First Amendments Rights versus Security – What side should an attorney be on when it comes to his firm's software.

Last week, I discussed educational bodies banning photos taken at school from being posted on social media – “Self- Awareness in the Wild, Wild West World of Zoom” (posted September 14, 2020).  There are inherent First Amendment rights issues:  Students’ ability to talk openly with the public about what they think about their school, classmates, and faculty versus other students’ ability to have open discussions of thoughts, popular or not, without the fear of public scrutiny and (verbal and physical) threats.  Now the Courts have provided us a new lens to discuss this balance.

CNN reports that a Federal Judge in California has stayed the Government’s download ban of WeChat in the United States.  WeChat is a popular social chat application (app) that allows people to talk around the world.  The Plaintiffs note that WeChat is one of the very few chat apps that the Chinese Government allows to be used in its country.  Plaintiffs argue that their ability to communicate with others in China will be significantly interfered with if the ban were to be allowed.  The Government contends that there is a security risk, and its use should not be allowed in the U.S.  The judge determined that at this point, the Government has not provide[d] enough evidence that it is narrowly tailored to resolve the US government's national security concerns with respect to the app.  So, the ban is stayed, for now.  But, the question that needs to be asked by attorneys is, what does this mean for us?

Obviously, if a software program is banned in the U.S., we cannot use it:  It’s illegal.  But our concerns go beyond just whether or not software, hardware, or cloud service is “banned” in the U.S.  We need to consider whether it is safe to use.  Rule 1.6(c) requires us to secure our clients’ confidential information.  Rule #1.1, Comment, #8, requires us to be up to date in our knowledge of technology and how we use it to practice law (or at least have third party assistance in its use).  The concern for attorneys should be when pieces of technology have glaring red flags that they may want to find another platform to do their clients’ work.  Otherwise, they may find themselves with a bar complaint or two?

MTC

Self-Awareness in the Wild, Wild West World of Zoom. 🤠

I came across an ABA article recently where Harvard Law School is arguing comments made in a classroom setting should not be placed on social media.  In this instance, a student was observed cleaning his gun during a zoom class.  A fellow student took a screen capture of the other and posted it on social media with commentary.  Harvard took offense and has created a policy to prevent future action - it reflects on some issues we should consider and a reminder of the ongoing big takeaway.

(Remember, this blog let alone this post is not offered to provide legal advice, nor does it create an attorney-client relationship between blogger and reader.)

First, whether we appear in court or a classroom, via video conference or in person, we are in "public".  There is no general video conference exception in the law (at least that I am aware of).

Second, there is no classroom-student-teacher "privilege".  There is an attorney-client and doctor-patient privilege.  But, I have not heard that "classroom-student-teacher 'privilege'" been proposed by the ABA.

Lastly, while schools may have more authority to inhibit speech on school grounds, facilities, and newspapers, this policy seems to really smack against the student-poster's First Amendment Rights to free speech.  Moreover, the posting of a fellow student cleaning his gun while in class has not been referenced to any deliberative discourse he made in class. Indeed, if he actually brought a gun to an in-person class, there would be an immediate safety concern.  Recall the GA student who was suspended (and later reversed) for posting a hallway shot of her school not following social distancing for COVID.  Assuming he/she did not use the school's social media channels to make the post, this could all be fair game.

I don't know the answers to this. Given the recent explosion of Zoom meetings in various context due to COVID, various laws related to it will need some time to catch up.  But there is a takeaway:  You need to be mindful of what you are doing during a video meeting, conference, hearing, etc.  Wear pants (be mindful of what you are wearing), don't bring weapons (be mindful of what you are doing), and be careful what can be viewed behind you (be mindful of your setting).  The ease of sending something on social media and the lack of editorial filters makes it a matter of several simple clicks for the world to know something you did not mean to share.  And the internet has a long memory.

MTC

If Lawyers can work from home and law students can be taught while at home, why can’t bar examinees take their exam from home?

I am empathetic to the potential bar examinee this autumn.  They have worked hard for the past three to four years for this one test that will determine their future economic status.  While this is certainly stressful enough, the pandemic has impacted our economy.  Even those graduates who are lucky enough to have a job now (especially those who need not worry if bar passage is necessary to maintain their current job) will have to take time off (and lose money) to study for the bar.  But the uncertainty if the bar exams will even take place can only add to their anxiety.

I’m writing this editorial for this blog because we have the technology to allow examinees to take the exam remotely, e.g., the safety of their home.  Many attorneys have adjusted to shifting their work from their brick and mortar office to their home office.  Law Students have moved from the school classroom to virtually attending and taking exams remotely from their homes.  These shifts have all relied on technology and can easily be adjusted for bar examinees.

