You may not have heard of something called the Data-Driven Ethics Initiative. The organizers say it is an initiative to gather and use data to completely overhaul and improve the Rules of Professional Conduct to better benefit the public. Skeptics say it is an effort primarily funded by online legal tech companies with goals that are more tied to their business development plans than reform. The organizers say on their website that they have law school deans onboard (note the plural.)

As you can surmise, like every trained lawyer, I am a bit of a professional skeptic and that is particularly true where legal ethics rules are concerned.

So it seemed like a good idea to invite one of the two named organizers, Erin Gerstenzang, to be a guest on our Digital Edge Podcast episode, The Data-Driven Ethics Initiative. I just met Erin for the first time at ABA TECHSHOW 2018 and was so impressed by one of her presentations that I included some of her talk in my column A Brief Recap of ABA TECHSHOW 2018 in the Oklahoma Bar Journal. During the podcast Erin discussed her view of the challenges that good lawyers face today with legal ethics rules and how rule changes might better serve the public. I encourage you to listen to the podcast.

I’ll give Erin’s co-organizer (?) Megan Zavieh (who I also met for the first time at ABA TECHSHOW 2018) some equal time by pointing to her recent article on the Initiative Sweeping Change Is Needed to the Model Rules (and It Is Not Scary).

The Initiative’s rather austere website states: “We will kick off this initiative the week of May 22, 2018, from Las Vegas where we will be attending Avvo’s Lawyernomics conference. We will publish the most current draft – our MVP- on October 4, 2018, from New Orleans, when many of us will be attending the Clio Conference.” That’s 135 days to gather data and produce a draft, including weekends and holidays. So I guess most of us will be waiting until then. Personally I will attempt to keep an open mind because I do appreciate how the technology-fueled changes of today can make it challenging to apply the rules to emerging technology.

But I’d certainly encourage everyone involved with the Initiative to lobby for transparency. Who is providing funding? It’s not really believable that an all-volunteer team, especially if many of the members are busy attorneys, can produce such significant results during such a short span over the summer, even if they work all the weekends. But maybe I misinterpret this MVP label. If it is a roadmap of what needs to be examined, then it certainly could be a valuable conversation starter. We shall see.

Right before our Oklahoma Bar Association Solo & Small Firm Conference kicks off, the OBA announces six new practice management member benefits. OBA logo.gif

(June 6, 2018) Six new member benefits to help Oklahoma lawyers better manage their practices have been announced by the Oklahoma Bar Association. Members who sign up for new subscriptions will receive discounts to Clio, CosmoLex, MyCase, PracticePanther, Rocket Matter or Zola Suite, all cloud-based practice management services for law firms.

“Supporting Oklahoma lawyers as they incorporate modern technology tools into their law practices is an important goal of the OBA. Better efficiency and security tools benefit both lawyers and their clients,” said OBA President Kimberly Hays of Tulsa. “Different solutions focus on different aspects of law practice, which is why the OBA provides free consulting for Oklahoma lawyers who are shopping for a practice management tool.”

Practice management solutions organize digital copies of all client documents, lawyer’s notes, calendar information, pending tasks and all other client information using easy-to-access dashboards. Lawyers can review documents, record time, assign tasks to others in the firm and do many other functions, all within these applications. These tools also provide online client portals for the secure sharing of information with clients.

“There are many available and affordable tools to assist lawyers. While there is a learning curve, the time savings in day-to-day operations becomes apparent rather quickly,” said OBA Practice Management Advisor Darla Jackson.

As part of the vetting process, each vendor demonstrated their product and provided access to complimentary accounts to allow a hands-on preview experience. Additionally, each product was reviewed by OBA Member Services Committee members.

Jim Calloway, OBA Management Assistance Program Director, said, “These cloud-based services were designed to protect confidential client information and to provide both better security for client data and better remote access than many other methods.”

OBA members can find brief descriptions of the practice management solutions, their features and access codes for discounts by logging in to MyOKBar and accessing Practice Management Software Benefits at the bottom of their Profile page.

The 18,000-member Oklahoma Bar Association, headquartered in Oklahoma City, was created by the Oklahoma Supreme Court to advance the administration of justice and to foster and maintain learning, integrity, competence, public service and high standards of conduct among Oklahoma’s legal community.

