Mobile Computing: The Interface of Choice for Busy Lawyers

Posted on March 12, 2013 by Nicole Black

(Photo credit: Cory M. Grenier)

There’s no doubt about it–mobile computing is on the rise and smartphones and tablets are quickly becoming the preferred interfaces of choice. In fact, according to Kevin O’Keefe at Real Lawyers Have Blogs, last year smartphones use overtook that of regular mobile phones, crossing the 50% mark for the first time (ComScore Report).

And, mobile interfaces are quickly catching up to desktops as the interface of choice, with 37% of people using mobile devices as their preferred interface. So it’s not surprising to learn that as far back as the fourth quarter of 2010, the smartphone market surpassed the PC market, selling 101 million mobile devices compared to 92 million PCs (IDC).

But how are mobile devices being used the most? Research shows that search and email lead the way when it comes to smartphone usage. In fact, 53% of U.S. consumers are using their smartphones every day to conduct searches and there was an 80% increase in the number of emails opened using smartphone and tablets during the first half of 2012.

Lawyers aren’t immune to this trend and are jumping on the mobile bandwagon as well as reported in the American Bar Association’s 2012 Legal Tech Survey (available for purchase here).

According to the report, a whopping 89% of lawyers now use smartphones. And, one of the most drastic increases in lawyers using mobile tools was the surge in the number of lawyers using tablets. That percentage nearly doubled over the period of one year, with only 15% using tablets for law-related tasks in 2011, with that number increasing to 33% in 2012.

Given how many lawyers are using their mobile devices for work-related purposes, it should come as no surprise to learn that one of the main ways that lawyers want to use their mobile devices is to manage their busy practices on the go. That conclusion seems fairly evident, but what is harder to predict is how and where lawyers want to use their mobile devices.

That’s why we conducted a recent survey of MyCase mobile users–so that we could learn more about the features that were most important to lawyers and could better understand how our customers used MyCase’s mobile app to run their law practices.

First, we learned that the majority of mobile users accessed the app at least once every day, most often in court. The second most popular place to use the app was while traveling, whether by train or car.

Access to the calendar while on the go was important to the majority of respondents, with access to time and expense entries coming in second. Document access was also important to those surveyed.

One of the most frequent ways respondents reported using the mobile interface was for communicating–whether to send or reply a message or comment left by a client or other contact. This wasn’t surprising to us since our secure client portal and communications features are often cited by our customers as two of the most valued and useful aspects of the MyCase platform. So it simply makes sense that communicating via MyCase’s secure mobile interface would be one of the most popular uses.

We learned a lot more from this survey and we’ll discuss our findings in depth in a later post. But suffice to say, the mobile interface is undoubtedly the future of computing. Gone are the days where lawyers are chained to their office and desktop. Instead, with cloud computing and mobile devices at their disposal, lawyers can bill, access important information, and communicate with their clients on the go, no matter where they are. That’s the beauty of the modern law office and practicing law in the 21st century–and cloud and mobile computing make it possible.

–Nicole Black

Announcing the Winners of the TrialPad iPad app!

Posted on February 21, 2013 by Nicole Black

(Photo credit: fragility_v2)

In January, we announced that 2 copies of the TrialPad iPad app were up for grabs, compliments of the good folks at Lit Software.

Well, today we’re pleased to announce the lucky winners: Gene Koon and Jared Klein.

Thanks to everyone for entering and don’t forget to enter to win this month’s contest where you can win one of two free copies of the Stephanie Kimbro’s latest book, Limited Scope Legal Services: Unbundling and the Self-Help Client.

Enter to win today and good luck!

iWatch: The Future of iPractice?

Posted on February 12, 2013 by Nicole Black

The iWatch – Only a Matter of Time (Photo credit: wmacphail)

Rumors abound. Apple may be in the process of creating an iWatch–a watch-like smart phone with a flexible screen that has been described as the next step toward wearable, always with you technology. Whether it’s Google Goggles or the iWatch, it seems undeniable that we’re moving toward an always-connected culture–and we’re headed there quickly.

