Category Archives: Duties

Calbar Looking at Limited Law Licenses: It’s all about Standards

MP900341927An article in the February 2013 issue of the California Bar Journal states that the Calbar Board of Trustees is examining the possibility of creating a class of "limited-practice licensed" individuals.  Among the reasons provided as the catalyst (e.g. lower cost to consumers, path to eventual Bar passage), ostensibly, the Board also believes this would circumvent instances of unauthorized practice of law (UPL).  UPL (Rule 1-300) falls outside of the Bar's jurisdiction and is normally addressed as a misdemeanor charge via a criminal complaint.

A form of certification already exists within the Bar (or at least, it used to), called "Certified Law Clerk".  I know it well because I was one when I worked at the L.A. County D.A.'s Office during law school.  From memory, some of the criteria to be certified included being a 3L and having already passed the Evidence course, among other things.  Certification allowed me to perform more duties than a standard law clerk.  Obviously, I see some benefit to the idea.

However, I also see detriment, and the first one that comes to mind is expectations.  What level of expertise will a client of this class of legal professional believe they are – or should be – receiving?  Who will guard the line between limited-practice and unlimited practice to ensure that the provider doesn't cross it?  Who is at fault if the provider doesn't meet the standards the client believes they should meet?

Is a new tort called "Limited-Malpractice" going to spring out of this plan?  Will it ultimately 'dilute the brand' of what being a lawyer means?

Considering that I'm Chair of the Law Practice Management and Technology Section Executive Committee, if this new class is ultimately created, my Excom will likely be front and center during the implementation process.

Either way, I'll say this; the Board has their work cut out for them!

Calbar Formal Opinion Interim No. 10-0001 (Social Media/Attorney Advertising) is Now Formal Opinion CAL 2012-186

MP900423020Happy New Year!  Some of you may recall when I wrote about this proposed opinion back in early June.  It addresses when a social media post by an attorney might cross the line from a statement to an advertisement, thereby triggering additional state bar rules.  In late December, apparently with little fanfare, the opinion was formalized as CAL 2012-186.

Perry Segal Discusses the Cloud, Privacy & Attorney Ethics on KUCI Irvine 88.9FM – Monday, Nov. 12th at 8:00 a.m. PST

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I guess the headline says it all, except I'd like to add that the interview will also be available as a podcast via iTunes.  I will also post an MP3 here Monday.

Here's a few of the additional details:

Privacy Piracy (88.9FM and www.kuci.org), a half-hour public affairs show with no
commercials broadcasts from the University of California, Irvine campus on
Mondays from 8:00 a.m. – 8:30 a.m. Pacific Time.  To learn more
about the show and listen to archived interviews, please visit www.kuci.org/privacypiracy.

eDiscovery California: Upcoming Presentations: CalBar 85th Annual Mtg

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Why have I been missing in action the past couple of weeks?  Because I over-committed, that's why!  Note to self: Don't propose two presentations for the CalBar 85th Annual Meeting, thinking that only one will be selected…WRONG!!!  So, to kick-off my re-appearance on this blawg, here are my two upcoming presentations in Monterey:

eDiscovery eVolution: Crawl, Walk, then Run Your Case!  (Program 25)

Thursday, October 11, 2012  4:15 p.m.-5:15 p.m.

Strategy matters, and litigation is a term of art and a
little showmanship. Learn how to strategize during a case to get the
most out of each other for the clients' benefit.

Presenters:  Perry L. Segal, Derick Roselli

CLE: 1.0 Hour General Credit

This is going to be a good one, because I'm taking the role of attorney (type-casting) and my LPMT colleague, Derick Roselli, takes the role of technology expert; which is his true specialty at HP/Autonomy.  We're going to do a walk-through of a case from the perspective of the attorney consulting with his expert on a case, from start to finish.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

The Cloud: Secure? Yes. Ethical? Not so FAST!  (Program 50)

Friday, October 12, 2012  10:30 a.m.-12 noon

It's essential to conduct due diligence regarding a
vendor's security practices to insure the confidentiality of client
data. Even if the data is believed to be secure, it may violate an
attorney's legal/ethical obligations. Learn the next step– assuring
client communications are secure and ethical.

