Three weeks (of voting) left to go in the District One Board of Trustees Election. Voting continues until February 29.
The election is underway in earnest. In fact, I received my ballot via email a little more than an hour after midnight, January 1st (yes, I’ve already voted). I understand that ballots will also go out via regular mail.
For those who took the time to read my District One candidate statement (thank you), you already know that my campaign is focused on “The Technology of Law” and how I can assist the State Bar to leverage technology with the goal of: 1) Better preparing lawyers to use technology to advance their practices and support their clients, 2) Opening up more lines of communication from lawyers to other lawyers and the public, and 3) [Maybe the most important of all] Opening up more lines of communication from the public to lawyers.
Coincidentally, the State Bar conducted their usual monthly poll: “What’s the most important change in the legal profession since you joined?” The poll was posted around Monday, January 4th and with the first 235 responses collected, look at these results!
It’s heartening to know that a lot of attorneys out there see what I see. If you agree, perhaps you’ll consider giving me your vote. If so, I thank you.
Balloting remains open through February 29, 2016.
[…and what to do if you’ve already upgraded]
Windows 10 was released in late July to a lot of fanfare. Even as a ‘tech-guy’, my rule of thumb is to never install an upgrade to a Windows operating system until Service Pack 1 is released. But, as is true with many other users, Windows 8.1 (and Windows 8.0 before it) was a big disappointment to me and I figured anything would be better than standing pat. So, under the dual-philosophies of, “Tech, Heal Thy PC” and “Document it for my readers”, I installed Windows 10 as soon as it became available.
Good thing I know how to fix my technology. On the plus side, you get to learn from my pain.
LOOKING UNDER THE HOOD
Do I regret doing it? No. Was it a successful upgrade? Yes and no. First of all, there are a lot of tweaks that must be dealt with, but other than being time-consuming, they weren’t particularly difficult.
What was difficult was that Bluetooth support disappeared. What do I mean by disappeared? I mean that, not only did it not work, the entire module was missing as if that feature didn’t exist on my PC. It can be blamed on both Microsoft and Toshiba, my PC manufacturer. As I found out later, Toshiba didn’t release Windows 10 compatible drivers until about a week after the upgrade was available (which strengthens my advice never to rush to upgrade).
But that was a week later. I had a problem to address now. I dug out my old usb mouse (my current mouse is Bluetooth) and got to work figuring it out. When it comes to troubleshooting these types of problems, patience is a virtue. There’s always an answer, but it may take time to find it. In this case, the answer was simple: my driver didn’t work and I had to find one that did work. The fix, on the other hand took time. I visited both the Toshiba and Intel sites for support, but being unable to find drivers that specifically identified as being compatible with Windows 10 (or my PC model), I simply started with the next version up from my driver and continued a pattern of install/reboot/remove/reboot, install/reboot/remove/reboot until finally, Bluetooth miraculously reappeared!
Of course, I had to try a lot of drivers – and had a lot of other work to do – so that process took two days. Not that bad; but the real reason I needed to repair it was that I connect to my smartphone via Bluetooth for other purposes.
Remember, I was willing to take the risk, so I’m fine with the results. Are you?
LOCKING YOUR DOORS
As you’re already aware, some very talented people all over the Internet have written articles about functionality and features, but I want to focus on what attorneys need to know, and the most important item is that Windows 10 poses serious risks to your privacy – and the confidentiality of your client information.
You’ll want to start with the privacy settings (which can be located – predictably – under Settings > Privacy) but be warned, depending on your configuration, there will be approximately thirteen separate modules of privacy that you must review, and you’ll have to spend some time in each one (see below):
In short, you’re going to find yourself turning a lot of features off. For most users, this will be sufficient.
For those who wish to go a step further, there are other settings referred to as Telemetry, which Windows 10 has embedded in the software. It automatically sends your information to them – and it doesn’t provide a means to turn itself off. I know what you’re thinking. “I’m staying with my current version!” That’s not going to work, because just recently, Microsoft began backporting its telemetry software to both Windows 7 and 8.
