be diligent. Check bar association websites, not just your own state and local bars but other states since many courses are accredited in multiple jurisdictions and credit can also be claimed via reciprocity for the states that offer it.

Many prominent providers such as PLI, Lawline and West LegalEdCenter offer deals and specials. Sign up for their email notices. Organizations, law firms and corporations occasionally offer free seminars.  A simple Google serach will return a listing of current free and discounted courses along with sites that compile more focused listings like Social Media Presents: Free Legal Webinars right here on Freelance Law Firm.

Finally, a rich source of real-time news and information are the many social media platforms.  If you haven’t already done so, sign up for an account and follow CLE entities on Twitter who often tweet about free and discounted programs. Also check out the CLE providers who do post and advertise about their discounted courses on Facebook and LinkedIn. Diligence pays off.

These are just a few of the solutions for making CLE more affordable for newly unemployed or freelance attorneys.  Can you think of others?  Please share your thoughts and suggestions by commenting below.

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Lawyers: do you have time and resource management dilemmas that require creative solutions? Freelance attorneys and advanced technology are here to help. Take advantage of new and exciting ways to have both a successful law practice and a great lifestyle! Click here to contact me for a free consultation.

Lawyering in the Cloud: Where Do You Start?

Written on December 21, 2009 by Donna Seyle in Virtual Law Firm Practice, law practice management, legal ethics
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So you’ve heard all the great cost effective and time saving benefits of  managing your law practice online (also known as a virtual law firm), and you start researching your options. All of a sudden you’re reading articles that include words and concepts you have no comprehension of: Saas, Iaas, Paas, public clouds, private clouds. Mind starts spinning, eyes glaze over, and soon those well-known desktop applications and fax machines seem like old, comfortable friends. Let’s see if I can help you make sense of this.

The term cloud computing is really a  misnomer. Information accessible online is actually stored on servers, much like desktop data is stored on local drives, in-house servers or mainframes. The differences are scale, location and accessibility. Open source (i.e., accessible to anyone who has a web connection) servers, often called server farms, have massive storage capacity and can be located anywhere.  Additionally, companies who own the servers (like Google or Amazon) often share capacity when their demand exceeds or drops below their existing capacity. For lawyers, using open source web applications for storage create jurisdictional, security and chain-of-custody issues.

The terms Iaas (infrastructure as a service), Paas (platform as a service) and Saas (software as a service) refer to how the storage ability is delivered. The “as a service” concept refers to the user’s ability to call up the needed information on demand. The differences among these services is the degree to which your IT is involved in creating the applications. Large, international law firms often have dedicated IT departments who create the firm’s platforms and work directly with server capacity providers.  Saas providers actually create the application and either contracts with third-party servers or houses data on their own servers. (For a thorough analysis of these issues, read Legal Implications of Cloud Computing – Parts One, Two, Three and Four.)

Fortunately, there are many Saas providers that have designed platforms specifically for law firms. Each provider is unique in the services it offers and how their service functions. Some are strictly practice management tools. Others are full-service law firms which include the capacity to communicate and interact with clients through a secured portal. Still others include document automation assembly services in combination with legal direction.

It is clear that using open source platforms to communicate with clients and share documents is fraught with legal pitfalls. You have no information about or control over where the servers are located, creating jurisdictional issues. Nor do you know who is handling the data, creating authenticity issues. The data is unsecured, creating confidentiality and attorney/client privilege issues. For example, in U.S. v. Weaver, 636 F. Supp. 2d 769 (C.D. Ill. July 15, 2009), the court held that for a communication to be in “electronic storage,” the storage has to be either temporary or intermediate, or for purposes of backup protection. As these e-mails were already opened, the court concluded that the storage could not be temporary or intermediate. Accordingly, the question of whether the requested e-mails were in”electronic storage” boiled down to whether they were in storage for purposes of backup protection.