TECHSHOW logo ABA TECHSHOW was held March 8 – 10, 2018. So the column, A Brief Recap of ABA TECHSHOW 2018, by me and OBA PMA Darla Jackson is not exactly “hot news.” Such is the result of print publication deadlines sometimes. But only a few of the previous TECHSHOW 2018 reviews mentioned the interesting relationship between TECHSHOW exhibitor Logikcull and the Ramones or provided you with the Electronic Discovery Reference Model chart. And I know this is the only recap which quoted Tom Mighell on “non-records.”  So hopefully this recap was worth the wait. While I am tempted to describe this column more, it is probably best if I pause and just let you read our column. The next ABA TECHSHOW is scheduled for February 27 – March 2, 2019 is Chicago. Mark your calendar now.

It has been Collaboration Week for lawyers. It’s not like the ABA or Congress designated it as such, but that still seems to be the case. The “week” actually started last Friday when Attorney At Work published Tech Tips: Collaborating Well With Others. The post noted:

For this edition of Friday Tech Tips, we asked the practice management technology experts: “What’s your best tech tip for collaborating well with others?” Here’s good advice from Jim Calloway, Andrea Cannavina, Jared Correia, Darla Jackson, Dennis Kennedy and Tom Mighell, Catherine Sanders Reach, Deborah Savadra and John Simek.

CollaborateThere is some good content in that post. And wisdom from two Oklahomans. 😊 What more could you want? But wait, there is more! This week our Digital Edge podcast was released. The topic is The Case for Collaboration and our guests were Dennis Kennedy and Tom Mighell. They co-authored The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, Second Edition, which was recently released by the ABA. Since Dennis and Tom also have their own long-running podcast, the Kennedy-Mighell Report, no one will be surprised that our end result was a fun and easy-to-listen to podcast. Today’s collaboration tools provide new opportunities for lawyers–if they take the time to learn about them.

Keeping the customer satisfied should be an important of every business today. This includes law firms, even though we refer Satisfied Customerto our customers as clients.

My column in the Oklahoma Bar Journal, Keeping the Customer Satisfied, outlines some ideas to do just that. One of the first rules is to not do things that aggravate the customer, like having them waste time in the the law firm’s waiting area for a long time after their scheduled appointment.

With some clients the challenge is helping them understand clearly the challenges they faced and benefits they received. As I noted in the column: 

“With medical services, a sick patient can become well or a broken bone will heal. With legal services, successful delivery of the services is often couched in terms that were previously not familiar to the client like decrees, court orders, injunctions, closings and the like.”

Take this opportunity to read these ideas and then think about what you can do to improve client satisfaction.

As an additional bonus today, here is some appropriate music for your inspiration as you consider how to make your current clients “clients for life.”

Yesterday’s feature on Attorney at Work was Does Email Tracking Violate the Rules of Professional Conduct? It was written by Mark C. Palmer, who is Professionalism Counsel for the Illinois Supreme Court Commission on Professionalism. He cites a recent Professional Conduct Advisory Opinion from the Illinois State Bar Association, (Opinion No. 18-01, issued January 2018) along with advisory opinions from Alaska Bar Association, New York State Bar Association and Pennsylvania Bar Association to conclude that using e-mail tracking software is unethical.

(Since I am discussing legal ethics, please note these opinions expressed are my own and not those of my employer.)

Palmer cites an instructive example of tracking an email with a settlement offer as it is opened by counsel, forwarded, and then opened by the client’s general counsel and several client representatives so the sender can unethically gauge how serious the settlement offer is being taken. Illinois opinion 18-01 makes the same point: “The undisclosed use of email tracking software by a lawyer, without the informed consent of the recipient, conceals the fact that the sending lawyer is secretly monitoring the receipt and handling of the email message and its attachments by the original recipient as well as each subsequent receiving party.” The New York Opinion also noted that the use of these web bugs may violate The Electronic Communications Privacy Act, 18 U.S.C. § § 2510, et seq. (I note these are widely used in email marketing today and I haven’t heard of prosecutions.)

Web bug 2I do understand. Web bugs are creepy and invasive.

But this leads to another question. Is using U.S. Postal Service certified mail an ethics violation? I doubt you could find any lawyer who says that it is. Certified mail is used daily in law offices for service of process, to confirm delivery and when mailing valuable items. It is simple and straight-forward with none of the hidden aspects of web bugs. No law office wants to run out of certified mail supplies because almost every law office uses certified mail regularly.

