My Two Cents: The Perils of Attorney Social Media Disclosures: Upholding Integrity and Protecting Clients' Interests. Or the Right and Duty to Remain Silent.

Attorneys must be cautious using social media when it relates to their ongoing cases!

In the age of social media dominance, individuals across various professions have embraced the power of online platforms to express their thoughts, opinions, and personal experiences. However, attorneys, as guardians of justice and trusted advocates, must exercise caution when engaging in social media discussions especially when their cases have yet finished in court. Recent events, such as the case highlighted in the article "Attorneys' Social Media Posts Cost Client $1.5M and Lawyers are Divided About It" by LegalTech News, along with the controversial behavior of former President Donald Trump in discussing his government criminal cases, have underscored the urgent need for attorneys to abstain from discussing ongoing trials on social media. Attorneys should refrain from such practices, emphasizing the potential risks to their clients' interests and the integrity of the legal profession.

The obvious should be Preserving Client Confidentiality and Trust. The cornerstone of the attorney-client relationship is trust and confidentiality. Attorneys must ensure that their clients' information remains confidential and protected from unauthorized disclosure. Engaging in social media discussions about ongoing trials can inadvertently breach this privilege, potentially damaging the client's trust and undermining the attorney's credibility.

You don’t want a mistrial because you prejudiced the Legal Process. Discussing ongoing cases on social media platforms can compromise the fairness of legal proceedings. Such disclosures can introduce bias, prejudicial information, or potentially taint the jury pool. The attorney's duty to uphold the integrity of the legal system necessitates avoiding actions that could undermine the objective pursuit of justice.

An attorneys use of social media can get unwanted attention from their state bar association!

We must Maintain Objectivity and Impartiality.  Attorneys have a professional obligation to approach their cases with objectivity and impartiality. Expressing personal opinions or biases on social media regarding ongoing trials can call into question their ability to provide fair and unbiased representation. Publicly taking sides or making premature judgments can hinder their capacity to advocate effectively for their clients.

We should avoid creating Conflicts of Interest and Client Diversification. Sharing case-related information on social media may inadvertently lead to conflicts of interest or compromise the attorney's ability to handle other cases effectively. Publicizing details or opinions on one case could potentially affect the attorney's relationship with other clients, undermining their ability to represent diverse interests without bias or prejudice.

We don't want to Jeopardize Our Client's Interests. As Attorneys, we are duty-bound to act in our clients' best interests. By discussing ongoing cases on social media, attorneys risk revealing confidential information or strategic details that could harm their clients' positions. Such disclosures may enable opposing counsel to gain insight into the attorney's legal strategies or provide them with an advantage during trial.

We should prevent Pretrial Publicity and Jury Bias. Social media posts by attorneys can generate widespread publicity, attracting undue attention to the case and influencing public perception. This increased exposure may make it challenging to impanel an impartial jury, potentially leading to biased judgments or unfavorable outcomes for the client. Preserving the integrity of the legal process demands restraint from attorneys in publicizing ongoing cases on social media.

Trump’s social media postings have likely affected his purported upcoming criminal trials…

The Trump Factor: A Cautionary Tale (whether you are for or against him). The highly publicized government criminal cases involving former President Donald J. Trump provide a cautionary tale for attorneys. His frequent and controversial social media commentary on legal matters highlighted the potential pitfalls of mixing public opinion, personal agendas, and legal cases. Trump's approach underscores the importance of discretion and the potential consequences of disregarding professional boundaries. Attorneys must learn from these examples and avoid compromising their professional responsibilities by engaging in similar behavior.

Attorneys bear a significant responsibility in upholding the principles of justice, maintaining client confidentiality, and preserving the integrity of the legal profession. Engaging in social media discussions about their ongoing trials risks compromising these crucial aspects, potentially harming clients and undermining public trust. By exercising caution and discretion, attorneys can ensure they fulfill their professional obligations while safeguarding their clients' interests. Social media can be a valuable tool for attorneys to connect with the public and engage in meaningful dialogue, but it must be used thoughtfully and responsibly to avoid unintended consequences.

