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Jan Copley
Certified Practice Advisor
Atticus, Inc.

530 South Lake Avenue, Suite 250
Pasadena, CA 91101
(626) 696-3145
(626) 421-6747 (fax)

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Ethical Technology – Part Two

July 4, 2012

Filed under: Legal Ethics,Technology — @ 8:00 am

In my previous blog, I wrote about proposed changes to ethics rules relating to new technology. The ABA is considering rules about protecting client confidentiality in light of lawyers’ increased use of outsourcing and cloud computing.

There’s another new technology that intersects with legal ethics — Social Media. The State Bar of California even has a special link on its website with information about the proper and improper use of Facebook, Linkedin, Twitter, etc.

I recently sat through a webinar about ethics and Social Media. The presenter, Mari Frank, spoke about pitfalls arising from use of listservs and Social Media outlets. She made the following points:

• Client confidentiality

  • You may be breaching client confidentiality if you post a question about a case you’re handling on a listserv, even if you don’t mention any names! So, before you do so, get your client’s permission.
  • A safe procedure is not to post anything on a Social Media site if it involves an open case.

• Improper communication

  • Has it ever occurred to you that a judge may be a participant in one of the listservs you use? Or opposing counsel? Be careful what you say about active cases.
  • If you don’t know someone who asks to follow you, be sure to learn who it is before accepting that person. You don’t want to be accused of improper communication with a judge handling your trial, a party represented by other counsel, or a juror.

• Practicing outside your jurisdiction

  • If you receive a request for advice through a link on your website or a Social Media outlet, how do you know that person is in the jurisdiction where you’re licensed to practice? If you blindly respond, you might be practicing law in a state other than your own!
  • Of course, some Social Media outlets — i.e., Avvo — encourage lawyers to answer consumer questions. If you choose to do so, be sure to include the caveat that you are only licensed to practice in a certain jurisdiction, that your answer is based upon your knowledge of the law where you practice, and that the person asking the question should be sure to consult with local counsel.

Please let me know how this helps you!

Ethical Technology – Part One

June 29, 2012

Filed under: Legal Ethics,Technology — @ 8:00 am

This has been my week for thinking about the overlap between legal ethics and technology. I attended a webinar about ethics and Social Media put on by the Law Practice Management & Technology Section of the State Bar of California; I’ve also found a number of blog articles about the ethical use of new technology in my email inbox.

Because it’s hard for practicing lawyers to keep up on all of this stuff, I thought I’d briefly summarize what I’ve learned here; there’s so much, I will be continuing the discussion in my next blog posting.

First, for all of my readers who practice in the United States — other than my readers in California — you may want to know that the ABA is considering proposed revisions to its Model Rules to adapt the rules to changes in technology. Among the proposed changes I find interesting:

  • A lawyer’s duty to competently represent his or her clients will now include a duty to understand and use technology competently.
  • A lawyer must use due diligence to determine if a third-party vendor — whether for outsourced work or for storing data — adequately protects client confidentiality.
  • If a lawyer outsources work to a third party, the lawyer should obtain the client’s consent before doing so.

The bottom line for the rules seem to be that a lawyer can use new technology, including cloud data storage, but that he/she must use “reasonable” efforts to protect his or her client. “Reasonable” is determined in light of circumstances, including the cost involved and the use of the data.

You can find a good summary of the proposed new rules in an article from Law Technology News, “ABA to Tackle Technology Issues in Model Rules at August Meeting.” If you want to see the proposed rules themselves, click here.

For my California readers, you might be interested to note that proposed rules relating to the ethical use of technology were submitted to the California Supreme Court in 2010, and, after a period for public comment expired, withdrawn. In the meantime, the State Bar has created a special page on its website, “Ethics and Technology Resources,” to provide guidelines to its members.

Please let me know how this helps you!

Gonna Have to Face It, You’re Addicted to…Phone

August 17, 2011

Filed under: Technology — @ 1:28 pm

I’ve previously written’t-surrender-to-the-tyranny-of-email/ about the tyranny and addictiveness of email. Well, according to a recent article in the Los Angeles Times, many of us are hooked on an even more insidious, insistent form of technology: our smart phones!

According to the article, “our addiction to technology trumps caffeine, chocolate and alcohol.” Of the 514 people surveyed, 22% would give up their toothbrushes before they would surrender their smart phone; the number goes up to 40% for iPhone users. Eewwww! One-third would give up sex! Do you think Robert Palmer should update his hit song, “Addicted to Love?”

So what does this have to do with law practice management? One of my jobs as a coach for lawyers is to remind my clients to have a life outside their work. So, don’t let technology run your life — or ruin it. In other words, don’t go to your Facebook app, don’t answer that incoming call, don’t check your email. Just put down the phone!

Please let me know how this helps you!

What Do You Do if People are Upset with You Online?

June 8, 2011

Filed under: Practice Management,Technology — @ 1:13 pm

In my last posting, I talked about dealing with upset clients. I suggested a note of apology and some token in support of it. But, what if that person goes online? What do you do?

CNN, in its blog post, “How to Respond to Online Haters”, has a couple of suggestions. First of all, to the extent you can, delete or block the offending posting. If you can’t do that, be careful about how you go on the offensive — remember, the Library of Congress will save what you say on Twitter! Sometimes, the best thing to do is ignore it; if you feel you must reply, be careful.

I think there’s a rule that applies to all e-communication: if you wouldn’t say something to someone’s face, don’t say it in an email, in your blog, on Facebook, Linkedin, YouTube, Twitter, Avvo, Yelp, TripAdvisor, Amazon, or any other online communication.