All is not lost, however. There are tools available that will mitigate the problem. Personally, I recommend the aptly-named, “Windows Tracking Disable Tool”, which does exactly what it says. This is a third-party program so as always, practice due diligence and be sure you understand what you’re doing as you’ll be installing it at your own risk.
There’s a lot of debate about installing various patches provided by Microsoft. I fall squarely in the camp of installing them. Over the past month, there have been several patches to Windows 10 and I can honestly say that just over a month out, it’s working much better than on day one. And that brings us full circle around the track to where we began: Service Pack 1.
Did I say service pack? That’s the old nomenclature. It’s not called a Service Release anymore – it’s called Threshold 2. The best estimates say it’ll likely be available sometime in October. That’s a fairly rapid turnaround for a service release, compared to the old days.
For those who ‘do as I say; not as I do’, I guess you’ll be idling at the red light a few weeks longer.
We’re still about one month out from the State Bar of California’s 88th Annual Meeting. Bookmark this link to stay up-to-date about hotels, registration, events and programs.
Want a sneak peek at the latest info? Here’s the skinny on my program this year:
Saturday, October 10, 2015 – 4:00 PM – 5:30 PM – Program 107:
In My Opinion: A Review of the Latest Technology Rules to Protect Attorney & Client Confidentiality
But wait! There’s more! Would you like to see all of the programs from the Law Practice Management & Technology Section? Download our free app for Apple and Android devices. All of the programs are listed on the calendar.
Thanks for your continued support. See you there. C’mon…it’s the happiest place on earth!
I think this is the first time I've ever done this on the blog, but immediately following LegalTech, I had to leave for a trip. However, Peter Brewer, my trusty colleague from the Law Practice Management & Technology Section, was kind enough to write up a guest-post about his experience this year.
<<< I leave it to you to determine which image to my left is the real Peter Brewer:
"The ALM LegalTech West Coast event, historically always venued in the Los Angeles area, was held instead this year in San Francisco at the Hyatt Regency on July 13 and 14. As in the past, the event consisted of keynote sessions, seminars, and importantly, a large vendor exhibit area. The first day had five seminar tracks running consisting of; corporate legal operations, information governance, advanced IT, the cloud and mobile technology, and E discovery. The second day the tracks were four in number and consisted of; information governance, E discovery, information technology, and corporate counsel perspectives.
I attended only the second day, which kicked off with an interesting discussion of the Ellen Pao versus Kleiner Perkins Caufield Byers case. On the panel were two reporters who covered the trial, and the defense attorney, Lynne C. Hermle, from Orrick Herrington and Sutcliffe. The plaintiff’s attorney, Alan B. Exelrod, of Rudy, Exelrod, Zieff & Lowe, had been scheduled to be on the panel but had to withdraw due to a scheduling conflict. This keynote proved to be a lively hour of informal discussion in which Lynne Hermle gave substantial credit to the jury for their thorough and diligent evaluation of the evidence.
The keynote was followed by seminar sessions throughout the day, with ample breaks to visit the vendor exhibit hall. I attended one of the seminar sessions on E discovery, “Every day E discovery: Bringing It In-House or Outsourcing It.” The panelists were knowledgeable; they consisted of an independent consultant, a claims manager, a partner from the major law firm, and a representative of Lexis-Nexis. The discussion was lively, but for my tastes it was a broad overview with much discussion of the concepts but very little grass-roots, take-home practical advice. I came away feeling that the discussion had been thoughtful, but with no better sense of, “where do I start,” or “what are my first steps when I get back to the office.”
I also attended a session on cyber security. Again, the panelists were well qualified and knowledgeable. The discussion included such things as the availability of data breach insurance, engaging outside consultants to do cyber security audits of your business, and a general, high-level discussion of the topic of data security in the office. Toward the end of the session the moderator opened the discussion up to questions from the audience. I commented to the panel that, while I found the discussion interesting, I would like to have some specific action items that I could take back to my five-attorney law firm and implement, step-by-step.
The advice that was given in response was to start with written policies and procedures. As in any endeavor, if you don’t know where you’re going, any road will take you there. A cautionary bit of advice that went with the suggestion of developing written policies and procedures was that then you are duty bound to follow them. Failing to observe your own procedures can increase rather than decrease your liability.