Which is great. But so what? If the iWatch becomes reality, will it have a direct effect on the delivery of legal services? Will it single handedly change the way that lawyers practice law? Probably not. But the very real possibility that wearable technology is in our near future is simply further evidence that the times they are a-changin’–and they’re changing fast.

And these new technologies are affecting–and being embraced–by every generation of legal consumers, from the Baby Boomers on down. For example, as Kevin O’Keefe recently reported at Real Lawyers Have Blogs, although adults 60 years and over tend to prefer reading from pages on physical books, they are actually able to read more efficiently using digital readers. Based on that information, Kevin suggested that law firm content should be digitized since older law firm clients find it easier to read digital content.

From that same data, Omar Ha-Redeye concluded at Slaw that lawyers of all ages are able to more easily read digital content so firms should switch from paper to ereaders in order to increase attorney productivity and efficiency:

The older readers generally spent nearly 3 seconds more reading paper and over 4 seconds more reading on an e-reader than they did a tablet. That means that potentially lawyers can read more and presumably read better when using a tablet instead of paper.

And when you attach a time savings and demonstrate efficiencies to decision-makers in law firms, you just might be able to convince them all that they should invest in the technology to go digital.

So, this particular advancement–the ability to easily and inexpensively digitize content and how doing so benefits lawyers and legal consumers of all ages–is just one example of how new technologies can affect the delivery of legal information and legal services.

But ereaders are just one example of how technology is changing our profession and our society from the ground up–and how important it is to acknowledge the effects of new technologies. Because, as noted legal futurist Richard Susskind explains in his just-published book, Tomorrow’s Lawyers: An Introduction to Your Future, the effects of sudden and dramatic shifts are sometimes difficult to comprehend when you’re smack dab in the middle of transformative change:

Two aspects of disruptive technology theory are noteworthy. First, as the Kodak example illustrates, disruptive technologies can help to unseat and bring about the demise even of market leaders. Second, in the early days of disruptive technologies, market leaders as well as their customers often dismiss the new systems as superficial and unlikely to take off. Later, however, they gain acceptance, customers often switch quickly to services based on the new technology, whereas providers, unless they are early adopters, are often too late to recognize their real potential and never manage to regain ground.

That the legal field is slow to adapt to and take advantage of the recent technological revolution is not a new claim. Study after study has borne out this conclusion, most recently, as noted at the Cordell Parvin blog, in a study out of Georgetown Law Center for the Study of the Legal Profession, the 2013 Report on the State of the Legal Market.

Cordell explains that many lawyers are so overwhelmed by the speed of change that they’re simply turning a blind eye rather than trying to keep up, and quotes the following telling excerpt from the report:

The legal market today is an increasingly difficult and challenging environment, one that calls for clear thinking, strategic focus, and flexibility in addressing rapidly changing realities. To an unfortunate extent, however, many lawyers and law firms seem stuck in old models–traditional ways of thinking about law firm economics and structure, legal work processes, talent management,and client relationships–that are no longer well suited to the market environment in which they compete.

In fact, the way that legal services are delivered is already undergoing massive change, as evidenced by last week’s US-based LegalForce launch, a physical store resembling an Apple store that aids legal consumers in finding legal information and legal representation. Carolyn Elefant at My Shingle explains how it functions:

Inspired in part by the AppleStore concept, LegalForce makes the law user friendly just as Apple has made technology user-friendly for the past decades. The LegalForce store functions as the physical hub for a variety of law-related services for consumers and small businesses, offering law and business books, tablets loaded with law resources and access to computer-based forms. After all, many times consumers may not need a lawyer at all.

So, change in the delivery of legal services is clearly afoot. That this rapid change is occurring is undisputed. That it’s changing the way that our culture communicates, interacts, and conducts business is likewise indisputable. For proof, look no further than Oreo’s wildly successful Super Bowl ad–arguably the most talked about of all Super Bowl ads–created spur of the moment during the power outage and which immediately went viral via social media.

