Category Archives: Law Practice Management

eDiscovery 101, eDiscovery California, Education, Law, Law Practice Management, Technology

How I Spent My Day at LegalTech West Coast

MP900309173Have I ever gotten a LegalTech summary posted quickly?  I don't think so.  It seems like every year, the conference falls on a busy week for me.  No exception this year; in fact, regretfully, I was only able to stay for the first day.

As always, I want to inform you that I attended as a guest of the provider, ALM.  However, nobody at ALM ever attempts to influence what I write about the conference and as you know by now (hopefully), I write what I see.  So, without further delay, here goes…

Usually, I find that the day starts out strong and ends more weakly.  You get tired drinking in all of that info, especially now that the format has changed slightly to less sessions of 90 minutes each.  This year, the converse was true.  The day seemed to start out a bit quite, but by the end of the day, there was a very noticeable pick-up in both energy and attendance.

Scheduling is still the biggest problem; the more events you attend, the more people you know, which is both a positive and a negative:

Positive:  You have a lot more to do and will end up attending more events.

Negative:  You stop every ten feet to chat with all of the people you know and end up arriving late to every session.

I started with the keynote, presented by Kevin Genirs, Global General Counsel, Investment Banking, Barclays & Former General Counsel, Investment Banking, Lehman Brothers.  The topic was, "2008 vs. 2012: Lessons from Lehman Brothers".  From an informational standpoint, it was excellent.  An insider's view of the Lehman Brothers implosion – how can that not be fascinating?  However, it really didn't have anything to do with "Legal-Tech", so to speak.  To me, that didn't matter, as listening to the information from someone who was on the front lines served to humanize the event.  It's not the same as reading the cold facts in a newspaper or online, or watching them on TV.

As far as session choices, due to having been swamped prior to arriving at the conference, I literally made my choices on the fly.  This became amusing when I attended interesting sessions, only to discover that friends and colleagues were presenting them.

Session one was, "Guarding Against the Enemy Within", which pointed out that you're more likely to experience a security breach from within an organization than from without.  It's funny, because I'm presenting a very similar talk on Friday, June 22nd at the Calbar Solo & Small Firm Summit.  They think the way I do; that people, deliberately or accidentally, are more likely to facilitate a breach than via an outside attack.  The session was high on substantive content and I got a lot out of it.

After the lunch break, I attended, "Dealing with Data Theft".  I don't think I need to elaborate on the subject matter.  As I mentioned, I was pleased to find that a colleague, Wayne Lee from Verizon, was one of the presenters.  Again, a very substantive presentation by this panel.  Along with the presentation, we were also given a copy of Verizon's 2012 Security report.  If you're not familiar with it, you should be.

To finish out the day, I switched tracks and attended, "Exploring Hot E-Discovery Trends: FRCP Amendments, Social Media, and Emerging Case Law".  Again, I was pleased to discover that my colleague, Ron S. Best, was one of the presenters.  I didn't get as much out of the session because, unfortunately, it was geared to a beginner-to-intermediate audience.  That's by no means a bad thing, based on the participation of the attendees – the room was bursting at the seams.  What's gratifying is that each year, the increase in awareness and interest in these fields is palpable.

My biggest regret was that I couldn't stay for day two, but we do what we can, right?  See you there next year!

California Lawyer, Education, Law Practice Management, Media, Technology

Calbar’s LPMT Section is Now on Twitter & Facebook @calbarlpmt

LPMT SealThis is a bit of a coup for us, folks.  Only a select few of the State Bar of California’s Executive Committees have been awarded proprietary social media accounts, and LPMT is fortunate to be one of them.  So, if you’d like access to another source of up-to-date news and information about Law Practice Management and Technology – directly from your representatives at the California Bar – please ‘like’ us on Facebook and/or ‘follow’ us on Twitter.

You don’t need to be a member of LPMT – or even a member of the Bar!  All are welcome, so we encourage you to join us and take a peek at our offerings as we’re adding new benefits all of the time.