But with drafting committees focused on creepy web bugs, I fear they have used language that might be interpreted as also prohibiting what I consider a legitimate practice of using “certified emails.” One can easily think of many legitimate uses for such a service, such as accepting a settlement offer with an expiration date by email. We have even heard of cases where a judge has authorized delivery of process or notices by electronic means. One would certainly want to have the digital equivalent of a USPS certified mail “green card” in that situation. And isn’t it pretty obvious that we will see greater use of electronic service of process as more laws are changed to allow this?

The Pennsylvania Bar Association’s Formal Opinion 2017 – 300 discusses email receipts. It states: “This Opinion relates to the use of web bugs and similar devices, but does not prohibit the use of “Read Receipts” or “Delivery Receipts” or similar tools used by Microsoft Outlook and other email programs. Because recipients are aware of, and may configure their software to permit such receipts, to make their use optional, or to preclude their use, their use by lawyers does not violate the Rules of Professional Conduct….”

“This Committee concludes that the Pennsylvania Rules of Professional Conduct prohibit lawyers from using “web bugs” or any other method to track the receipt and distribution of email sent to opposing counsel. While the use of visible tracking devices such as those used in commercial email do not violate the Rules of Professional Conduct, the use of a web bug, which opposing counsel cannot determine is present, violates rules 4.4 and 8.4.”

Since an e-mail recipient can decline a “Read Receipt Request,” it is ineffective to prove someone read something if they do not cooperate –and sometimes those for whom you most want to have proof of delivery are also those who would never click on a “Read Receipt” agreement. The other problem is referring to visible vs invisible tracking. Computers maintain a lot of information that is available for those who know how to find it. Is that visible or not? For example, every email in your inbox has an Internet header that contains much information if you know how to view it. Is that visible or invisible? It is important to note that the title of the Pennsylvania opinion is Ethical Obligations of Lawyers Using Software To Track Email Sent To Opposing Counsel. So in that context, I am quite comfortable with the conclusion that anything that reports back to you anything more than delivery and opening from opposing counsel’s email should be known to opposing counsel. Certified email providers can provide notices within the email that their product is in use.

Illinois State Bar Association Opinion 18-01 is not limited to opposing counsel, however— and that is problematic. This opinion states: “A lawyer may not use tracking software in emails or other electronic communications with other lawyers or clients in the course of representing a client without first obtaining the informed consent of each recipient to the use of such software.” I understand that they were focused on those nasty web bugs. But certified email is still a form of “tracking software.” In these days of lost emails, emails that are mysteriously never delivered and spam filters grabbing emails, one can make a case that competent representation today involves making certain that a client has actually received and read an important digital communication. A process that insures that is quite different from a web bug telling you that a young client forwarded your email to his mother for her interpretation.

Lawyer regulators must appreciate that not all legal representation involves corporations with general counsel. Sometimes lawyers represent individuals who made bad decisions which led to the representation and who will continue to make poor decisions during the representation. It is a lawyer’s obligation to assist them in making good decisions— if possible. So making certain a client opened an email advising them of the change in the time of next week’s hearing or the location of their deposition sounds more like good lawyering than inappropriate spying to me. A delivery receipt alone could still mean it was trapped by a spam filter and never seen by the intended recipient.

But that’s not the only practical problem. The ABA released Ethics Opinion 477 on encryption of attorney-client email on May 11, 2017. This opinion makes it clear that some attorney-client communications cannot be sent via plain unencrypted email. The opinion notes that a hard and fast rule cannot be crafted to apply to all situations, and therefore a fact-based analysis must be applied. That could be a bit time-consuming for the law firm and mistakes may be made. Plus some individual clients may not be comfortable with the mechanics of decryption processes.

I have long believed that smaller law firms will be well-served to use client portals to share documents and other communications.  See Email Attachments vs. Client Portals. It is likely Emaileasier to get a client to log into a portal these days. They may have done something similar for items ranging from HIPAA-protected medical records to their Amazon account. Most of the cloud-based practice management systems available for lawyers include built-in client portals, making their use much quicker and easier for the law firm than other methods. It is a great client service to have all of the documents related to a matter organized and available for online client access 24 hours a day.

But, of course, online portals log everything that happens from the number of times a client logged in to the number of times they opened a particular document. These logs could also provide some protection to the attorney if a client denies ever seeing a document and the log shows the client opened it on ten different occasions. Lawyers often document their files for their protection against false claims or bad memories. Most would think that is a good business practice. Labeling these logs as unethical seems wrong to me.

