The  holiday shopping season is upon us, and that means it is also time for our annual Tech Toys for the Holidays Digital Edge podcast.

Sharon Nelson and I highlight an eclectic assortment of holiday gifts with a technology focus. We have some budget shopping items like an AirTag lock for $15.90 or a UBeesize 67” tripod at $13.49 for steadier cell phone pictures, and some that are budget busters like a Nemo personal submarine.

Links to all the featured tech toys are in the show notes. Happy shopping and happy holidays.

What if you copied a lot of documents to a USB flash drive for working offline and now you can’t find the drive? Do you have to report this potential breach to firm management or notify the client of this potential breach? Suppose a hacker has gotten into your laptop and perhaps downloaded some files?

The short answer is there is no breach of confidential information if the device is encrypted or the files are encrypted . We have known for some time that misplacing portable devices with appropriate encryption is not a security breach because the information remains inaccessible. This means there is also a good case to be made for encrypting all laptop hard drives.

Protecting Portable Devices from Catherine Reach, Director, North Carolina Bar Association Center for Practice Management, was published in ABA Law Practice Magazine this month and she has republished it on her blog. It is a comprehensive treatment on securing portable devices, from encryption, to remote wiping, to office policies.

Businesses exist to make a profit. Lawyers often go into practice with the goal of helping their clients with their legal needs. Profits aren’t always the first thing a lawyer thinks about daily, but this should be a primary goal every day.

That is how OBA Practice Management Advisor Julie Bays began her article  Using Technology Tools to Build Financial Security. She focuses on the technology tools that directly impact the law firm bottom line. From attracting a client to the firm, retaining the client and managing the client file, legal technology can help law firms increase efficiency and their bottom line.

We have certainly seen many weather-related disasters this year. How long has it been since your law firm reviewed its disaster plan? Disaster Planning: It’s Not Just for Hurricanes is our new Digital Edge podcast.

Jim Calloway and Sharon Nelson get Shawn Holahan’s top tips for disaster planning in legal practice.  Shawn Holahan is Practice Management Counsel and Loss Prevention Counsel for the Louisiana State Bar Association. Being from the Big Easy, she knows a thing or two about dealing with hurricanes and other types of weather disasters.

Her list of items to prioritize in disaster planning is valuable information, even for those of us for whom a tornado or prairie fire is more likely than a hurricane. Shawn emphasizes the importance of keeping your plan simple and explains “No Tech” Binders and the pre-disaster steps all lawyers should take.

Prior to Shawn’s position with the bar, she litigated employment discrimination matters. While with her firm, Hurricane Katrina destroyed the city and her home, which necessitated moving her firm and family to another part of the state for several months before New Orleans could once again support its residents.

There is a transcript of the interview posted at the site for those who prefer to read rather than listen. I imagine some lawyers will copy the transcription into their disaster planning file.

Did you know that roughly 96% of worldwide email traffic is spam? Or that one of the more recent scams is to text someone an innocent or flirtatious message, followed by, “Whoops, wrong number,” in hopes of opening a conversation? Or that iPhone scammers are now using the TestFlight app to avoid Apple’s approval process for new apps and convince people to install malicious software?

“Wrong Numbers, Fake Invoices, and Catfishing: How to Avoid the Top Internet Scams” was recently published by PCMag.com. It covers all those issues and more. It also gives clear and simple instructions on how to avoid scams.

Consider this plan:

  1. Read the article.
  2. Share with your staff (and friends and family).
  3. Consider whether this might give you a chance to do some informal email marketing/client service by sending your active clients the link and a brief email warning about how fraud schemes are increasing. No sales pitch about your services, just a warning from a professional.
  4. Then consider whether to also send that to former clients whose files were closed in the last year.

Practice Pointer: Protect your clients’ privacy! Never send an email to groups of different clients (and their email addresses) in the “To:” line. Always use the “BCC:” line so you aren’t sharing their private information with other recipients of your email. When sending BCC, group emails in small batches to no more than 30 or so recipients to avoid inadvertently being flagged as spam.