In order to avoid these pitfalls, it is necessary to investigate your hosting company to determine what security measures they employ, where their data centers are located and how they are protected. You need to determine their data retention policies and clarify what process will be employed to return data if the company goes out of business. If the hosting company contracts with third-party server companies, you need to know the terms of their agreement to be sure third parties are required to adhere to the guidelines necessary to protect legal data. The same information is necessary as these provides are now creating applications for mobile devices.

There are further issues which must be addressed once you begin to practice virtually. Because your communications with your potential clients may be conducted solely online, you need to take all necessary steps to establish the identity and residency of the person or entity seeking your representation carefully to avoid unauthorized practice of law. You must establish and clearly state the point at which the attorney/client relationship is created, and you must clearly define the scope of representation.

Although these efforts may seem daunting, the benefits of practicing online (which are listed in the article cited below) far outweigh the efforts to change how you practice law. Moreover, lawyers must move toward adopting these measures in order to stay relevant and retain a competitive edge. Stephanie Kimbro, in her article Virtual Law Practice: Taking All or a Portion of Your Practice Online, states:

The online demand for legal services and the number of people using the internet
to transact business is surging. During January, 2009 – one month alone – an estimated
4.5 million people searched online at one of ten websites seeking legal solutions.21

Although we cannot know the demand for web-based law practice, the clear trend is
toward e-commerce transactions. Consumers shop, bank, conduct business, and pay their
credit cards and taxes online. Per Forrester, ecommerce growth from 2009 to 2010 is
estimated at 13%, ($176.9 Billion) at a time when the National Retail Foundation
forecasts traditional retail sales will drop .5% in 2009.22 As one example of the increased
demand for legal services, in the 12 months ending June 30, 2008 business bankruptcy
filings jumped more than 41% and personal filings surged to 934,009, up 28% from the
previous year.23

To that end, the ABA’s Law Practice Management Section has created the eLawyering Task Force to discuss the evolution of online law. Recently, they have issued guidelines entitled Suggested Minimum Requirements for Law Firms Delivering Legal Services Online. Also, read Practicing in the Virtual Realm: A Framework for Delivering Legal Services Online for further guidance.

I hope this has clarified some of the issues you will face in your journey toward creating a virtual law practice, and provided you with resources to that will help make sense of what this movement is all about. Please post any further questions you have in the comments section and I will be happy to respond. In the meantime, have a wonderful holiday season!

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Lawyers: do you have time and resource management dilemmas that require creative solutions? Freelance attorneys and advanced technology are here to help. Take advantage of new and exciting ways to have both a successful law practice and a great lifestyle! Click here to contact me for a free consultation.

Legal Dilemmas of Social Networking, Part 3: Deceptive Practices & Ethical Concerns

Written on November 12, 2009 by Donna Seyle in Law & Social Networking, legal ethics
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As I stated in Parts 1 and 2 of this series, these posts are based on the day-long conference entitled Social Networking: Friends or Foes? (now on MP3) hosted by the Samuelson Law, Technology & Public Policy Clinic, the Berkeley Center for Law & Technology, the Berkeley Center for Criminal Justice and the UC Berkeley School of Law. The discussion addressed the legal and ethical issues facing lawyers and investigators using social networking contents in legal matters. In Part 1, I discussed the public’s expectation of privacy of the information posted on social network sites. In Part 2, I focused on the underlying law that relates to obtaining social network information for use in investigations and prosecutions of criminal and civil cases. Today, I will address ethical considerations regarding current practices to obtain or obstruct use of this information.

Being a real estate and business lawyer, I must admit to a degree of naivete regarding criminal investigative practices, and I don’t much watch TV. So my big “Aha” moment of the conference was when FBI Supervisory Special Agent Jack Bennett stated without equivocation that the FBI creates false Facebook and other social networking identities and “friends” or “pokes” suspects or potential witnesses as a matter of course to gain access to their accounts.