It’s a different world now. Just 5 years ago, the Oreo ad would have been unthinkable. And that’s the problem–the rate of change is so drastic that it’s difficult to wrap one’s mind around it, let alone predict where it will lead.

That the legal field will be affected is a given, but what the law firm of tomorrow will look like anyone’s guess. Astute lawyers will at least be thinking about the possibilities and that’s what’s important. Because that forward-thinking, open-minded mindset is what will ultimately be the difference between swimming and sinking in the emerging legal landscape.

–Nicole Black

Lessons for the Legal Profession from the Real Housewives Franchise

Posted on October 30, 2012 by Nicole Black

(Photo credit: Wikipedia)

I’m embarrassed to admit it but one of my most guilty pleasures is watching the various iterations of the “Real Housewives” television franchise. In spite of my utter disdain for chick flicks and most things relegated to the umbrella of “entertainment made for women”, this series fascinates me. After watching my first episode of the “Real Housewives of New York” on Hulu, there was no looking back. I was hooked.

Egos, psychology, and perspective

First, I was drawn in by the never ending drama that occurs when you put a group of self-important women under the microscope of reality tv and magnify the effects by mixing in social media and public scrutiny. As these groups of women bask uneasily in the spotlight, knowing that cameras are recording their every move, their bloated egos and insecurities interfere with rational thought, amplifying their knee jerk reactions and resulting in thoroughly entertaining theatrics and outrageous, and sometimes baffling, behavior.

And, as I watch the different “Real Housewives” shows, each focused on a different group of women in a given city, I’m endlessly fascinated by the cultural and geographic differences exhibited by the groups of women hailing from different regions of the country. Interestingly, although there are endless variations in the social mores and in their outward reactions, driven in large part by the customs of their particular locale–at the end of the day the psychology behind their interactions is the same, because, after all, people are people.

Also intriguing is how each woman has her own unique version of events–one which often differs substantially from reality. And the women relentlessly and stubbornly stick to their skewed perspectives even though the actual event was inevitably captured by cameras and recorded for all the world to see. In other words, their world view is oftentimes strangely unaffected by reality.

The Legal Zoom connection

A parallel between the Housewives franchise and the legal profession never occurred to me until last night, when I was watching an episode of “The Real Housewives of Miami” as I cooked dinner. I was happily sipping a glass of Napa Mumm Cuvee´ and enjoying the drama, when there suddenly appeared, sandwiched in between commercials for the latest Lexus and Windows 8, a commercial for LegalZoom.

At first, what interested me about the commercial was the choice to advertise LegalZoom to the “Real Housewives” demographic. But then, my mind switched gears, and I began to see parallels between the aspects of the Housewives series’ that most intrigued me and the legal field’s collective reaction to change.

I know, I know–it’s a stretch, but bear with me. Because it leads to what I think are some interesting ideas and analogies.

It’s all about the egos

One of the most striking similarities between the Housewives and lawyers is their huge egos. Just as the Housewives seem to believe that the world cares about and revolves around their needs, so too do most lawyers. For many lawyers, practicing law–and pricing legal services–is all about the their wants and needs, not the clients’.

Of course, I’m not suggesting that lawyers are failing to serve their clients–after all, practicing law is all about providing legal services to clients. The problem is that most lawyers want to do so only on their terms and in the same way that they’ve always done it: high overhead, inefficient work processes, and exorbitant fees grounded in inflexible hourly billing.

Rather than delivering legal services just as they’ve always done, firmly rooted in the past, lawyers need to leave their egos at the door and re-think the delivery of legal services. Jordan Furlong sums up this imperative in a recent post the the Law21 blog, suggesting that the legal market–and legal clients–are demanding it:

(L)ook beyond the walls of the legal profession, beyond the boundaries of what we have always taken for granted, always assumed is the normal state of affairs in legal services. It’s not normal; it never really was. As a profession, we need to be prepared to let go of our defenses and preconceptions, to lower the walls we’ve built around ourselves and our clients.