Why does this matter? Attorneys should strive to maintain decorum and protect the sanctity of the legal process by refraining from public discussions on social media platforms for their ongoing cases.  Because if you haven’t realized it, every paragraph above could serve as a basis for a potential bar complaint.  And you don’t want that!!!

My Two Cents: Anchoring Your Firm in The Cloud is Not a Great Idea!

IMHO it is not best practice to base your office in the cloud!

I think that online cloud backup and access has really revolutionized how attorneys and the world work! In addition to be able to access your office files anywhere, the security of having additional backups constantly updated and offsite provides an extra layer of relief. Heavens forbid the office catches on fire or someone steals your computer!  But basing and running your firm from the cloud is IMHO a big mistake.

Earlier this month, Microsoft 365, the online office suite, had an outage issue. As Tamal Nandi of Mint reports, “The company said that it was “investigating an issue with accessing Outlook on the web" in a Twitter thread posted on its Microsoft 365 Status account — and added that a “downstream impact" was also identified for Microsoft Teams, SharePoint Online and OneDrive for Business. Microsoft 365 Status later said it had reverted an update and saw an improvement in service — soon confirming recovery for impacted services.” This gives me no ease of mind in using this product. Your work is hosted on the cloud; not on your computer. So, when the host “misplaces” or “losses” your information, it will sync and remove the information from your computer. And then you’re SOL!

Nobody wants to be discover their e-mail has vanished!

I believe I may have been a victim of this as I use 365.  I was understandably freaked when my inbox had zero e-mails!  Note, I only use Outlook for the blog (not the firm and I’m looking for something else for the blog) and I don’t use OneDrive for any of my projects. As a lawyer, can you imagine your inbox emails just “disappearing?” Lawyers have a strong fear of missing out – this is understandable as if you miss an urgent client e-mail or a court notice that you fail to follow up on, it could be your job and possibly your law license.

Granted, it appears that this has only affected thousands maybe tens of thousands out of Microsoft’s million-plus users.  But apparently, this has been a recurring theme for at least this year. And solo and small firm practitioners certainly don’t want to find themselves as being one of the lucky "thousands” of Microsoft users without their inbox – temporarily or permanently.

I don’t know how to reverse backup from the cloud. But by using my computer as the main host of my work, I know I can easily make multiple backups.  My suggestion is to look carefully at the cloud CRM you are using and make sure that you have your “office” based on your computer versus their “cloud” host.  PS: It is one of a few reasons why I use Daylite as my CRM.

MTC.

Happy Lawyering!!!

My Two Cents: The Intersection of AI and eDiscovery: Embracing Technology without Overriding Human Judgment

To what extent can artificial intelligence truly assist attorneys in the realm of e-discovery? 🧐

In the realm of eDiscovery, the integration of artificial intelligence (AI) has revolutionized the way legal professionals handle vast amounts of data. The benefits of AI in enhancing efficiency and accuracy are undeniable, but it is essential to strike a balance between leveraging technology and the invaluable human judgment required for the final result. In a recent Shout Out! featuring previous podcast guest and past guest host Brett Burney, his discussion shed light on the symbiotic relationship between AI and human expertise in eDiscovery.

The Power of AI in eDiscovery:

AI has emerged as a powerful tool in eDiscovery, allowing legal professionals to tackle complex tasks more efficiently and effectively. With the capability to process and analyze massive volumes of data, AI algorithms can identify patterns, extract relevant information, and predict case outcomes with remarkable speed and accuracy. This technology enables legal teams to save time, reduce costs, and gain valuable insights that would be otherwise challenging to uncover manually.

The Role of Human Judgment:

While AI provides indispensable assistance, it is important to recognize that it is not a substitute for human judgment in the final analysis. Brett emphasizes that its human judgment that should be the final editors.  Human expertise and insight remain irreplaceable when it comes to interpreting the context, understanding nuances, and making critical decisions. Legal professionals possess a unique ability to consider multiple perspectives, exercise discretion, and apply legal reasoning based on their experience and understanding of the case at hand.