As you likely know, Microsoft 365 provides great speech recognition built right into Word, Outlook, PowerPoint and OneNote. You just click on the microphone icon labeled Dictate and begin your dictation.

But to dictate into other applications on your computer, there are other built-in options.

It’s simple on a PC, just use the Windows key + H to open the dictation Windows. (If it hasn’t been enabled, you may receive a link to first enable the feature.) Place your cursor in any text entry box and dictate away. You can also dictate appropriate punctuation. I suggest memorizing this keystroke combo so you can quickly use it when needed. Use this to dictate into Microsoft Excel or a web search engine for example.

I must confess I didn’t know how to do this on a Mac. But longtime technology tipster Kim Komando shared how to do it in a recent feature:

“On a Mac, it requires a bit more setup.

  • Click the Apple logo, then System Preferences.
  • Choose Keyboard > Dictation. Make sure this is set to On. You can set up a shortcut to start dictation here, like hitting the Control key twice.
  • Now, open a document, tap the cursor, then tap your shortcut. You can also select Edit > Start Dictation.
  • A microphone will appear. Hit Done when you’re finished.”

Most of us are doing business in the digital world these days, but protecting your clients’ confidential information must always be top of mind. Two recently released opinions from the Pennsylvania Bar Association Committee On Legal Ethics and Professional Responsibility may provide helpful guidance for lawyers.

Formal Opinion 2022-500 Ethical Considerations for Lawyers Storing Information Relating to the Representation Of A Client On A Smartphone is brief. It highlights how smartphone apps can inadvertently compromise client information without an attorney being aware of the sharing. The conclusion is straightforward:

“If a lawyer stores information governed by Pa.R.P.C. 1.6 on a smartphone, then the lawyer must take steps to prevent access to or disclose of the information. Consequently, a lawyer may not consent to share the information with a smartphone app unless the lawyer concludes that no human being will view that information, and that the information will not be sold or transferred to additional third parties, without the client’s consent.”

Let me suggest that if you have apps on your smartphone that you have not used in a long time, they may have been sold to a third party with a different business model, and you may not know what access they have to information or how they will use it. Just delete them!

Formal Opinion 2022-400 Ethical Obligations for Lawyers Using Email and Transmitting Confidential Information is a 15-page opinion discussing what lawyers may and must do (in the committee’s opinion) to be safe using email with client matters. This is a great resource that should be downloaded and saved. It includes an appendix of selected opinions from other states relating to this topic.

Note: Ethics advisory opinions from other jurisdictions are not binding on Oklahoma Bar members. In fact, “advisory” means they are not binding on lawyers from the issuing jurisdiction. However, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility is well known for insightful and persuasive ethics opinions on lawyers’ use of technology.

The term “billable hour” has long been a topic of discussion in the legal community. However, for such a simple term, it can be used in different ways. The most obvious answer is that hourly billing and the lawyer’s hourly billing rate is the method, likely still the predominant method, of determining how much clients pay their lawyers. The lawyers in the firm have hourly billing rates, keep track of their time, and fees are determined by simple multiplication: hours times the lawyers’ rates.

The cover story of the August 2007 ABA Journal was “The Billable Hour Must Die”¹ by famed lawyer-novelist Scott Turow. No one who has read any of Mr. Turow’s books would be surprised that it is a well-written and persuasive piece. He repeats the phrase “dollars times hours.” Mr. Turow wrote:

Dollars times hours sounds like a formula for fairness. What could be more equitable than basing a fee on how long and hard a litigator worked to resolve a matter? But as a system, it’s a prison. When you are selling your time, there are only three ways to make more money – higher rates, longer hours and more leverage. As the years have gone on, the push has continued on all three fronts.

Mr. Turow’s criticism of the billable hour was stinging: “It rewards inefficiency. It makes clients suspicious. And it may be unethical.”² The billable hour, in case you’ve been keeping track, has not died. I doubt that Mr. Turow thought it would die because of his feature story.

As many readers know, Oklahoma City attorney Mark Robertson and I co-authored two books for the ABA titled Winning Alternatives to the Billable Hour (2nd and 3rd editions). Although both books are now out of print, one edition was one of the top-selling books for the ABA that year. More recently, Mr. Robertson wrote Alternative Fees for Business Lawyers and Their Clients, which is still available from the ABA.