It’s a global problem

Just as Housewives will be Housewives, no matter where they live, so too will lawyers be lawyers. Despite the geographic and cultural differences, the same psychological mashup, driven by the situational backdrop and stresses of “reality tv,” predictably causes the Housewives to engage in irrational, outlandish, and knee jerk reactions in the face of perceived slights.

Lawyers are no different, geographic location notwithstanding. The legal profession is just predictable as the Housewives when it comes to its reactions to hot button issues like responding to the effects of technological change and globalization. Instead of acknowledging the inescapable conclusion that the legal field is not immune from these large scale, massive changes, many lawyers, especially those in large firms, are simply turning a blind eye to the inevitable effects of these unstoppable forces.

In other words, as George Beaton recently concluded at the Beaton Capital blog:

In three developed legal services markets, the USA, UK and Australia, three independent observers, using publicly available data, have come to the same conclusion. It is now and forever will be a buyers’ market. So far the signs that #BigLaw firms are consciously recognising and are responding to this fact and its economic consequences are few. It’s time.

It’s all about perspective

And, last but not least, perspective. The Housewives routinely deny reality even after viewing videos that precisely capture the moments about which they are deluded. It’s difficult to understand the Housewives’ perspectives when they engage in this behavior–difficult, but entertaining nonetheless.

It is much less entertaining, however, when lawyers inexplicably engage in this same behavior, refusing to alter their perspectives to incorporate reality.

Or, as as Stephen Mayson adeptly explains:

The Grand Delusion that all is well in the land of law (and BigLaw in particular) is blinding many firms to the need for reconstruction. There is still time for law firm governance and management structures to address this delusion before the weaker firms are sucked under the quicksand. The challenge is not that partnership, profitability, collegiality, globalisation, and good business management are not legitimate or worthy objectives. It is that they are pursued in ways that are too often, at best, lax and, at worst, misguided. Unfortunately, too many people have a vested interest in the old model continuing to work; but the Emperor’s clothes are nevertheless increasingly being seen for what they are.

The issue is not what firms and their partners want; it is not even about what they are capable of doing. It is about what the market will expect and allow.

Reality is an inconvenient truth

Which brings us full circle. It’s not about what lawyers want; it’s about the reality of the changing legal market. It’s about clients and their expectations and needs. It’s about adapting to the ever-shifting, always-flattening, constantly shrinking, technology-driven, globalized world in which all live.

The Housewives have an excuse for their failure to change despite irrefutable proof that their perspective on reality is skewed. After all, their goal is to entertain viewers–and that they do.

Lawyers, on the other hand, exist to serve their clients. Those willing to leave their egos at the door and adapt to irrefutable change will thrive and thus better meet their clients’ needs. Those who refuse to do so, won’t–and for that failure, they have no excuse.

–Niki Black

NASA, MyCase, and the Benefits of Cloud Computing

Posted on September 18, 2012 by Nicole Black

(Photo credit: J.Gabás Esteban)

Last month, the Mars landing was big news when, amid much fanfare, NASA’s rover Curiosity successfully landed on the surface of Mars. Within moments, the Curiosity began transmitting images back to earth and will continue to do so for some time.

For geeks and non-geeks alike, the Curiosity’s arrival at Mars was an unforgettable event and, by all accounts, was an engineering and scientific marvel.

Interestingly, as it turns out, cloud computing (where data is stored on servers owned and maintained by a third party) was and continues to be instrumental to the success of NASA‘s Jet Propulsion Laboratory‘s Mars mission. The reason for the importance of cloud computing to this mission is explained in this Los Angeles Times article:

With so much large-scale data processing to be done, JPL is leading the way in the adoption of cloud computing in the federal government, said Khawaja Shams, manager for data services at La Canada Flintridge-based JPL.