Backup & Recovery Systems, e-Evidence Insights, Education, eMail, Law Practice Management, Media, Science, Security, Technology

I Never Promised You a (Dusty)Rose Garden…

Artificial-Sweeteners
…but I did promise to try to post more often.  Isn't it a shame when work gets in the way of a good blog post?  Having not posted anything this week, I wanted to let you know about two subjects I'm working on for you right now:

  1. Due to all of the controversy over Google's privacy policy, I'm writing an instructive article about alternate software products you may use to sync email, contacts and calendar on all of your devices; including desktops, laptops, tablets and smartphones.  And here's the best part – you can do it free (for power users who want more robust features, I'll also include some pay options).  I don't know about you, but being able to create emails, calendar appointments and/or modify contacts – then having the device automatically propagate the data to all of my other devices simultaneously – is one of life's greatest time-savers!  Here's another bonus, that should appeal to many of you – you'll have a database that lives on your own device, not just via access in the cloud.  Yes, there will be pictures, in fact, I've been playing with an excellent app that creates terrific images from a non-rooted Android smartphone.  Stay tuned…
  2. I'm also working on a comparison of scientific analyses in California courts versus other jurisdictions.  I'd seen a few good articles floating around about using the Daubert analysis to support the implementation of predictive coding.  Well, that's not going to help in the Golden State, where we follow the Kelly-Frye standard (aka the 'Kelly' standard).  I'd had a lot of exposure to this during my days at the Los Angeles County District Attorney's Office.  Ask me, sometime, about how my boss and I successfully used a "Sweet'N Low" packet to impeach the defense's scientific evidence in a criminal case, once.  I suppose today, we would have called it the Splenda Gambit…

I won't post until I have the time to do the quality job you expect, so look for them a little ways down the road.  In the meantime, enjoy your weekend!

Books & eBooks, Education, Law Practice Management, Strategy, Technology

Sneak Peek! Growing and Maintaining Your Law Office

MP900444369I mentioned a few months ago that I’d hunkered down in the ‘bunker’ to write for the upcoming new State Bar of California publication, Growing and Maintaining Your Law Office (or as we like to call it, Grolo).  We’ve entered the pre-promotion stage, which means that a few of the sub-chapters have been authorized for limited publication.  In my old book-publishing days, we might have referred to them as galleys, but they’re not quite in their final form.

In any event, the Law Practice Management & Technology Section has just published one of my sub-chapters, “Using Technology to Coordinate Lawyer & Staff“.  Now, I can’t give you access to the complete excerpt, because our members pay to receive our publications, but if you’d like a little taste of what you’ll see in the book, here you go!

I’ll also be discussing more of my contributions at the 2012 California Solo and Small Firm Summit, scheduled for June 21 – 23 in Long Beach.  I’ll be presenting program 16, “They See You When You’re Sleeping: Attorney Privacy, Confidentiality & Security“, Friday, June 22nd from 9:45 a.m. – 10:45 a.m.

Hope to see you there!

Duties, Law Practice Management, Security

Beware the Ides of #Google

MP900444301You didn’t think all that free stuff was free, did you?  Sure…multi-billion-dollar conglomerates give you all kinds of tools and want nothing in return.  No, like with most loss-leaders, they lure you through the door at a bargain, make you comfortable, then make it up elsewhere; such as by mining your data.

Beginning March 1st, 2012, Google will be using a bigger shovel.  That’s when they implement their new privacy policy.  Funny…it should probably be deemed a ‘lack-of-privacy’ policy.  Essentially it allows them to mine your data over most of their products in order to create a better profile of you; ostensibly for your benefit, but really, for theirs.

Here’s the deal.  I think most people, including me, are fine with giving up something in order to receive something.  I know that Google mines data, so I tweak my privacy settings to the maximum protection level and also bypass gmail, calendar and contacts sync for my Droid (I do the same with Yahoo and any other site that wants me to upload my contact and calendar information).  Why?  Because I know that Google, et al, wants to get their hands on it!

But, where it’s a problem is for all of the people who have absolutely no concept of what they’re actually giving up.  That means, you, attorneys!  This is the problem with the cloud.  If attorneys store their data – and that of their clients – in the cloud without understanding that its being mined, they’ve already violated their ethical duties in most jurisdictions.