Most lawyers equate alternative billing with flat fees. Flat fees are very popular with consumer clients – but there are many variations. Task-based billing is another alternative where the lawyer bills a fee per task completed. This can be a good method for limited scope representation when the lawyer does one task, like document drafting, and the client decides if they need further assistance for an additional fee.

BILLABLE HOURS AS A MEASURE OF PERFORMANCE 

One of the reasons hourly billing has proved so durable is that it is also often used as a measure of associates’ performance in law firms, particularly larger law firms. Often, law firms have a billable hour target that is disclosed to potential associates during recruitment. An associate who fails to reach the minimum target repeatedly may not be considered for partnership. It is certainly true that this is an objective measurement of performance, and we lawyers do like objective data.

However, it is certainly daunting to have a requirement of billing 2,400 hours or even 2,700 hours annually. As we all appreciate, one cannot bill all their time spent at work, and even larger firms have internal committees requiring a lawyer’s non-billable participation. Then there are items like CLE attendance, meetings with potential clients who do not hire the firm, pro bono service and more that are not billed. But even to ethically bill 2,400 hours a year requires not only a commitment but also good health and a steady stream of work assigned by the partners. Associates trying to hit these numbers often find their personal and family time is significantly impacted.

The signing bonuses and compensation for new associates in top-tier national law firms can be stunning. The time commitment is huge, and of course, if one wants to make partner, developing your own book of business is essential. Certainly, most lawyers in private practice find themselves working long hours, particularly when pretrial preparation for a major trial is underway. But it’s one thing to miss going on a trip for a traveling soccer tournament because you have a week-long jury trial ahead, and another thing to spend all your time at the children’s soccer games talking to clients on your cell phone.

That brings up another use of the term billable hour. It has come to symbolize the massive commitment of hours lawyers might bill and the impact on their personal and family lives. This reflects a personal decision lawyers have to make, but it shouldn’t be done unconsciously. Lawyers and other personnel in the law office are among the firm’s most valuable assets. There are a number of studies showing that the quality of work suffers after more than eight or nine hours are worked in a day.

It was traditionally almost used as bragging rights among lawyers that they went an entire year without a vacation. Large-firm lawyers are trying to meet their billing requirements and properly serve their clients. Small firm lawyers may have another concern that being out of the office for an entire week will impact the number of new clients that month. Any consideration of the number of hours you want to bill or work each month should be informed by the high rates of stress and mental health challenges reported in our profession. As an older lawyer, I note this is one area where the newer generations of lawyers have a better approach to work-life balance. I’ve talked to many lawyers in the twilight of their careers who confessed to me that one of their greatest regrets was the number of their children’s activities they missed while the children were growing up. That is one reason why we are seeing the trend of partners moving on to become in-house counsel for a client. The compensation might be less, but your weekends are generally your own.

It’s not my job to make these personal decisions for you and your career. I just want to encourage lawyers to think about the long-term implications of these decisions, particularly if they are on a law firm’s management team.

EFFICIENCY IMPROVEMENT IS DRIVING BUSINESS OPERATIONS TODAY

Across the world, businesses are increasing the efficiency of their operations, often through increased reliance on technology, and inefficient businesses find that they have trouble competing with innovative competitors. This represents the main challenge related to hourly billing today.

Efficiency in business operations means using technology to create more efficient processes that require less human intervention and rely more on processes and technology. For more businesses, after absorbing the cost of the technology, the result is uniformly positive. If you reduce the hours required for an employee to create a widget from 5 to 2.5 hours, theoretically, the company can produce twice as many widgets for sale.

Implementing a technology process, like automated document assembly, which reduces the time a lawyer must spend on a project, equates to lawyers to a billable hours cut and revenue reduction. It may be a move that is good for the firm and required, but that fact impacts the risk/reward analysis of implementing new technology innovations. However, businesses that don’t keep up with modern technology while their competitors do, often find themselves losing market share and affecting profitability.