The Synergy of AI and Human Expertise:

Artificial intelligence does not replace human judgment when lawyers conduct ediscovery.

By embracing the synergy between AI and human judgment, eDiscovery practitioners can harness the full potential of technology while ensuring a comprehensive and well-rounded approach to legal matters. AI algorithms can help legal teams streamline the initial stages of data processing, categorization, and information retrieval, empowering them to focus their attention on the strategic aspects of case analysis. This collaboration enhances the efficiency of legal workflows and augments the ability of legal professionals to uncover crucial insights buried within extensive data sets.

The Ethical Considerations:

While AI is a powerful ally in eDiscovery, ethical considerations must be at the forefront of its implementation. Transparency and accountability are paramount to ensure fairness, as biases embedded within AI algorithms can potentially impact the results. Legal professionals must exercise caution when relying on AI predictions and should employ critical thinking to validate and interpret AI-generated outputs. Human oversight becomes crucial to identifying and mitigating any biases or errors that may arise during the AI-assisted eDiscovery process.

The Professional Ethical Considerations:

The lawyer responsible for the final discovery deliverable to the opposition will be held legally, e.g., malpractice, and professionally, i.e., responsible to their bar association, accountable.  If you are going to rely on AI for your “eDiscovery” then you need to know its limitations.  MR 1.1[8] Further, you need to somehow address its shortcomings before you hand over your discovery production. Regardless, check your work!

The Future of AI in eDiscovery:

AI and Lawyers can work together to better an ediscovery response!

As technology continues to evolve, the future of AI in eDiscovery holds immense potential. Advancements in machine learning and natural language processing will further refine AI algorithms, enabling even more precise analysis and prediction capabilities. However, the significance of human judgment will persist, as the complex nature of legal cases necessitates the application of legal principles, strategic thinking, and ethical considerations that only humans can provide.

Conclusion:

The integration of AI in eDiscovery has transformed the legal landscape, empowering professionals to navigate through vast amounts of data efficiently and uncover crucial insights. However, it is essential to acknowledge that AI is a powerful tool that complements rather than replaces human judgment. By embracing the synergy between AI and human expertise, legal professionals can capitalize on the advantages of technology while ensuring a comprehensive and nuanced approach to eDiscovery. As the field continues to evolve, the harmonious collaboration between AI and human judgment will shape the future of eDiscovery, delivering improved outcomes and justice in the digital age.     

MTC.

Happy Lawyering!!!

My Two Cents: Attorneys can limit client expectations in the world of 24/7 e-mail.

Set client expectations early with how and when you use e-mail!

E-mail can be a godsend for attorneys. E-mail messages offer attorneys the benefits of time efficiency and convenience. With e-mail, attorneys can quickly communicate with clients and colleagues without the need for a physical meeting or phone call. E-mails can also be sent and received at any time, allowing attorneys to work outside of traditional business hours. Additionally, e-mails provide a written record of communication that can be easily referenced in the future. Many benefits can be weighed down by unintended consequences.

It is important to set boundaries and expectations with your clients from the start. That does not mean we don't work nights and weekends. After a long day or long week, it's great to clear out your e-mail inbox after dinner or a Saturday afternoon. When clients and colleagues get e-mails at any hour on any day, it creates the expectation that we are available all day, all week. I don't think we really want this, as we are entitled to some personal time.

Its nice to get a handle on e-mail communications during quiet evenings and weekends … but take measures so client’s don’t expect immediate results 24/7!

To help keep the illusion that I don't work 24/7, I use a program called Mailbutler (Mac and Windows and can be used in Outlook, G-Mail, and Apple Mail).  It allows me to write e-mails and then schedule them to send later, e.g., the next workday. There are many similar programs like this, and many of the e-mail client programs are beginning to bake this into the software. (Just be careful you don't have to keep the program open in order for the send later function to work!)