In their defense, the FBI investigates a whole slew of cybercrimes: identity theft, organized cybercrime, sexual predators, hackers and terrorists just to name a few. And the FBI does not have a whole set of rules called Legal Ethics to abide by. The same cannot be said for lawyers investigating their cases.

So the question is, how far can a lawyer go in these investigative tactics? Is employing someone to “friend” a potential witness that different from  hiring a private investigator to videotape a worker’s compensation claimant? Does an attorney who advises a client to shut down his Facebook account obstruct justice? Is that different  from advising a client not to talk to anyone about the case? What do you do when a client tells you there is evidence on a social networking site that could corroborate his story? Or impeach a witness? Do you get it any way you can?  Would you be committing malpractice if you didn’t?

Just as we’ve seen that there are no clear legal boundaries with respect to privacy, so a lawyer’s ethical conduct in these circumstances is undefined. However, opinions are beginning to appear. The first is the opinion of the Philadelphia Bar Associations’ Professional Guidance Committee, stating that a lawyer who hired a third party to “friend” a witness on Facebook and MySpace to gain access to personal files would violate Rules 8.4, which prohibits dishonesty, fraud, deceit or misrepresentation, and 4.1 regarding truthfulness in statements to others, of the Pennsylvania Rules of Professional Conduct.

However, in his very insightful and well-researched article, Evidence on Social Networking Sites, Ken Strutin cites the following exception to Pennsylvania’s analysis in Opinion 737 of the New York County lawyers’ Association’s Committee on Professional Ethics:

Non-government attorneys may … ethically supervise non-attorney investigators employing a limited amount of dissemblance in some strictly limited circumstances where: (i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and (ii) the evidence sought is not reasonably available through other lawful means; and (iii) the lawyer’s conduct and the investigators’ conduct that the lawyer is supervising do not otherwise violate the Code (including, but not limited to, DR 7-104, the ‘no-contact’ rule) or applicable law; and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties.

Mr. Strutin also refers to Office of lawyer Regulation v. Hurley, No. 2007AP478-D (Wis.Sup.Ct. Feb. 11, 2009), where the Supreme Court of Wisconsin affirmed a referee’s finding that an attorney, who hired a private investigator to deceptively acquire a victim’s laptop to conduct a forensic analysis, did not violate ethics rules. His reasoning was that the same deference accorded law enforcement in utilizing deception in criminal investigations should be afforded the attorney. (If you would like a more thorough discussion of these issues, I encourage you to click on the link to the article I’ve cited here, which also includes footnotes to further resources.)

As the regulation of conduct in these arenas evolves, lawyers need to tread cautiously into these waters and carefully balance the right to effective assistance of counsel against a lawyer’s obligations to be truthful. There are many creative ways to use technology to obtain information, and the enticement to cross some unknown ethical line has never been greater.

Other areas of ethical concern include such things as posting or blogging about clients, judges and cases, friending judges or opposing counsel, and other conduct that has been found to occur online (the list is long and humiliating). This kind of conduct moves beyond the duty of confidentiality to simple common sense, and can lead to circumstances that may prejudice your client, require recusal or other consequences nobody wants. What you put out there will be read or seen out there. By everyone. And people talk. Particularly online.

Lawyers: do you have time and resource management dilemmas that require creative solutions? Freelance attorneys and advanced technology are here to help. Take advantage of  new and exciting ways to have both a successful law practice and a great lifestyle! Click here to find out how!

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Lawyers: do you have time and resource management dilemmas that require creative solutions? Freelance attorneys and advanced technology are here to help. Take advantage of new and exciting ways to have both a successful law practice and a great lifestyle! Click here to contact me for a free consultation.

Legal Dilemmas of Social Networking, Part 2: Online Communications Protections

Written on November 5, 2009 by Donna Seyle in Law & Social Networking, legal ethics
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In my first post on the legal issues, I discussed the public’s expectation that their social networking information is private. Here, I will move on to the challenges presented by the lack of legislative or judicial law pertaining to use of social networking information in civil and criminal proceedings. (See Social Networking – Legal and Ethical Issues for Lawyers and Investigators).