Already, many legal documents are created by technology-based processes with supervision and review by the lawyer. That trend will continue. Here’s one example: Suppose the firm has a new client that operates in a dozen states and has many contracts regularly created in each of those states. A few decades ago, that would have been a major (and expensive) legal project to make sure each contract properly complied with state law. And when the client decided to expand to two more states, there was more billable legal work.

Don’t get me wrong, this is still a great deal of work. But today, you can search Google for contract management software and locate articles like PCMag’s “The Best Contract Management Software.” Contract management software covers a wide range of capabilities. How handy would it be for the lawyer to receive a notice from their software/service that Georgia law has recently changed, and that change impacts four existing contracts you should review? The existence of contract management software may be a signal that corporate clients will move more of these functions in-house.

A law firm may be a leader in drafting contracts for a specific industry, and the firm may be able to accomplish monitoring and compliance through the processes they have used for years. But they probably should be aware that a potential threat in the future is a competitor law firm offering to do the same services the law firm provides at a monthly flat fee that is less than the firm’s typical monthly billing. That is just how business operations function today. Technology innovations create winners and losers.

A MODEST PROPOSAL

I’ve noted before in this space that I believe one solution would be that most hourly engagements should have some task-based provisions in them. Tasks that are appropriately done by legal assistants and technology-based processes might be billed at a flat fee within the hourly contract, e.g., draft and file the complaint with the court, send off for service and do other things to ensure a matter is billed at a flat fee. Clients will appreciate it if that flat fee is actually somewhat less than they would have been billed had the lawyer done it on an hourly basis. That becomes a win-win for the attorney and client. As artificial intelligence and automated document assembly products continue to improve and lawyers incorporate templates into their practices, this is not merely a theoretical discussion about the future.

And, yes, this is the first step down a road leading to many more flat fee agreements, especially for consumer clients who will be reassured that there will be no surprise bills.

WHAT IS VALUE?

I recently visited a website for a firm focusing on probate, guardianship, wills and trusts practice. The firm has one lawyer and one paralegal. The domain name of the website contained terms associated with peace of mind. The website featured many pictures of families and children as well as pictures of the lawyer and her legal assistant. The outline of services they offer listed many items we would not consider legal but only legal related. But they all spoke to removing uncertainty for one’s future and encouraging with all the support that the firm provides.

Most lawyers produce quality legal work. They are proud of their documents that reflect years of refinement and experience related to the subject matter. If your audience is a client’s corporate general counsel, the care and craftsmanship of the well-drawn contract will be appreciated. Many consumer clients, however, value the documents a lawyer prepares far less than the time the lawyer individually spends with them and the relief that someone they trusted was advising them and handling the legal work for them.

Increasingly, for consumer clients today, it is the user experience that is the most valuable thing they receive from their lawyers. They may assume their good lawyer will produce good documents. But whether they refer clients to you in the future depends more on how you made them feel than that well-drafted provision in paragraph 14. So, automating your document creation to the extent possible may free the lawyer to have more billable time to counsel with the client and follow up proactively during the representation. And that can be good for the lawyer and the client.

TIPS FOR IMPLEMENTING ALTERNATIVE BILLING

  • Take your time, using “bite-sized” steps.
  • Mine your closed files for objective data. Your recollection may be a bit biased.
  • Start with things that make sense to you and the client – g., a flat fee for courthouse filing, no matter who does it.
  • Written fee agreements and documentation are keys.
  • Pay special attention to areas where you can delegate and automate better.
  • Look at the goals from a client’s viewpoint. Predictability is at least as important as cost.
  • If your firm rewards based on billable hours, consider changing or expanding the focus to dollars billed and received. (We should have done this long ago.)
  • Could one aspect of your practice be transformed? g., corporate formation, minute book and first year’s minutes, up to 2 hours of phone questions answered during the next year, running your new business advice letter, all bundled together. Clients get predictability and “free” calls to the lawyer. You get a year to prove how valuable you are.
  • Keep reviewing and improving the process.