Granted, e-mail has become a preferred method of communication for attorneys due to the expectations of our clients and colleagues, but it does not mean you cannot limit expectations while getting some work done behind the scenes!         

MTC.

Happy Lawyering!!!

Monday Morning Humor * My Two Cents: Even John Connor Knows Lawyers Should Not Blindly Rely on AI to Do Their Work!

The concept of relying on artificial intelligence (AI) to perform complex tasks has fascinated humanity for years. However, even in the action-packed world of Terminator 2: Judgment Day, a young John Connor understands the limitations of AI. Lawyers, like other professionals, should also exercise caution when relying solely on AI to handle their work.

In Terminator 2, John Connor, the future leader of the resistance against machines, witnesses the rise of advanced AI in the form of Skynet. He learns that this AI, designed to protect humanity, eventually turns against it. The movie serves as a cautionary tale, emphasizing the importance of human judgment and decision-making over blindly relying on AI systems.

AI has made significant strides in the legal profession, offering benefits such as improved efficiency, document analysis, and predictive analytics. It has the potential to assist lawyers in managing large volumes of information and identifying patterns that might otherwise go unnoticed. However, blindly relying on AI without human oversight poses risks. AI algorithms, no matter how advanced, lack the ability to fully comprehend complex legal nuances, ethical considerations, and the unique context of each case.

John Connor's understanding of the limitations of AI applies to the legal profession as well. Lawyers possess valuable skills that go beyond data analysis and computation. They have the ability to understand the emotional and personal aspects of legal issues, negotiate, interpret laws, and provide clients with tailored advice. Human judgment, empathy, and creativity are vital components of legal practice that AI cannot replicate.

AI-powered tools can assist lawyers, but the ethical and legal implications must be carefully considered. Issues such as bias, privacy concerns, accountability, and transparency surround the use of AI in the legal field. Lawyers have a responsibility to maintain client confidentiality, exercise independent professional judgment, and ensure the fairness and integrity of legal processes. Blindly relying on AI systems without proper oversight may lead to unintended consequences and compromise the principles of justice.

Just as John Connor recognizes the limitations of AI in Terminator 2, lawyers should exercise caution when relying on AI to perform their work. While AI has the potential to enhance legal practice, it cannot replace the judgment, expertise, and ethical considerations that human lawyers bring to the table. Balancing the benefits and risks of AI is crucial in maintaining the integrity of the legal profession.

MMH and MTC!

Happy Lawyering!

My Two Cents: If you are going to use ChatGTP and its cousins to write a brief, Shepardize!!!

AI does not replaced doing your homework! Shepardize!!!

An attorney in New York learned the hard way that ChatGPT is not a reliable source.  A lawyer representing a man in a lawsuit against an airline used an artificial intelligence (AI) program, ChatGPT, to assist in preparing a court filing. However, the AI-generated content turned out to be entirely fabricated. The lawyer cited nonexistent court decisions and quotations in his brief, which were not found by either the airline's lawyers or the judge. The lawyer admitted to using ChatGPT for legal research and claimed he was unaware of the program's potential for providing false information. The judge ordered a hearing to discuss potential sanctions. The incident highlights the debate among lawyers regarding the use of AI software and the need to verify information provided by such programs.

Chatgpt has been known to not only be wrong at times but also make up stuff!

I look at it this way: If your new clerk handed you their first draft, you would double-check the work and likely Shepardize the citations; I don’t think I have to preach that Shepardizing cases before filing a brief is usually the rule of thumb. Rule 1.1[8] requires attorneys to keep a reasonable understanding of the technology we use and how to use it. This inherently includes knowing technology's limitations and flaws. Something the NY attorney conceded he did not do with his use of ChatGTP.

Know the aba model rules and your state bar rules of ethics!

Rule 1.1 [1, 4 & 5] requires an attorney to act with competence. In this case, I have a feeling Mr. Schwartz did not follow this rule - he did not check his case law. I have some empathy for Mr. Schwartz.  But I also have a feeling the bar will not feel the same way.       

