Category Archives: California Lawyer

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.

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.

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!

Start Spreading the News…LegalTech NY 2011, Jan 31 – Feb 2

This year, for the 1st time, I’m attending LegalTech New York.  I was on the fence about it, then there was this thing about “legitimate” legal bloggers being offered complimentary attendance.  Apparently, being selected by the ABA for their Blawg 100 makes me legitimate.  Who knew?

Membership has its privileges…

You may have noticed that I’ve been toying with Typepad’s alternate posting options because I intend to do all of my posting live via my PDA.  It’s not quite as robust (embedding images and links are doable, but very clunky) however, it allows me to elaborate on the spot – without the character limitation of Twitter (although my posts automatically propogate to Twitter as well).

Anyway, I’ll be attending full days Monday and Tuesday, so if you’re going, I look forward to seeing you there.

eDiscovery California: CA State Bar Ann’l Mtg


Trial is over…verdict came in yesterday.  I got my life back – for about 3 minutes…

Next on the docket?  If you're attending the California State Bar Annual Meeting in Monterey at the end of the week, yours truly is on a panel presenting CLE (continuing legal education) program #54, entitled "e-Discovery Translating — Lawyers from Mars; Techies
from Venus: Beginning e-Discovery
" from 10:30 a.m. – 12 noon Friday, September 24th.

You may recognize the title.  It comes from an article I featured this past May, written by my good friend and colleague on the LPMT Executive Committee, Robert Brownstone, for California Lawyer magazine, who will moderate the panel.  Another colleague from the Committee, Cynthia Mascio, is joining us as well.  It's going to be a lot of fun – and educational for you, we hope.

See you there!

CA Lawyer: IT from Mars, Lawyers from Venus

CA Lawyer May 2010

Folks, I'm going to trial Monday so forgive the sparse posts.  I wanted to point you to this article in CA Lawyer magazine from my colleague, Robert Brownstone.  He and I are both on the CA State Bar's Law Practice Management & Technology executive committee.  We were amused to discover that his article would be published this month, and my next article (on the intersection of e-discovery and privacy) is scheduled for July's issue.

We're also presenting a CLE seminar along with a third colleague (for you non-lawyers, that's "continuing legal education") at the CA State Bar annual meeting in September.

In the same issue is this blurb about e-discovery coming back in-house.  It's funny because I recently observed that more corporations are attempting to handle e-discovery internally to save costs and that lately all of my new clients are law firms.