We attorneys call it informed consent.  The problem is, it’s the attorneys who have to inform themselves – and their clients – before they may reasonably consent.

These free services are coming with more and more strings attached (e.g., users who are forced onto Facebook Timeline know what I’m talking about).  The benefits are gradually shifting from the end-user to the provider.  Naturally, we always have a choice; conform or be cast out (thank you, Rush…).

As many of you know, I don’t have a Facebook account.  A while back, when 200 million people were using the service, they seemed unusual.  Now that 800+ million are using it, I seem unusual!  Peer pressure is a bitch, but I was never one to run with the crowd, anyway.

Be cool or be cast out…

Duties, eDiscovery California, Education, eMail, Implementation, Law Practice Management, Privilege, Scope, Security, Strategy, Technology

e-Discovery California: Proposed Formal Opinion Interim No. 10-0003 (VLO) is the Right Answer to the Wrong Question

42.  (That's for those of you who picked up on the 'Hitchhiker's Guide to the Galaxy' reference).

I usually don't feel it necessary to refer you to my disclaimer but, because 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 that:

MP900442177
"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 California State Bar's Board of Governors or overall membership, nor are they to be construed as representing the position of the State Bar of California."

The LPMT Executive Committee may publish its own, 'official' comments, to which I may also contribute.  That being said…

Technology is an extremely logic-based discipline, in its purest form; or it should be, at least.  Indeed, like the practice of law, success or failure is predicated upon compiling and understanding a particular set of facts, then realistically acting upon those facts.  Note my emphasis on the word, 'realistically'.  If I wish to suspend disbelief and begin with a set of unrealistic criteria, I may be equally able to formulate a reasonable solution, assuming it's possible to locate someone – or something – that fits the original, unrealistic premise.

This is my assessment of Formal Opinion Interim No. 10-0003 (Virtual Law Office).  It's actually a very well-crafted opinion, but it's based on a 'Statement of Facts' that, to me, are an unrealistic portrayal of how an attorney practices – or would practice – law.

First, there's no reason for me to re-invent the wheel.  For another excellent nuts & bolts assessment of the opinion, please see Stephanie Kimbro's post on her Virtual Law Practice blog.  She's an authority on the Virtual Law Office and is also cited as a resource on page one of the opinion itself.

From a pure cloud security standpoint, this is an excellent document and a perfect complement to opinion 2010-179 on wireless networks.  In fact, I would recommend that practitioners ignore the hypotheticals for a moment (especially if they're pressed for time) and proceed to the Discussion heading, Section 1 ("Duties"), which is what I'm doing for the purposes of this post.

Section 1 examines confidentiality issues of employing a cloud-based system with a 3rd-party vendor and provides a five-point list of due diligence factors that includes, but isn't necessarily limited to:

  1. The Credentials of the Vendor
  2. Data Security (Well, that's not very helpful, but it goes on to refer the reader to California, New York and ABA opinions for guidance)
  3. Vendor's Transmission of Client Info in the Cloud Across Jurisdictional Boundaries or Other 3rd-Party Servers (You've heard – or read, I suppose – me pontificate on that one; the "digital roach motel" and "know where your data is")
  4. Attorney's Ability to Supervise the Vendor (As I've reminded you often, you may hire competence, but not delegate this duty)
  5. Terms of Service of Contract with the Vendor (This is huge where the cloud is concerned.  For example, many provider contracts contain language to the effect that, "Once you transfer it to us, it becomes our property.", a major no-no for attorneys)

It also points out the security environment must be periodically reassessed, which is terrific advice.  I usually refer to it as "fire drills".  Finally, it points out that none of this may take place without proper disclosure to the client, who may, by the way, have no idea how any of this works.

Section 2 examines competence issues as follows:

  1. Proper management of attorney's intake system to determine one of the basics; "Who is the client?"
  2. Determining whether attorney may perform the requested services
  3. Determining that the client comprehends the services being performed (This document also refers to comprehension issues due to a language barrier)
  4. Keeping the client reasonably informed
  5. Determining that the client understands technology (When I read #3 above, it immediately triggered the thought that technology is another language both attorney and client must understand…)
  6. Determining when to decline to represent a client via a VLO, and whether representation may continue through traditional means

This section also re-raises the supervisory issue, but this time it's in terms of the attorney supervising other attorneys and/or non-attorneys.