Happy Lawyering!!!

MTC.

My Two Cents: What is DALL·E 2 and How Can Lawyers Use It!

DALL·E 2 can help supplement the creative skills attorneys may lack when it comes to creating visual concepts. DALL·E 2 is an artificial intelligence model developed by OpenAI. It is a variation of the GPT-3 language model trained to generate images from textual descriptions. DALL·E 2 can generate original, high-quality images by interpreting and synthesizing textual prompts.

Lawyers, like professionals in various fields, can find several reasons to use DALL·E 2 in their work. Here are the top five reasons lawyers might consider using DALL·E 2:

1. Visual Representation: DALL·E 2 can generate visual representations of legal concepts, scenarios, or evidence described in text. This can be particularly useful in courtroom presentations, client meetings, or legal documentation, where visual aids can enhance understanding and communication.

2. Depicting Scenarios: Lawyers often need to convey specific situations or scenarios to clients, judges, or juries. DALL·E 2 can help in creating visual representations of these scenarios, making them more relatable and easier to comprehend.

3. Conceptualizing Ideas: Sometimes, legal concepts can be complex and challenging to grasp. DALL·E 2 can assist lawyers in creating visual metaphors or illustrations to simplify abstract ideas and make them more accessible to others involved in a case.

4. Creative Visual Content: Lawyers may require engaging visual content for marketing, presentations, or educational materials. DALL·E 2 can generate unique and customized images to create visually appealing and informative content, helping lawyers stand out and effectively convey their messages.

5. Designing Infographics and Charts: Lawyers often use infographics and charts to present data, statistics, or comparisons. DALL·E 2 can aid in generating visually compelling infographics and charts, allowing lawyers to communicate information visually and improve the overall impact of their presentations.

It is important to note that while DALL·E 2 can provide valuable visual outputs, it is still an AI model and may not always accurately reflect real-world legal scenarios. (The photos on the carousel to the right are the results when I asked DALL·E 2 to generate a blog post picture discussing DALL·E. The results were disappointing.). It should be used as a tool to support legal work rather than a substitute for legal expertise and professional judgment.

MTC

My Two Cents: In celebration of the World Wide Web's 30th Birthday, a look back on how it changed how lawyers work.

The World Wide Web (WWW) celebrated its 30th Birthday on April 30th! Introduced as a "global computer networked information system," it, as the Wall Street Journal puts it, "establish[ed] an information sharing-and- retrieval system that enabled the websites we still use today!" The Internet has changed how lawyers find, consume, and share information today and very well into the future! Here are some examples:

Access to Law: One significant impact is the emergence of other legal research platforms, which have disrupted traditional platforms' monopoly on delivering legal information. The competition has eased access and lowered the cost of these providers. Meanwhile, the availability of the WWW significantly decelerated the need to visit brick and motar law libraries for legal research. (The first more subtle deceleration being "libraries" delivered on CDs.) When was the last time you had to spend time running down to the library hoping the right book was correctly shelved (or was that just in law school where students may hide books from others? 🙃). All the while hoping to get your work done before it closes. Does anyone remember how to Shepardize case law by book? 🤪

Competition: The WWW has increased competition and greater accessibility for clients seeking legal services. Multiple lawyer review sites (many, IMHO, are worthless) allow potential clients to review others' experiences with lawyers to help them find the right attorney (meanwhile, Google Business seems to be taking over many of these "review sites"). Lawyers can now reach potential clients through the WWW, targeting a specific client criterion - age, interest, location, etc. - Just make sure you are following the appropriate state bar rules!