The Bar Examiners can monitor examinees through some video-conferencing application.  There are exam programs that lock out the hard drive except for the exam program (and perhaps the video-conferencing application).  I don’t think the Bar Examiners have to worry about the test takers cheating, e.g., looking at prewritten material, law books, and stuff online, as many of us recall the “open book” exams were a crutch.  You don’t have time to “cheat” given the structure of and time allotted for the exams.

There are still some states requiring in-person exams.  I do not think a bar applicant should have to choose obtaining a livelihood versus risking his/her own life and those around them.  The Bar Examiners need to catch up with today’s technology – when was the last time a lawyer was constrained to only using their memory of the law, no research materials, and all in a three-hour sitting when writing a brief?

It sounds like they may be committing malpractice if they did that! 😯

Etiquette/Ethics Tip: In e-mail, don't hit "Reply All"!

Don’t be lazy with your e-mail correspondences!

Human nature tends to be a little lazy, especially when it comes to taking simple steps instead of us "thinking" before we act. It's easy to see an e-mail with many cc:ed recipients, and instead of scrutinizing who these parties are, we just hit "Reply All." The problem is we may not be making just a faux pas but a bar complaint as well!

Depending on your practice, you may be cc:ing your client to help keep him or her reasonably informed. Likewise, your opposing party may be doing the same with their clients. 

But in doing so, it may not give you the right to e-mail, indirectly, your opposing party.  In other words, your response to the opposing counsel's e-mail probably should not include her or her client(s).

Granted, Attorneys like to keep control of the information flowing through them, not concurrently with them. And you want your opposing counsel to show you the same courtesy as you would expect him or her to do with you. Plus, failing to do so could lead to a bar complaint!

ABA Ethics Model Rule 4.2, Communication with Person Represented by Counsel, provides:

Transactions With Persons Other Than Clients

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

So depending on your state rules, a little bit of laziness could lead to a bar complaint.

Rule of thumb, don't hit "Reply All." 

Do Lawyers & Law Firms need Employee Monitoring Software for Remote Employees - Even if it’s reliable is it worth it?

Last week, the New York Times (NYT) came out with an article about employers remotely monitoring their employee computers. The COVID-19 Pandemic has increased the "shift" from on-site work to work from home. And employers understandably want to make sure they are getting the same bang for their buck – that is, are their employees working just as hard at home as they do at the office?

The NYT's article highlights an employee-monitoring program made by Hubstaff. The employee installs the program onto their "work" computer (and we are going to come back to about what is a "work" computer a little later). The employer is then allowed to monitor the employee's computer use. The program works for the most part – the employer is allowed to see much of what the employee is doing throughout the day. But to summarize the intrusion level, the supervisor for Adam Satariano, the author of the NYT article, says it best, "ick."

"Ick" in the sense that Adam's supervisor was able to see an internet workout class Adam had been a participant. Granted, Adam forgot to log out of the program before he moved on for the day. Monitoring software may "o.k." for large firms who can afford to provide each of their employees with an individual laptop. But for those of us with limited resources, e.g., solos and small practitioners, we rely on our staff (or contractors) to have their own computer. And if I were one of those "employees," I would not be letting my boss put a monitoring program on my personal computer. But this type of intrusion does not reflect that there is a more significant problem at hand.

Apparently, when employers require their staff to use this type of tracking software, their "productivity" goes up! But "productivity" in the legal field cannot be solely defined upon computer use. Sure, research, typing documents, and reading and sending e-mailing are done on the computer. But, you are not always on the computer during meetings, traveling to and from those meetings, or traveling to or appearing in court. And what about courts and other venues that don't allow electronic devices. What if, GASP, you are reading a paper copy of a book? Or work better handwriting your thoughts? Or better yet, have a bunch of programs running and not actually working! The problem of using a tracking program in "law practice" is that it does not address the most crucial question: Is your staff actually practicing law?

I think lawyers are more concerned with quality work and meeting deadlines. These programs can only monitor quantity. It cannot track the "quality" of the employee's work product. And quite frankly, if you cannot rely on your staff to meet deadlines with quality work, no employee monitoring software program is going provide you with the protection you will need from a bar complaint resulting from shoddy work.

First Day Thoughts at ABA Techshow 2020

I'm attending my second ABA Techshow this year!

Its great being around people interested in better-utilizing technology in their practice. On my first day, I attended several sessions on some core concepts using pdfs, automating workflows, and better marketing online. 

These sessions have been perfect for the new and moderate tech users. As a more advanced computer user, I would have appreciated a more granular (step-by-step) approach. But, I can confidently say that from each session, I have learned at least one new thing that will individually enhance my practice. I have a feeling that regardless of your technology skills are you can learn something - perhaps at ABA Techshow 2021!