“At this point, JPL’s data centers are filled to capacity, so we’re looking for ways to cost effectively expand the computational horsepower that we have at our disposal,” he said. “Cloud computing is giving us that opportunity.”

In other words, cloud computing saves NASA money and dramatically increases its computing power, making the Mars mission both feasible and affordable.

So, who is the lucky cloud computing provider of choice for NASA? It just happens to be Amazon Web Services (AWS), the very same cloud computing services provider used by MyCase:

Better known for being an e-commerce giant, Amazon has become a major player in cloud computing, with NASA’s Jet Propulsion Laboratory using the company’s Amazon Web Services to capture and store images and metadata collected from the Mars Exploration Rover and Mars Science Laboratory missions…

Using AWS’s cloud to operate the mars.jpl.nasa.gov website, Shams noted, enables JPL to get images, videos and developments to the public quickly, without having to build and operate the infrastructure in-house.

According to Amazon, AWS enabled JPL to construct a scalable Web infrastructure in only two to three weeks instead of months.

So, for NASA cloud computing offers a multitude of benefits, including security, flexibility, and scalability. Coincidentally, according to the American Bar Association’s 2011 Legal Technology Survey, these are the very same reasons that lawyers are increasingly relying on cloud computing in their law practices.

Specifically, the ABA survey established that the main reason lawyers use cloud computing platforms is convenience. 70% of attorneys who use these services cited the ability to access data from anywhere as the main incentive, while 55% stressed the importance of 24/7 access to data. Simplicity and affordability were also cited as important factors. Low cost was important to 49%, quick start up time was a factor for 44% and 43% appreciated the ability to eliminate IT staff and software management requirements.

So, whether it’s lawyers or NASA–cloud computing facilitates convenient, secure computing that is both powerful and affordable. It’s not surprising then that both MyCase and NASA use Amazon Web Services to deliver cloud computing services to their end users in a reliable and secure environment.

That NASA and many other governmental agencies are transitioning to the cloud is overwhelming proof that cloud computing is the future of computing. Still not convinced? Consider these facts from this Wired blog post:

According to AMD (1/12), 70 percent of businesses are either using or investigating cloud computing solutions.

According to an IBM survey (2011) of 2,000 midsize companies, two-thirds were planning or had already deployed cloud-based technologies, and 70 percent were actively pursuing cloud-based analytics for greater insight and efficiency.

90 percent of Microsoft’s 2011 R&D budget was spent on cloud computing strategy and products.

In a 2011 Avanade-commissioned study of C-level executives from 18 countries to learn how cloud computing is being used in the enterprise, it found:

60% reported cloud computing as their highest IT priority.

74% are already using some form of cloud computing technology.

64% are investing in training new and current employees on their cloud expertise.

Worldwide IT spending on cloud computing has increased more than 25 percent from 2008 to 2012.

30% of small and mid-size businesses (SMBs) used cloud software in 2011.

A study by Mimecast in 2010 found that 70 pecent of companies that were using cloud computing services are willing to and will move new applications to the cloud.

48 percent of U.S. government agencies moved at least one workflow to the cloud following the new requirement that federal agencies adopt a “cloud-first” policy…

Cloud providers have increased personnel from nil in 2007 to over 550,000 in 2010.

The writing is on the wall. Cloud computing is here to stay. For businesses, including law firms, and governmental agencies like NASA, cloud computing is the future and the future is now–on Mars and beyond.

–Niki Black

App Check: TranscriptPad (and a chance to WIN this app!)

Posted on July 26, 2012 by Nicole Black

Today’s app is TranscriptPad. It’s an iPad app for attorneys that allows you to read, highlight, and share deposition and trial transcripts using just your iPad.

Win it! There are 2 free copies of this app up for grabs. Yes, you read that correctly. Learn how you can enter to win at the end of this post.

Why you want it: TranscriptPad makes it easy for lawyers to review and organize transcripts, right on their iPads. Using the app you can create color-coded designations, search for specific phrases, flag important sections, generate reports, and share the reports or flagged portions of the transcript.