It was also suggested that I consider hiring a security consultant to do a risk assessment of my office. Apparently for a firm the size of mine (<10 total staff) this endeavor can run approximately $5,000 – $10,000. While this seems like a sizable chunk of discretionary spending, the cost of a data breach and one’s exposure to liability for it would no doubt be a multiple of many times that amount.
Contrasting the 2015 event with LegalTech events in years past, one significant difference stood out to me. In past years there were seminar sessions on a broader variety of topics. There have been sessions on such things as what financial reports a law firm owner should regularly produce and review, sessions on tech gadgets, useful mobile devices, helpful apps, practice management software, and so forth. This year by far the greatest emphasis was on data. Even the vendor exhibit hall, although it did have exhibitors of a variety of useful products, seemed to be heavy on the e discovery and data security vendors. While this information is no doubt useful to some, I found it not very applicable to my small firm’s real estate law practice, where we do not get cases involving discovery of tens of thousands, or more, documents. Circling back to the keynote discussion that kicked off that day, attorney Lynne Hermle said that in the Ellen Pao vs. Kleiner Perkins case Ellen Pao had produced something approaching a million documents. May I be blessed to reach the end of my career without ever having to tackle such a daunting task.
All in all, the LegalTech event is an enjoyable break from the office, especially for those of us interested in tech. Are you one of us? Check your wrist. If there’s an Apple watch on it, you are inescapably a techie. It was nice to have this event in Northern California for a change, and the Hyatt Regency was a lovely and accommodating venue. I hope to see the event back in San Francisco again next year."
About the Author: Peter N. Brewer has been a lawyer for over 35 years, and is also licensed by the California Bureau of Real Estate as a real estate broker. Peter started his own firm in 1995. The firm has grown to five attorneys, practicing real estate and lending law. The firm serves the legal needs of homeowners, purchasers and sellers, real estate and mortgage brokers, agents, brokerages, title companies, investors, other real estate professionals and their clients. Peter and his firm also represent clients in debt collection, creditor representation in bankruptcy, breach of contract matters, and other litigation and transactional work.
Peter obtained his Juris Doctor degree from the University of Santa Clara Law School in 1979 and is also licensed to practice law in all State and Federal Courts in Idaho and certain Federal Courts in Michigan and Iowa (and probably in other states he no longer recalls). He loves dogs, hates kids, and is generally considered to have an insufferable disposition.
2501 Park Blvd, 2nd Flr.
Palo Alto, CA 94306
(650) 327-2900 x 12
Real Estate Law – From the Ground Up®
The last three words from this short Beverly Hills Cop video clip sum up my analysis of the opinion:
I wrote public comments to COPRAC (The State Bar of California Committee on Professional Responsibility and Conduct) re their interim versions of the opinion and, in a rare step, I’m posting a verbatim excerpt because my assessment of this opinion remains unchanged. One modification – I bolded a quote, because the Committee adopted my definition verbatim in their opinion (page three, footnote six):
“I’m seeing a very common thread in COPRAC’s reasoning that afflicts those who understand technology at a more surface-level; the tendency to think of it in physical, rather than ethereal terms. In other words, the Committee has focused on the word evidence, instead of the word electronic. Take water, for example. Whether it exists in a lake, a bathtub, or a glass, it’s still water. It’s the same with evidence. Whether it exists as writing on a tombstone, a paper document, or in electronic form (e.g. sitting on a flash drive), it’s still evidence. It’s the medium that should distinguish it for your purposes. That’s the contrast missing here.
Whereas the Committee has done a better job of defining parameters such as clawbacks and laying out accurate mistakes by our hapless attorney, once again, it descends into conduct that isn’t eDiscovery-based; but competence-based. This opinion relies too much on unrelated reasoning, such as “assumes”, “relying on that assumption” and “under the impression”. That’s not an eDiscovery problem; that’s a general competence problem. It’s also not what the audience needs. If they’re attorneys licensed in California, they’ve presumably passed both a Professional Responsibility course and the MPRE exam and know – or should know – their duty of competence. It’s not as if an attorney retains a med-mal case, then immediately “assumes” or is “under the impression” that s/he’s a doctor and can read an x-ray. But I could intertwine those facts with this opinion and make it about medical experts. What attorneys specifically need to know is how their actions, or lack thereof, in the procurement, assessment and handling of electronic evidence morph into a violation. This is a highly specialized area unto itself. See my previous example. The x-ray is electronic evidence. Proper acquisition is one matter; analysis, forensic or otherwise, is quite another. That doesn’t just include the adversary’s evidence. It also includes the Client’s evidence. In this scenario, one is seeking to exculpate the Client through all available means – not just via the adversary.