Illinois State Bar Association Opinion 18-01 notes that recording of phone calls without permission is illegal in Illinois and it is therefore unethical for lawyers to record client phone calls without permission. It cites that precedent  among several supporting the proportion that web bug e-mail tracking is likewise unethical. Would it extrapolate this opinion to say that examining a client portal access log was unethical?

While that may seem unlikely to some observers, Illinois lawyers using client portals may consider documenting the client’s consent to this aspect of representation. That may involve adding language to their attorney-client agreement referencing client portals and how their logs operate to obtain informed client consent or other methods. But today most people understand that logging into a password-protected website leaves a record of your visit.

Hopefully if ethics authorities examine the web bug issue in the future, they will make note of the possibility of laws authorizing digital service of process, an ethical lawyer’s need to make certain important client communications are not lost in a spam filter and that it might be a good thing, at least in some cases, if a lawyer was aware that a client was not opening the attorney’s emails.

An old saying is bad facts make bad law. Maybe bad web bugs do, too. But “bad” is a value judgment and, to be clear, if you receive any electronic newsletter or regular emails from any electronic mailing list, the odds are the sender not only knows whether you open each e-mail, but the average time of day you open their e-mails— if not more.

Managing a Law Practice in the Age of Intelligent Machines represents my attempt to speak to those lawyers who are perplexed by the number of things they are reading and hearing about law office automation and artificial intelligence replacing lawyers. That can happen and I cite one example where it has happened already. But many, hopefully most, lawyers will be using automation and AI to better serve their clients. I hoped to provide a general framework of when automation makes sense and how the law evolves to make particular legal processes more amenable to automation.

Law firm consultant Jordan Furlong has it right. In this column, I noted his observation that lawyers should learn to fight with, not against, the intelligent machines.

Robot conference

This column was published in the March/April 2018 issue of Law Practice magazine, which is its Marketing issue.

Among the many great articles in this issue are Developing a Marketing Mindset by Wendy L. Werner, Social Media Marketing Has Gone Viral by Dan Pinnington, Moving Beyond the ‘Practice of Law’ by Jordan Furlong (Yes, him again!), Do Lawyers Need a Digital Detox? by Sharon D. Nelson & John W. Simek and The Showdown: Amazon Echo Versus Google Home by Tom Mighell.

Lawyers have been working with machines for a long time. The IBM Selectric typewriter was a law office favorite because it could save and automatically regurgitate sentences and paragraphs into documents.  That was smart technology at the time.

Leadership and management are two different concepts. But both involve working with others to reach common goals.

TeamworkLeadership in a law firm is challenging because lawyers are by their nature very independent and once a law firm has more than a handful of lawyers, there will be lawyers with a number of differing ideas and goals. The litigation lawyers look at world differently than transactional lawyers. Legal assistants often feel more loyalty to "their" lawyer than the firm. Members of a practice group may tend to see things the same way, which may be different than other lawyers in the firm.

There can be generational differences in attitude, but these differences can also be based on one's remaining time with the firm. The partner retiring next year will probably vote against spending money for major technology upgrades this year. And let's face it, some smaller law firms have a business or compensation structure that means they are really an office overhead sharing arrangement between solo practitioners instead of a single business entity, which makes implementation of projects like a unified marketing plan difficult, if not impossible.

My commute involves a bridge over the Oklahoma River, so I am often treated to seeing rowing teams practicing. The precision and coordination of a rowing team is quite impressive.

My column Unity of Direction in the January/February 2018 issue of Law Practice Magazine addresses the challenges of getting a team of lawyers and staff to all "row" in the same direction. I hope you enjoy the column.

Normally I would have been more more prompt about blogging about this column, especially since the January/February 2018 issue of Law Practice Magazine is a technology-themed issue with many interesting articles about law office technology and its impact on the practice of law. I'm sure part of the reason for the delay is that I was so enamored with Dennis Kennedy's column in that issue, Thinking Smartly about Smart Contracts, as readers recall from my prior post about it.

You do not have to be designated as a leader to assist with this. I wish each of you the best as you work to help the lawyers and staff you work with to all row in the same direction.

A few weeks ago I wrote about Dennis Kennedy's feature on Thinking Smartly About Smart Contracts. My link to his blog post had an additional link to his useful discussion of Smart contracts blockchain. It seems to me that smart contracts will catch on relatively quickly, especially with big multinational corporations doing business in many countries.