Ok, so you know what I like, now let's get into what I don't like.  The hypothetical describes the VLO as a password-protected and encrypted portal that sits on a 3rd-party cloud.  So far, so good.  But then, it goes on to say that the attorney plans not to communicate with clients by phone, email or in person, but will limit communication solely to the portal.

Yeah, that covers a lot of us, doesn't it? 

I understand that it's possible for attorneys to communicate this way, but is it probable?  Does this opinion realistically apply to most attorneys; now and even into the future?  I'm not trying to be snarky here, but you can't blame me for being a tech guy.  Immediately, my mind wanders to what would likely happen in this scenario.  A technology or communication issue arises and the frustrated attorney – or client – resorts to email or a phone call.

And what about secrecy?  No, I'm not alluding to some nefarious purpose.  There are legitimate reasons why attorney and/or client might not want to document ideas or discussions – electronically or otherwise – in the short-term (what comes to mind is a nervous potential client who has invented a new product, but doesn't want to provide a lot of written detail to attorneys, while soliciting the representation of several of them, for fear that the inventor's intellectual property will be revealed).

The second thing that bothers me is the "Issue" statement that opens the opinion.  It states, verbatim:

"May an attorney maintain a virtual law office practice ("VLO") and still comply with her ethical obligations, if the communication with the client, and storage of and access to all information about the client's matter, are all conducted solely through the internet using the secure computer servers of a third-party vendor (i.e., "cloud computing")."  [Italics/bold added.  It's posed as a question, but in the text, the paragraph ends with a period – not sure if it's a typo that will be corrected in a later version].

What's the danger here?  Hello?  Facebook is the cloud!  Google is the cloud!  Email is the cloud!  A lot of communication is taking place – right now – through means not anticipated in this opinion.  What I'm saying is, if one removes the term, "VLO", from this document, it could just as easily apply to methods attorneys use to communicate with their clients on a daily basis, while at the same time, being completely unaware that many of these products are in the cloud.

It also fails to anticipate one other factor; what will happen the day these measures apply to all cloud-based technology (that day is coming, and in some cases, is already here).  As it stands today, if most attorneys attempted to comply with these security measures, law practice as we know it would grind to a halt.

Better start preparing now…

California Lawyer, Duties, eDiscovery California, Education, Implementation, Law Practice Management, Security, Technology

e-Discovery California: Wow – I Coulda had a VLO!!!

MP900315631Happy Holidays, everyone.  I'm about 2/3 of the way through my book-writing and with any luck, I hope to submit most of my remaining contribution before New Years (that is, if I don't succumb to the most wonderful time of the year – Bowl Season!).  Hopefully, then, I can get back to posting here more often.

In the meantime, I have some homework for you.  The California State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) has posted, "Proposed Formal Opinion Interim No. 10-0003 (Virtual Law Office)" for public comment [Warning; link opens a 7-page PDF].

I'm currently working on an in-depth analysis of the proposal and hope to post it next week, but when I first scanned the opinion, my mind wandered to the law of unintended consequences.  I'll reserve commenting further until I've completed my analysis, however, I encourage you to familiarize yourselves with the opinion – whether you personally make use of a VLO or not.  After all, (and it pains me to say this), it isn't all about you; the attorneys at the other end of your communications may make use of a VLO.

The public comment period remains open until March 23rd, 2012.  Hope to see you before the ball drops, but if not, please be safe and have a great holiday!

Education, Implementation, Law Practice Management, Scope, Strategy, Technology

Century City Executive Counsel Exchange – Summary

MP900382650Alec Baldwin’s Twitter rant?  So last year…(that’s why I created a ‘Twit List’).