Presenters, Perry L. Segal, Donna Seyle

CLE: 1.5 Hours of Which 1.0 Hour Applies to Legal Ethics

Donna Seyle is another of my LPMT colleagues, and we're going to do a practical examination of attorney ethics rules – both ABA and California – as they pertain to data and social media interaction in the cloud.  Our goal is to explain to attorneys how even a secure cloud may violate ethical obligations to the client if additional precautions are not followed.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

I 'officially' assume the Chairmanship of LPMT at noon, Sunday, October 14th.  Here we go!

eDiscovery California: Proposed Formal Opinion 10-0003 (VLO) is now Formal Opinion CAL 2012-184

Attorneys, please take note: The State Bar of California Proposed Formal Opinion Interim No. 10-0003 (Virtual Law Office) has been adopted as Formal Opinion CAL 2012-184 (link opens 7-page pdf).  If you missed it the first go-round, I highly recommend that you familiarize yourselves with this opinion.

I can lead you to the water (but I can't force you to make the Kool-Aid).

eDiscovery California: Formal Opinion Interim No. 10-0001 (Social Networking) Raises an ‘Adject’ Issue

MP900442339First, my disclaimer:  This is a State Bar of California Opinion – and I'm Vice-Chair of their Law Practice Management & Technology Section Executive Committee (LPMT).  I want to remind you, "This blog site is published by and reflects the personal views of Perry L. Segal, in his individual capacity.  Any views expressed herein have not been adopted by the State Bar of California's Board of Trustees or overall membership, nor are they to be construed as representing the position of the State Bar of California."

The last time I analyzed one of these, it pertained to VLOs.  I found that Opinion much more difficult to address.  Formal Opinion Interim No. 10-0001 (Social Networking) is easier in some respects, because its main purpose is to apply current California rules (specifically, Rules of Professional Conduct:  Rule 1-400 Advertising and Solicitation and sections of the Business and Professions Code) to what it refers to as, "social media websites".  That's where the trouble begins; with the adjective.  We'll get to that in a moment.

There's no reason for me to do a dissertation on 1-400.  California attorneys should already be familiar with this Rule (or they can look it up, above).  Suffice it to say, for our purposes, this can be like Jeopardy, because we need ask ourselves two questions:

  1. What is a communication?
  2. If a posting is determined to be a communication, is it an advertisement or solicitation?

The only major problem I have with the document is Footnote Two on Page One (link opens the 6-page PDF).  It attempts to describe Facebook "friending" as an example of what it considers a "controlled" group.  It doesn't seem to take into account that, like Twitter, et al, your control group can republish your post (e.g. Re-tweeting).  My view?  Continue to treat your posts as if they're visible to the entire world!

Page Five reminds us of Rule 1-400(F):  "…the Committee notes that a true and correct copy of any “communication” must be retained by Attorney for two years. Rule 1-400(F) expressly extends this requirement to communications made by “electronic media.” If Attorney discovers that a social media website does not archive postings automatically, then Attorney will need to employ a manual method of preservation, such as printing or saving a copy of the screen."  [italics added]

Gulp!  How many of you remembered that part of the Rule?

Concluding, the Opinion has an adject(ive) issue.  It refers to "social media websites", but it also refers (as it should, in my opinion) to general attorney websites.  If I were to make one glaring modification to this document, it would be to find the phrase, "social media website(s)" wherever it appears, and replace it with, simply, "websites".

The qualifier serves no purpose.

By the way, if you'd like to comment on the Opinion, the 90-day period is open through 5pm, July 2nd, 2012.

Don’t Do the (Cyber)Crime if you Can’t Do the Time

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The ABA Journal Tech Report has a comprehensive examination of cyberwarfare from their May 2012 issue.  It examines the perceived attorneys' role, Constitutional limitations and international law issues.  There are contributions from a host of experts, including some very polarizing figures, like John Yoo.

Hey, you know there can be no valuable debate unless you hear out assenting and dissenting views, right?

Be warned; this is not a light read, by any means…