Please let me know how this is helpful to you!

The More Things Change…

May 4, 2011

Filed under: Technology — @ 12:50 pm

In my last blog, I wrote about how changes in technology have affected the rhythms of practicing law. Today, I received the California Bar’s “eJournal” (they don’t put a printed version in the mail anymore). Among the various articles is, “R u sure u want 2 tweet?” by Diane Karpman, who often writes about ethics issues in California bar publications. Karpman committed the faux pas of inadvertently sending “friend” requests to every one of her Facebook contacts (including, apparently, some judges). Beyond violating netiquette, Karpman may have breached an ethics rule or two.

I think Karpman’s article falls under the old saw, “the more things change, the more they remain the same.” She notes the ethics rules are “about three decades behind the times … regarding electronic communications.” I agree. But, on the other hand, Karpman’s article is really about a very, very old rule for practicing law: be careful what you say!

I get questions from my clients about Social Media. I think Social Media is a new and important means of establishing credibility and marketing your practice. I also think it’s here to stay — at least until the next great thing comes along.

But — and this is where the old saw comes in — you can get in trouble with Social Media just like you can with any other form of communication. You can offend a lot of people by a careless comment in Cyberspace. You can also offend someone the old-fashioned way: speaking face to face. And, the person you are speaking with directly is probably more important to your business, because he or she probably is a client or referral source. So, although the medium may be new, the rule is the same: think before you speak (or tweet!).

Is this useful to you? Please let me know.

I Am Not Nostalgic

April 29, 2011

Filed under: Technology — @ 12:55 pm

I recently came across “The Lawyer’s Toolkit: A 30 Year Retrospective,” an article by J. Scott Bovitz in the March 2011 edition of Los Angeles Lawyer. In the article, Scott talks about technological changes that have happened in the law over the past three decades.

The article intrigued me because it reflects what I have experienced during the course of my legal career. Scott is a graduate of Loyola Law School, Class of 1980; I am a graduate of Loyola Law School, Class of 1981. Scott started his lawyer life as a bankruptcy lawyer; so did I.

But, to me, Scott’s article doesn’t acknowledge how changes over the past thirty years have increased the stress of practicing law. We have to be more perfect — there’s no excuse for messy documents any longer. And the time pressures are more onerous: people seem to expect responses to emails in about ten minutes!

Finally, there’s more competition. About 180,000 new lawyers have been admitted in California since I was. The Supreme Court issued Bates v. State Bar of Arizona, allowing lawyer advertising, only four years before I graduated. In 1981, lawyer advertising was still considered dirty. If you have that attitude now, you’re going to starve to death.

So how do we meet these challenges? We have new resources available to us and we take advantage of them (don’t we?). As far as I know, there were no legal marketing experts or practice management coaches when I started practicing; I certainly wasn’t aware of any. There are a lot now and we acknowledge it’s okay to get help from them. We know that working with a practice management consultant is really no different than bringing on a new team member or hiring an associate. In either instance, what we’re doing is getting the assistance we need to accomplish our goals.

Am I nostalgic for the “good old days” of thirty years ago? No. I like it that the business of law is less stodgy than it was. I think the increased stress and competition force us to have more clarity about what we want from our profession and to do a better job. As a woman, I like it that I’m no longer a novelty in the profession. And, I still like it that the foundational reason for practicing — helping people while making a good living — is valid.

What are your thoughts? How has technology changed your life? How have you adapted? Please let me know!

Life in the Cloud

April 27, 2011

Filed under: Technology — @ 1:10 pm

Unless you’re with a big firm with dedicated IT people, it’s hard to keep up with technology. But, as I learned long ago, when I bought my first iPod, if you ignore technology you miss possibilities — that is, opportunities to do cool things, or ways to do things more quickly and more easily. Besides, as a practice advisor for lawyers, I should at least have some awareness of what’s going on in the legal technology world. That’s why I’ve been interested in recent developments in cloud computing and why I’m writing about it. It might be advantageous for you.

The cloud? We can store data in the cloud — that is, on someone else’s remote server that allows us to access what we need from any computer with an Internet connection. If you’re using Gmail or GoogleDocs you’re already working in the cloud. But you can do more! You can store and share documents. You can manage your contacts.

Is there a downside? There are people in the legal industry who have expressed concerns about cloud computing. The ABA, for one, has put together an “Issues Paper Concerning Client Confidentiality and Lawyers’ Use of Technology”. The major concern seems to be that storing data in the cloud may jeopardize client confidentiality. The ABA also worries about reliability of cloud computing vendors.

A lot of this discussion reminds me of the late 1990s, during the rise of email. The ABA initially recommended against email communications with clients, once again citing concern about client confidentiality. It was only in 1999, in its Formal Opinion 99 413, that the ABA bowed to the inevitable convenience of email, saying it “affords a reasonable expectation of privacy.” I suspect that the same thing will happen here. And, I frankly think that some of the confidentiality discussions are a little silly — as one commentator on the Legal Productivity blog noted, cloud data storage is probably more secure than what most of us are doing right now!

The cloud is in all of our futures. I think the concept of cloud computing is great. As an example, I’ve been researching cloud Contact Relationship Management software. It won’t matter what kind of computer system I have (I use a Mac, which means there’s a lot of software that won’t work on my operating system). I won’t have to spend tons of money on software updates. I’m not limited to working on a computer which has the software installed on its hard drive; I’ll be able to access the information from anywhere. My team members will, too. I won’t have to worry about my computer crashing because everything is backed up remotely. Besides, many of the services we’ve checked out are dirt cheap — as little as $5 a month!

So, is this useful to you? Please give me your thoughts.