Ken Grady has written something about a vision of future of the law and legal services that merits your attention. Stagnation And The Legal Industry (Part 2) What Real Transformative Change Could Look Like contains one vision of what the law and legal services delivery could become. It is the "if I had a magic wand" scenario. He outlines some changes that are worth consideration. The challenge I see is that some of these ideas require not just changes in the legal profession's method of doing business, but in some of our current laws and practices.

Many lawyers scratch their heads when phrases like "computational law" are tossed around. Here is Ken's great explanation of this concept and the vision:

"Computational law. Documents have become computational instruments. Whether a contract, a plan, policy, memo, or other instrument, documents are written so that computers can execute them. This doesn’t mean that all lawyers must become programmers. Lawyers will work with experts in coding documents. It does mean that documents serve two purposes. First, as computational instruments, they remove from humans the need to interpret every provision of the document. Whenever possible, the document is “self-executing” removing humans from the loop. The computer can “read” and execute provisions within the document. Second, human-readable versions of the document are available (assembled by the computer) on screen for those times when humans need to be in the loop. Computational does not imply entirely removing humans; it does mean removing humans when they are not necessary.

"As computational documents, payment, terms, and default triggers are all built into the document in a way that a computer can “read” and execute the provisions. Documents use XML (eXtensible Markup Language) coding as the standard for tagging language within the document. A computer can execute the code and generate an exception report if needed. All documents are written in the same standard code (XML, in my version of the future), so documents can be read and executed regardless of the computer platform used by a party or third-party. This interoperability is important. Legal materials can’t become isolated islands.

"The same coding and interoperability concepts extend to laws. They are written (or re-written) using standard formats and XML tagging. This way, a computer can assess performance under a statute by comparing data to the statute’s requirements."

He also notes civil tort law as an example. "With modern vehicles producing gigabytes of data per second, proving liability in a simple tort case will become an exercise in big data." Privacy advocates might object that this would not be a good thing, but it is hard to argue against the idea that a data dump of an automobile version of a flight data recorder from not only the automobiles involved in an accident, but those nearby would establish fault in 99% of the wrecks.

Smart contracts are the low-hanging fruit in this discussion in my view because few to no statutory changes would be required.

Sometimes the law must be complex, but as we look at possible changes and access to justice for all as a goal, simplification is a worthy consideration. Ken's quoted language above might sound complex to some. But if he was able to wave a wand and create a universe of interoperable legal documents and contracts as code, few would ever want to go back to the old methods of operation.

When setting up technology tools, we often use the analogy of getting devices to "talk to each other." If every legal document talked to other legal documents, the results would be amazing. A client wants to expand business operations to Montana. The lawyer opens up the operating agreement that the client used last time and changes the state to Montana. The agreement reaches out to the state of Montana's machine-coded laws and provides the lawyer with a list of six instances where the differences in Montana law might impact either the agreement or this client's type of business. Acting on those six points is where the lawyer's skills and judgment come into play. The fact that what used to be a few hours of legal research has been automatically done saves the client money. The law firm still has important and strategic work to be done that requires a lawyer.

 

Most lawyers have heard of ADR (Alternative Dispute Resolution) but may not be as familiar with the subset of ADR called ODR (Online Dispute Resolution.) A good primer is contained in our Digital Edge podcast, Expanding Access to Justice through Online Dispute Resolution.

Digital handshakeOur guest, Colin Rule, is imminently qualified to speak on this subject. He notes that he was trained in mediation by the Quakers in college. He served as first Director of Online Dispute Resolution at eBay. He is now Vice President for Online Dispute Resolution at Tyler Technologies. Tyler acquired Modria.com, an ODR provider Colin co-founded, in 2017. Colin is the author of Online Dispute Resolution for Business and The New Handshake: Online Dispute Resolution and the Future of Consumer Protection.

ODR is big and getting bigger. Colin notes "We ended up resolving 60 million disputes per year at eBay, which depending on how you count, is bigger than the US Civil Court system, so that was hundreds of millions of disputes over the years that I was at eBay. But Amazon does more disputes than eBay does, and there’s another company called Alibaba, which is a big e-commerce marketplace in China that does more disputes than Amazon."

ODR is also growing in Europe. But don't be surprised if you see this coming to an area near you soon. According to Colin, the National Center for State Courts just put out a white paper discussing the development of ODR, sharing some best practices gleaned from various courts.

Check out our Digital Edge podcast, Expanding Access to Justice through Online Dispute Resolution. For those who would prefer, the Legal Talk Network now provides a transcript of the podcast at the same link.