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.

“Ask any parent and they will likely agree that parenting is a difficult job in the best of circumstances. Co-parenting during and after a divorce, where negative feelings and miscommunication have often been the case, increases the difficulty of focusing on the interest of the children. In today’s app-filled world, you would expect there to be apps to help with clear communication, documentation and scheduling between co-parents, and there are.”

Co-Parenting Woes: There’s an App for That in the March Oklahoma Bar Journal was co-authored by OBA PMA Darla Jackson and OBA MAP Director Jim Calloway. We began by OBJ2018Marchcovering the features that these apps might include and then we focus on six apps. There are other apps and we include links to several other posts and articles about these types of apps in our Endnotes. This article was requested by the Bar Journal’s Board of Editors to round out this issue of the Bar Journal and we were pleased to assist because the March 2018 issue of Oklahoma Bar Journal has a family law theme. Although some of the articles it contains may focus on Oklahoma law, but most are useful for all lawyers who practice in this area.

The complete list of feature articles includes When Billy Wants to Live With Dad: A Guide to Using a Child’s Custody Preference in Litigation, Where to Start? Preparing to Examine a Family Law Expert, Court-Ordered Grandparent Visitation, Changes to Guardian Ad Litem Reporting, Using Trust and Tax Solutions in Divorce Mediation and Co-Parenting Woes: There’s an App for That. They are all freely available from the issue’s Features page. Feel free to share this post with the family lawyers and new lawyers you know.

Discussing the future of law has become a cliché in my professional circles. Science fiction writer William Gibson's famous quote "The future is already here — it's just not very evenly distributed" seems more true than ever as I talk into my smart phone and it talks back to me just like the communicator Captain Kirk used in Star Trek.

Change StreetStephen P. Gallagher is a thought leader and deep thinker about our future. He is also a long-term friend and mentor of mine. But his area of interest isn't about the latest technology. He focuses on the challenges of human beings practicing law. His company is LeadershipCoach.usLeonard E. Sienko, Jr. is a solo practitioner in Hancock, NY.

These two teamed up to write "For Sole Practitioners, the Future’s Not What It Used to Be" in 2015 for the New York State Bar Association Journal. Some of the thoughts that they discussed then about the future of law seem timeless and others are already somewhat dated, even though it has been less than three years since its publication. Mr. Sienko is understandably proud of his career as what we would now call in futurist circles, an artisan lawyer. Today being an artisan lawyer is often referenced as the opposite of the preferred modern "lean" systems-based lawyer. I note that there are many artisan lawyers still practicing and delivering great value to their clients.

Their follow up article, The Legal Profession in Transition, Download The Legal Profession in Transition – Gallagher-Sienko-Sept17 was published in September 2017. In it, they discuss Baby Boomers in the legal profession. Sienko postulates that "The new reality is that many lawyers and others are in no position financially to retire."

The authors state:

"We believe aging of the workforce is a phenomenon that law firms and bar associations can no longer ignore, so we hope to start a dialogue about how the legal profession can better utilize the skills of older attorneys, age 55 and up, currently in the workforce. We are also hoping  to convince bar associations to create forums that would enable young lawyers to meet with experienced lawyers for support in finding their place in the profession. The third challenge we see before us will be to convince law firms to allow transition planning to begin much earlier. We believe everyone who holds a license to practice law needs to be involved in figuring out how best to take advantage of this aging workforce." [Emphasis added] 

They examine various scenarios (aka case studies) involving transitioning lawyers and note that, while part-time legal work has never been favored, this may prove to be a win-win scenario in the future. There likely are quite a few law firms that can use some experienced help from a competent lawyer who has no expectation of making partner. There likely are, and will be more, senior lawyers who have no desire to sit on the sidelines and let their legal talents go to waste, but also no desire to continue to work nights and weekends or have a billable hour quota to meet. In addition, we all appreciate that there are many lawyers who want to retire and sell their practice, but recognize that the better situation for all concerned would be for the new lawyer to work in the firm for a year or two before the retiring lawyer moves on or slows down so the purchaser can be introduced to existing clients.

There are so many good ideas in this short piece. I know a lot of bar executives follow my blog and I greatly appreciate the NYSBA giving me permission to reprint their article so more bar association professionals can read it.

I often counsel and teach new lawyers about building a practice from the ground up. It would be a much better situation for many of them to work with an experienced solo practitioner for a few years with the goal of taking over the practice. They can  Retirement gain experience and receive advice while building a rapport with clients that they hope to retain after their lawyer has retired or transitioned to a "of counsel, but on call" status. These "May-December" pairings sound positive in theory, but there is a legitimate fear of the new lawyer that the veteran lawyer might hang on—and keep hanging on.