The reviews:

Review: TranscriptPad — review and manage depositions on your iPad (iPhone J.D., January 2012)
Reviewing Depos on Your iPad – Review of TranscriptPad: Of Bricks and Hammers (Court Technology and Trial Presentation Blog, June 2012)
TranscriptPad: A Must Have iPad App for Mobile Attorneys (Lawyerist, February 2012)
Another kick-butt iPad app for lawyers: TranscriptPad (Third Apple, February 2012)

The nitty gritty:

iPad app
$49.99 at iTunes

The contest:

There are 2 free copies of this app up for grabs, compliments of the kind folks at LitSoftware, the developers of both TranscriptPad and TrialPad. To enter to win, all you have to do between now and August 2nd is:

Enter your information into the MyCase/LitSoftware sign up list below and
Share a link to this blog post on either Facebook or Twitter.

That’s it! The lucky winners will be announced on August 22nd and notified via email. Good luck!

Rules:

1. To enter: RT via Twitter or share via Facebook a link to this blog post AND enter your information into the MyCase/LitSoftware sign up list above.

2. Promotion starts 8:00:00AM PDT 7/26/12 and ends 11:59:59PM PDT on 8/2/12.

3. Two (2) winners will be announced 8/22/12 and each winner will receive a promotion code for a free copy of the TranscriptPad app.

4. All entrants must be at least 18 years of age.

5. No purchase is necessary and a purchase will not improve your chances of winning.

6. MyCase may amend or terminate this program at its sole discretion.

7. This promotion is sponsored by MyCase, 2878 Camino Del Rio South, Suite 300, San Diego, CA, 92108.

8. This contest is void where prohibited.

Will Encrypted Communications Using Cloud Computing Platforms Soon be Commonplace for Lawyers?

Posted on July 10, 2012 by Nicole Black

Email Icon (Photo credit: Wikipedia)

Standard email is inherently unsecure and, surprisingly, many lawyers are unaware of this disconcerting fact. As each email travels to its intended destination, it traverses an untold number of servers and can be intercepted and viewed by virtually anyone with the proper technological know-how and desire. This is because emails are unencrypted and thus no more than mere postcards, their contents readily viewable by anyone who cares to look. This inherent security flaw in email as it now exists arguably places confidential client data at risk.

The WSJ Law Blog recently acknowledged this troubling reality in a post about the security issues presented by new technologies:

Lawyers sling millions of gigabytes of confidential information daily through cyberspace, conducting much of their business via email or smartphones and other mobile devices that provide ready access to documents. But the new tools also offer tempting targets for hackers, who experts say regard law firms as “soft targets” in their hunt for insider scoops on mergers, patents and other deals, as WSJ detailed in this Monday’s Law Journal.

Now lawyers are being asked to encrypt emails, lock up their smartphones and iPads with bust-proof passwords, and think twice before shooting off a reply to that corporate client who’s traveling in a country where internet communications are routinely monitored.

Of course, concerns regarding new technologies are nothing new; lawyers have always been suspicious of emerging technologies, and rightly so, since we have an obligation to ensure that confidential client information remains just that: confidential. But we also have an obligation to learn about and acclimate to new technologies, including new forms of communicating with clients.

As a profession, we first grappled with the issue of electronic communications in the mid-1990s. Back then, email was a fairly new phenomenon and a number of state bar associations wanted nothing to do with it. For example, ethics committees in both South Carolina (Opinion 94-27 1995)) and Iowa (Iowa Ethics Opinion 96-1 1996) concluded that the use of email by lawyers to communicate with clients breached confidentiality unless precautions were taken to prevent interception or client consent acknowledging the risks of using of email was obtained.