Endnotes

1.  Note that this article is now behind an ABA-member-only paywall.

2. Id.

Originally published in Oklahoma Bar Journal, October 2022

We  had some great tips and content at the Oklahoma Bar Association Solo and Small Firm Conference this summer. I wrote about it in the Oklahoma Bar Journal, but forgot to cross post it here. This piece includes some of the best tips. Thanks so much to Brett Burney and Kenton Brice for the great tips they shared.

The 2022 OBA Solo & Small Firm Conference came back strongly after its two-year hiatus. We had a great attendance and many sponsors supporting the event. Mainly, we all were happy to meet in person again.The conference featured a blend of substantive law programs, practice management and legal technology education. There were programs on the implications of the McGirt decision, cannabis law, estate and succession planning for business owners, guardianships and Professor Robert Spector on recent developments in family law.

The opening session for the conference is always “60 Tips in 60 Minutes,” often noted as one of the high points of the conference in reviews. The 60 in 60 format originated at ABA TECHSHOW and soon spread to many legal technology conferences, as well as solo and small firm state bar conferences. With so many topics covered in a rapid-fire manner, it is hard to not learn something useful. In fact, one attendee came up to me after the session saying she had taken three pages of notes.

This year’s tipsters included Kenton Brice, director of technology innovation at the University of Oklahoma College of Law; Brett Burney, principal of Burney Consultants, an e-discovery consultancy and co-producer of the Apps in Law podcast; OBA MAP Director Jim Calloway; and OBA Practice Management Advisor Julie Bays.

In this month’s column, I thought I’d share a few takeaways from the conference, including several of the 60 tips.

Client development for lawyers used to focus on one-to-one meetings and in-person events. Today, with very few exceptions, solo and small firm lawyers should devote attention to having a good law firm web page and some appropriate social media outreach. Most of us were not trained for any of this. Video is very effective online. Julie Bays noted that www.descript.com is an easy-to-use video and editing tool. The company promotes it as “as easy as editing a doc,” and there seems to be some truth in that claim.

As the co-star of the Apps in Law podcast, Brett Burney was happy to share some of his favorite apps. Notability is an iOS app that makes it easy to save notes whether written or recorded. The app is optimized for use with the Apple Pencil. There is a free version, but Notability Plus may be worth the subscription fee because it includes handwriting recognition and math equation conversion. This app may be an excellent way to save random bits of information to your iPhone or iPad that you need to keep temporarily or permanently.

Brett also singled out the free Microsoft To Do as a simple list-keeping app that synchronizes across all your devices, and it allows you to set due dates and reminders. This functions on all three major phone platforms. Since it has the reminder function, this may be one way to keep personal items off the law office calendar.

Solo and small firm lawyers have a particular responsibility to make certain there is somebody to take care of their clients’ matters in the event of their death or disability. When was the last time your firm updated your succession plan? OBA members can log in to MyOkBar, and on the list at the lower right is the Attorney Transition Planning Guide. Download this free guide to help with your transition planning. Many different state bar associations offer a guide similar to this.

There is free Fastcase training available at www.fastcase.com/support . If you haven’t taken advantage of the free training associated with your bar-provided legal research member benefit, we encourage you to do so. The upgrade to Fastcase 7 changed the interface a bit, and a refresher is always helpful if you haven’t used Fastcase in a while.

In today’s world, when someone hands you an important document, you might take a picture of it with your phone. But for $3.99, iOS users can use the app Scanner Pro to take a picture of a document that is then converted to an OCR’d PDF file and stored on the cloud storage service you have designated. There are many scanning apps, but Brett Burney is not the only knowledgeable individual who gives Scanner Pro high marks. To me, having the documents off your iPhone and into a designated folder is part of the attraction.

Kenton Brice likes mechanical keyboards with their heavy-duty construction. He noted the MX Mechanical from Logitech ($169.99). This sturdy keyboard has received positive reviews.

Kenton also reminded iPhone users of the ability to set up a shortcut to either double-click or triple-click on the back of the phone to perform a function. A short, 45-second video on how to set this up on the iPhone is available.  One attendee commented that it was a great way to take phone screenshots without having to use both hands.