Contradictions also exist in Footnote Six on page three that states, “This opinion does not directly address ethical obligations relating to litigation holds.”. I respectfully submit that the opinion goes on to do exactly that. Perhaps this is due to the criteria set forth in Footnote Six being inaccurate as defined. In a legal setting, Attorney is charged to know what the Client does not, and this may involve issuing litigation hold instructions to their own Client; not just third parties or adversaries. If attorney was interacting with the CIO or CTO (The “Information”/”Technology” chiefs, perhaps s/he could reasonably reply on their assessments. But here, attorney is interacting with the CEO who likely has no intimate knowledge of what goes on in the IT department. It should read, “A litigation hold is a directive issued to, by or on behalf of a Client.” Otherwise, how does the competent Attorney protect a Client who, in good-faith, endeavors to do the right thing or protect themselves when a Client, in bad-faith, engages in intentional spoliation? One of those scenarios exists on page two, when the eDiscovery expert, “tells Attorney potentially responsive ESI has been routinely deleted from the Client’s computers as part of Client’s normal document retention policy”.
Understanding these nuances and acting on them is the very definition of competence as applied to an eDiscovery attorney – or an attorney who engages the services of a third-party eDiscovery vendor. In this arena, eDiscovery is like a game of falling dominos; once competence tips over, the rest (acts/omissions, failing to supervise, and confidentiality) will logically follow. As they say, timing is everything.”
Conclusion: The opinion does a good job of explaining fundamentals of the eDiscovery process, but in my opinion, doesn’t go nearly far enough.
A quick reminder that Legal Tech West Coast 2015 is only a month away! See my previous post for all of the details.
So…I'm a little out of order (not a great thing for a lawyer to say, is it?). It means that I've already posted presentations in June but the CYLA Annual Practical Skills Training Symposium is held in the State Bar offices May 21st in San Francisco and May 22nd in Los Angeles.
Two important thing to know: 1) The programs are different each day, and 2) I'm presenting from 2 p.m. – 3 p.m. Friday, May 22nd on:
New Attorney Skills (Attorney Advertising)
Ethical Attorney Advertisement and Marketing
"This course will discuss how to advertise your legal services on the Internet. Learn how to design and operate your website, correspond with clients or prospective clients online, and use social media to maximize your business objectives."
I'll also be sticking around from 5:30 p.m. – 6:30 p.m. for:
Networking Speed Mentoring
"Meet and greet seasoned legal practitioners."
I'm pretty sure "seasoned" is a euphemism for "old"…I'll pretend it means, "experienced".
I hope you can join us.
It’s that time again, folks. The State Bar of California Solo and Small Firm Summit will be held at the Newport Beach Marriott from June 18-20, 2015. I’m presenting program ten this year on Thursday, June 18:
Earth(quake), Wind, Fire & Flood: Disaster Planning for the Law Practitioner
Four things are certain in life: death, taxes and disasters. The fourth? The disaster won’t manifest itself in the way you expect nor when you expect it. This program broadens your perception of what a disaster is and – should one occur – guides you through preparing and planning for continuity in your law practice.
I’ve been a fan of this conference for years because it provides a more intimate experience between attendees and presenters. I hope you join us this year!
Better later than never. At last September's State Bar of California Annual Meeting in San Diego, I and about fourteen other experts recorded videos for the California Young Lawyers Association's kick-off of their "10 Minute Mentor" program.
That was the easy part. Many of you may not know this, but the Bar is very strict about complying with the Americans with Disabilities Act (ADA), so the videos couldn't be posted until subtitles were added.
Well…the time has come. Check out my presentation, "Today's Technologies and Maintaining Client Confidences 101":