Global Access: The scale of law firms has also changed due to the WWW, with law firms now able to operate across different jurisdictions and reach more clients globally. (Just make sure you follow the various bar association regulations for each jurisdiction (if necessary) along with your own!). The WWW has changed law firms' staffing composition structure in two critical ways, both pre- and post-hiring models. Before hiring, law firms now have access to a more extensive pool of candidates through online job postings, social media platforms, and professional websites. After hiring, the Internet has affected how law firms achieve client outcomes by providing lawyers with quick and easy access to legal research databases anywhere they have access to a computer and the Internet. This allows them to stay up to date with their cases, work from almost anywhere, and not be too constrained by time zone differences (I once had a clerk working remotely by 12 time zones - we'd talk in my morning/her evening or visa vie. It was great! I'd go to sleep and wake up with her done and delivered!!!). This has also affected the need for or at least the size of brick-and-mortar offices.

"Brick & Mortar" Footprint/Work From Anywhere: The democratized Internet has made it easier for lawyers to access users through e-mail and social media. With web e-mail, users can access their e-mails from anywhere in the world. This helped start a growing trend of lawyers practicing in virtual offices. Virtual offices allowed many solo and small firm practitioners to forgo the need for costly downtown office space and allow them to work from their own office at home. This practice grew when the COVID pandemic required traditional "brick and mortar" offices to shut down and force many to work from home. People saw the advantages of working from home, like saving time traveling to and from work, saving office leasing monies, flexibility in working from home and getting more work done without water-cooler distractions. Plus, Chatbots, VOIP allowing virtual receptionists, and other customer service applications have enabled online conversations between firms' lawyers and their clients from anywhere, enabling more efficient communication and delivery of legal services.

Saving Trees and the Environment: Cloud-based technologies have also allowed for repositories and digital platforms, eliminating the need for multiple paper copies for "physical" discovery production, courier services to deliver stacks of paper documents, and keeping an up-to-date copy of your office file on paper when you travel. All of this can easily be maintained on a computer tablet or laptop. With mobile phone data roaming and Wi-Fi, lawyers can sync their computers with other office members instantaneously to keep a client's file up-to-date. Plus, lawyers can stay up-to-date with current laws and precedents on-the-go without any hassle.

Ease of communications with the courts and agencies: The WWW has changed the legal landscape by introducing court electronic filing systems that allow lawyers to file legal paperwork online. A filing deadline typically means until midnight (but confirm with your court and judge's rules and orders). In the past, in order to meet that deadline, you'd need to have your brief done earlier: You would need to print an appropriate number of copies, run down to the courthouse, and submit it at the court midnight drop box (I've done a couple myself). But now that time can be used to finalize your brief as you can file it (for many courts) online! Meanwhile, judges and lawyers can also collaborate more efficiently using e-mail. Additionally, the WWW has made it easier for lawyers to share information with colleagues worldwide, making group communications instant regardless of the time zone. 

A Mixed Blessing? As lawyers became more reliant on the WWW to do their work, they also have had to contend with many problems that come with it. Granted, the days of slow dial-up internet speeds are long gone! (Oh, the dreaded communications sound when you first connnect!) But the internet did bring on online computer bugs or viruses crashing, erasing, or holding hostage our law firm's computers and information? On the other hand, lawyers need not wait for or go out and purchase new CDs (which recently turned 40) every time there is an update in their computer's operating system, law library, anti-virus and other software programs; they can just download it from the net! Yet, spam and faux e-mails, instant messages, and the like, are bombarding our individual internet windows with lottery wins in foreign companies, a long-lost relative needing cash immediately, and offerings that are just too good to be true! 🙄 And of course, when the internet goes out, our access to the cloud "disappears!" This blocks access to our work and worse yet to the court we need to make that midnight filing!!!

The WWW has significantly changed how legal professionals approach their job since its release in 1993. Technological developments have transformed our paper-based profession into an evolved work requiring lawyers and clerks to improve their typing skills, their knowledge of technology and software, and adapt to digital platforms. THE ONE THING THAT HAS NOT CHANGED is as a lawyer, you must check your work and your staff's work - Use reliable sources on the WWW, make sure the results from your computer's calendar due date calculation and spell check programs are correct, and check the writing and sources from anything you draft in ChatGTP - it's been known to sometimes get things wrong and just to make stuff up! 

MTC.

Happy Lawyering!!!