Kenton also shared some real wisdom in his program “Evaluating Technology Tools | A Toolkit for Legal Professionals.” He noted that prior to adopting any significant technology tool, it is very important to understand both the processes and the people involved. “Processes before purchases” is a great slogan for technology projects and upgrades. Thinking that a process is messed up and so you need some technology to fix it is often reverse thinking.

“The first rule of any technology used in a business is that automation applied to an efficient operation will magnify the efficiency. The second is that automation applied to an inefficient operation will magnify the inefficiency,” is Bill Gates’s oft-quoted observation.

But if you want to improve your client intake process, you must outline every step of the process of bringing in a new client, including how file opening and billing setup processes work. Then you ask all the people involved in the process what problems they see or improvements they suggest. Then ask a sampling of clients. Then the tech evaluation and, hopefully, purchase. It sounds time consuming, and potentially is, but not as expensive as a stalled or failed technology project or one that had a successful installation but didn’t address the two main problems with the system.

I updated my article titled “Client: ‘Can My Parents Pay for My Attorney Fees?’, Lawyer: ‘Yes, but…’”  and updated the language to include credit card refunds in my template agreement for use when parents are paying for their child’s divorce and similar situations. The template is a good starting place for you to draft your firm standard agreement. Some others suggest this language should be contained in the fee agreement. But I prefer a brief standalone agreement between attorney, client and litigation funder. If you don’t use one of these agreements and should or haven’t updated yours in a while, please review the article and template.

Do you use a VPN (virtual private network) for additional security either on the road or working from home? If you are looking for a VPN, Brett Burney suggests you check out TunnelBear. It is a VPN with a cute name and good rates. There is a free trial plan, and then unlimited plans start at $3.33 per month.

If you use PowerPoint, Julie Bays has a couple of tips for you. First, you may have already noticed the improved design feature of PowerPoint that automatically suggests designs for your PowerPoints. Julie was working on a slide that included the word “hat,” and when she looked for design suggestions, royalty-free images of hats were suggested. She also noted an improvement in the PowerPoint audio recording feature that now allows you to record your own voice narration with the audio saved slide-by-slide instead of one large continuous audio file.

One tip all the presenters agreed on was the need for the use of a password manager and multifactor authentication as an important security tool. MFA means even if someone learns your password, they still cannot get into your online account because they cannot access the other factor. Kenton suggested OnePassword as his password manager of choice. More sophisticated authentication and zero trust architecture will replace these tools over the next few years, but you should definitely now be using multifactor authentication on bank accounts, brokerage accounts and services containing client information.

We had a great conference. For those who attended, I hope you enjoyed the conference and return next summer. For those who didn’t attend, I hope you locate some valuable tips in this post.

Deep fakes and other fabrications of “synthetic content” (as the FBI labels them) are rapidly improving and present a potential risk to all of us. You have probably seen deep fake videos where the video shows a person speaking but the voice belongs to another. Artificial intelligence tools match the speech with the speaker’s lips, so it looks as if the person is saying those words.

Lawyers have all known that Photoshop and other tools can generate remarkable fake pictures, even though an expert can often determine when an image is inauthentic. We have now seen people falling victim to fake voice or video creations and being scammed. But the next generation of tools is scarier. Imagine a client or opposing counsel contacting you and asking for sensitive information or funds to be transferred. An AI-powered deep fake with enough information can allow someone on the other end to speak and have their voice altered to reflect a celebrity or corporate CEO. So, they can participate in an authentic-sounding conversation with the intended victim.

The ZDNET post The next big security threat is staring us in the face. Tackling it is going to be tough provides background information and a link to the FBI warning. The FBI also notes that cybercriminals are using deep fakes to apply for remote IT support jobs, which could give them access to sensitive consumer information. If you are not certain that you are talking to the actual person, some ideas include asking them something about an obscure bit of information that only you and the actual caller would know (favorite sports teams doesn’t work because fans often post online), asking them if you can hang up and call them in a minute on their cell phone (when they say they left it at home today, proceed with caution) or having a staff company call the client’s place of business to see if the client is actually in Bora Bora.

One cannot combat deep fakes unless you know they exist. Share the ZDNET post with someone you think should know about this.