I'd suggest that a one-year period with the new lawyer working as an employee would be enough for both sides to determine whether this is a good plan and then either the transition purchase agreement must be executed or the new lawyer should strongly consider moving on. The agreement could provide for a partnership type revenue split for another year or two as the new lawyer takes over. While the new lawyer would have to come up with some down payment, a payment schedule secured by the business assets might provide the retiring lawyer a better income stream than a cash sale as well as providing an incentive for the retired lawyer to continue to give the new lawyer a little free advice from time to time.

 

So I’m just back from a fabulous ABA TECHSHOW. A lot of tasks have accumulated in my absence. Emergencies were handled remotely with today’s technology. But, ABA TECHSHOW, at least the way many of us do it, is a dawn to late night experience, so things that can wait do wait. Long ago when I was a much younger lawyer, I learned something from a stellar legal assistant that I still observe today. She called it “First Day Back.” She said a lawyer should never voluntarily schedule anything for the first day back after an extended absence. There may Lean Law Firm Book be something really urgent that happens and must be dealt with ASAP. But mainly it is because the First Day Back is a good time to clear out all of the accumulated pending tasks, catch up on the mail and handle other things to prepare for a productive week.

The surprising thing today involved going through the mail. (How retro, right?) I received two new books from the ABA Law Practice Division. One was The Lean Law Firm: Run Your Firm Like The World’s Most Efficient and Profitable Businesses by Larry Port and Dave Maxfield. Larry Port is the CEO and Founding Partner of Rocket Matter and Dave Maxfield is lawyer from South Carolina who notes in the forward of the book that every minute of his 24 years of law practice has been in a two-lawyer firm or as a solo practitioner. This should be noteworthy to all of the small firm lawyers who have mentally filed away Lean, Six Sigma and other management practices as for the big law firms and not for them.

The words on back of the book caught my attention by stating it was the first book published by the ABA “to employ the graphic novel to teach business lessons.” For those who don’t know, the term graphic novel often refers to what some of us of a certain age used to call comic books. So I opened the book to read a few pages and, no, it is not a comic book. But it captivated me for 24 pages with its opening story before I was forced to put it down. So this isn’t a book review. I’ve only read 24 pages. But the book is going to stay on my desk instead of immediately going into our OBA MAP Lending Library and I’ll order another copy for the Lending Library this week. That should tell you something.

First Day Back is perhaps not a Lean process, but it kept something important from slipping past me in a rush of office appointments today.

I recently published Time-Saving Microsoft Word Customizations and Tools in the Oklahoma Bar Journal. As Barron Henley of Affinity Consulting frequently notes, one of the challenges of Microsoft Word is that you can work with it for years and your skills won’t improve much because so many of the powerful tools within Word are hidden so deeply you would never stumble across them. Microsoft Word 2

In this column I discuss a few basic features of Microsoft Word that are very useful for lawyers. But for those who have not done so the real “gold” in this column is learning how to add the items you frequently use to the Quick Access Toolbar and how you should customize the Status bar. Many Word users will find that they will save several minutes every day just by adding the email Command to their Quick Access Toolbar because, in my world at least, you often want to email a document immediately after you have completed and saved it.

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It is one of the most exciting weeks of the year for many legal technology experts. It is the week of ABA TECHSHOW.   ABA TECHSHOW is many things. I’d encourage practicing lawyers to attend at least once. Among these many things is that it is a gathering of some really smart people working as, or with, lawyers.

One of the greatest honors of my professional career was being asked by the 2012 ABA TECHSHOW Board, under the leadership of then-chair Reid Trautz, to give a keynote plenary Future loadingsession on the future of law. I was honored but nervous because the audience included my peers, my friends and as noted, many really smart people. You can read the ABA Journal’s coverage of that talk, titled The Future of Law: Dark Clouds or Silver Linings?

In January 2018, I wrote a column for the Oklahoma Bar Journal titled The Future of Law. The 2012 talk was intended to be very broad and give lessons to all lawyers about how to succeed in the future. The 2018 column was focused on several recent trends and how they were going to impact the practice of law. I thought regular readers might appreciate the opportunity to compare my 2012 predictions with my 2018 predictions. To me, the most interesting thing was how many things I mentioned in the 2018 column that either didn’t exist or existed only in laboratories and theory in 2012.