BP accused of spoliation?  I’ve never heard that, before…

This week, I actually saw an article warning people to be careful what they post on social media, ‘because it might come back to haunt you, someday.’…

Folks, it’s almost 2012!  If any of the above headlines surprise you, you’re either new to this game or you’ve been hiding in a cave (or you haven’t been reading e-Discovery Insights the past three years…).  So, let me tell you about something more substantive – the annual Executive Counsel Exchange that was held this past Monday and Tuesday at the Hyatt in Century City, California.

I’m not aware of any other conference that operates the way this one does it.  It’s a roundtable, free-form discussion over a period of a day-and-a-half.  Two old pros were moderating this year, Robert Brownstone of Fenwick & West LLP and Browning Marean of DLA Piper (if you don’t recognize either of these names, we may have to have the ‘cave’ discussion again).  The moderators cover a series of relevant topics and the attendees are encouraged to participate.  Everything is memorialized and the attendees receive a copy.

Another thing I really appreciate is that, although it’s a sponsored conference, the vendors are highly respectful about not bombarding us with sales pitches during their contributions to the program.

If you want to know what’s happening right now, this is the place to be, because you’re hearing it exactly as it is, from people covering all parts of the spectrum who do this every day (vendors, technology, inside and outside counsel, executive, etc).  Over the next several months, The Exchange (as its called) will be in four more cities across the country.  Unfortunately, I was only able to attend Monday’s session this time, but I encourage you to check it out if you have the opportunity.

Education, Law Practice Management, Miscellaneous

Annual Meeting Wrap-Up – How Sausage is Made

MP900443693 Well, that didn't go quite as expected.  What I would have liked to do is give you my usual summary on the goings-on and highlight the CLEs I attended.  Unfortunately, because of a full slate of meetings, I attended only a single CLE; and that was the one I presented with Derick Roselli!  I did manage to pop-in to the final twenty minutes of one on privacy, but that was it.

I barely had time to tweet, but if you do follow me, you know that after a Thursday that stretched out to approximately 14 hours of back-to-back-to-back meetings, I endeavored to leave the Long Beach Convention Center at around 10pm, got in my car and…nothing.  Dead battery.  Crap!!!  In came the very generous folks from Hyatt, who got some booster cables, sent a guy over with me and we got it started.  This wasn't as easy as it looked.  The parking garage entrance was locked up tight (no security personnel anywhere to be found), so the guy actually helped me push my car to the entrance – and we boosted it with my car on one side of the security gate and his on the other.  All this while in a suit, no less!

Aside from not being in the mood to have a dead battery after a long day, if one could have picked a good day to deal with a dead battery, Friday was it because I had a light schedule.  I managed to get it done, but didn't get back in time to attend our own LPMT reception at 5:30pm.  I sauntered in – twenty minutes after the event had already ended.  Some of you attended with the intent of meeting with me and I apologize for missing you.

On the personal side, it was a very exciting event for me.  I attended the Council of Sections meeting and saw how the Bar interacts with all of the sections like ours and I also had a really productive meeting with the Bar's Internet Coordinator.  As the only section dedicated to technology, we strive to lead the way and this means maintaining close contact with our counterparts at the Bar so they know what we're up to next.

Our section held a five-hour meeting Saturday (a lunch break was in there somewhere) and it was back to the sausage grinder.  This is the "passing of the torch" event, where the outgoing officers have their final day and turn the gavel over to incoming officers (unofficially).  So, I assumed my Vice-Chair role (officially) the day after the meeting.  We summarized the prior year's accomplishments and mapped out the upcoming year.  It's an ambitious agenda but will be very beneficial to our members.

Our incoming Chair this year is Will Hoffman.  It's my job to do everything in my power to see to it that Will succeeds.  I wish him well.  It's a lot of work!

Sunday, Derick Roselli and I presented our CLE #144 on eDiscovery Facts & Fallacies.  Considering it began at 8:30am on a Sunday morning, we had a good turnout (my headcount was 38) and plenty of healthy Q&A.  We were also pleasantly surprised to discover that we'd been selected for videotaping.  This is great because, for those who didn't see our presentation, they can access it once it's posted on the Bar's website (hint: see program 7 from last year on Mars/Venus).

There you have it.  Four days of heavy activity.  Countless meetings.  One dead battery.  Now, I'm the one who feels like a sausage…