A few years later, in 1999, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility helped to reverse the email backlash trend when it issued ABA Formal Opinion No. 99-413. In this opinion, the Committee concluded that client consent regarding the use of email was unnecessary: “Although earlier state bar ethics opinions on the use of Internet e-mail tended to find a violation of the state analogues of Rule 1.6 because of the susceptibility to interception by unauthorized persons and, therefore, required express client consent to the use of e-mail, more recent opinions reflecting lawyers’ greater understanding of the technology involved approve the use of unencrypted Internet e-mail without express client consent.”

The ABA Committee on Ethics and Personal Responsibility wasn’t alone in this conclusion. In fact, ethics committees in multiple jurisdictions have reached the same conclusion, holding that, in most cases, attorneys may use unencrypted e-mail to communicate with clients without violating their ethical obligations to maintain client confidentiality. See, for example, N.Y. State 709 (1998), State of Maine Ethics Opinion #195 (2008), Ohio Ethics Opinion No. 99-2 (April 9, 1999), Hawaii Ethics Opinion No. 40 (April 26, 2001), Utah Ethics Opinion No. 00-01 (March 9, 2000), Florida Ethics Opinion No. 00-4 (July 15, 2000), Delaware Ethics Opinion No. 2001-2 (2001), and Virginia Ethics Opinion No. 1791 (December 22, 2003).

In doing so, these ethics committees gave their blessing to the use of email for communications with clients and implicitly condoned attorneys’ use of unencrypted electronic communications with their clients.

Recently, however, because of the rapidly changing technological landscape and the availability of newfound means to encrypt and protect electronic communications, the issue of an attorney’s obligations to protect confidential attorney/client communications is being revisited.

In fact, the American Bar Association’s Committee on Ethics 20/20 is in the process of tackling this issue. If you’re not familiar with this committee, it was established in 2009 with the goal of performing “a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”

As part of its efforts, the Committee has proposed the revision of Model Rule 1.6, which addresses a lawyer’s duty to maintain confidential information, to add the following section to the rule: “(c) A lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client.”

The Committee has proposed that the following be added to the comments to this section, in order to further clarify an attorney’s obligations (emphasis added):

Acting Competently to Preserve Confidentiality…

[17] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule. Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules.

By setting forth specific factors to consider, including the sensitivity of the data, the Committee is attempting to offer lawyers an elastic standard while at the same time providing guidance in implementing any form of client communication, including email, while still protecting client confidentiality.

But risks of disclosing confidential information and security issues aren’t the only problems with email. Email is already becoming an antiquated, and arguably dysfunctional, form of comunication. As detailed in this recent NYT Bits blog post, between spam, untold numbers of mailing lists and marketing ploys, people are simply inundated with unwanted and unnecessary emails and some believe that this outmoded form of communication is on its last legs:

Last year, Royal Pingdom, which monitors Internet usage,said that in 2010, 107 trillion e-mails were sent. A report this year from the Radicati Group, a market research firm, found that in 2011, there were 3.1 billion active e-mail accounts in the world. The report noted that, on average, corporate employees sent and received 105 e-mails a day.

Sure, some of those e-mails are important. But 105 a day?

All of this has led me to believe that something is terribly wrong with e-mail. What’s more, I don’t believe it can be fixed.

Accordingly, because email is outmoded, inherently unsecure, and there are now more secure forms of electronic communication available, I predict that within two years or so, lawyers in most jurisdictions will choose to, or be required to, communicate and collaborate with clients using encrypted communications. And, the platform of choice will be encrypted communication via cloud computing systems. In fact, switching to secure communication via cloud computing platforms will be one of the keys to putting attorneys’ (and ethics’ committees) minds at ease regarding the risks of communicating via unsecured electronic means.

Many cloud computing platforms, including MyCase, already incorporate some form of encrypted client communication into their platforms, thus providing a ready-made solution to the problem of unencrypted, unsecure email. For many lawyers, this may well be the primary factor that convinces them to accept cloud computing services as a legitimate law practice management alternative to traditional software packages. Of course, I may be wrong. Only time will tell. So, tune in tomorrow and see.

-Niki Black

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