There are two primary sources of legal authority to rely on in analyzing the protection of social networking information. The first is the 4th Amendment rights against unreasonable searched and seizures, premised on the doctrine of a person’s reasonable expectation of privacy.  The second arises from the Electronic Communications Discovery Act of 1986.  ECPA was enacted to extend government restrictions on wire taps from telephone calls to include the transmission of electronic data (email), although the restrictions were never extended to stored electronic data that had not yet been read by the recipient.  The standard to obtain a warrant under the 4th amendment is probable cause, but under ECPA, the standard is much lower. Originally, the prosecutor need only state that the information sought was “relevant” to a civil or criminal matter without stating any facts to support that claim. Later, the standard was raised to require at least a minimal factual basis for relevance, but is still substantially lower than probable cause.

The protections afforded by ECPA were weakened by the U.S. Patriot Act.  Among other things, the Act increased the ability of law enforcement agencies to search telephone, e-mail communications, medical, financial, and other records, eased restrictions on foreign intelligence gathering within the United States and the expanded use of National Security Letters which allows the FBI to search telephone, e-mail, and financial records without a court order. Prosecutors and attorneys have primarily relied on ECPA standards to seek social networking information because of the lower standard to show cause.

At this point, two distinctions should be made. First, it is easier to obtain a warrant to search social networking sites in a criminal investigation than it is to obtain a subpoena in a civil case due to the greater importance of prosecuting crimes over seeking civil remedies.  That being said, even in criminal cases, only the prosecution can obtain a warrant. And while the prosecution has the duty to turn over any evidence they obtain to the defense attorney, if they believe they will find exculpatory evidence, it was asserted at the conference that they will simply then not seek to obtain the evidence.

Second, as I discussed previously, there is a difference between “transactional information” and “content.”  While transactional information generally only requires a subpoena, “content” requires obtaining a warrant, since content carries a higher expectation of privacy. However, as we have seen, the 4th amendment right that protects against searches where there is a reasonable expectation of privacy does not necessarily apply in the electronic information landscape.

So the question remains: what body of law applies, and how does a law intended to regulate telephone and email interception apply to the acquisition of social networking information? The world of online interaction and social membership sites creates a new environment which old legal doctrines,even those directed at email, do not address. This is true not only of the legal standards required to obtain the information, but also of the unauthorized conduct to do so (to be discussed further in Part 3). For example, computers forensics provides a method to obtain information that was intentionally deleted from a hard drive. Web analytics and other tools aggregate data across many networks that is easily accessible. And then, when all else fails, there are always deceptive practices. The truth is we reveal personal information to an almost endless audience when we participate online through the digital footprint we leave. Neither legislative or judicial decisions have addressed the standards required to obtain admissible evidence in these environments.

As an example of how legal opinions are emerging, there is an excellent discussion of a recent trial court decision in a podcast entitled The Fourth Amendment and Email. Here, the judge ruled that no one can have a reasonable expectation that their emails are private due to the digital footprint they create.  Rulings like this must, and will, continue and go up on appeal to begin to create judicial precedent on these issues.

As this is being written, the House Judiciary Committee is considering HR3845, which would amend the Patriot Act. For an up-to-date review of that process, visit the Electronic Frontier Foundation website, or follow them on Twitter @eff. Lawyers and governmental agencies across the country are using social networks as a source of information on a daily basis, as a matter of course. Given that the legal parameters of such use are something akin in justice in the Wild West, this area of law needs to be defined and regulated. Now.

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Lawyers: do you have time and resource management dilemmas that require creative solutions? Freelance attorneys and advanced technology are here to help. Take advantage of new and exciting ways to have both a successful law practice and a great lifestyle! Click here to contact me for a free consultation.
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