My Shingle

Blogging to Change the World

Carolyn Elefant — Thu, 26 Jan 2012 15:03:23 +0000

Update (1/26/12, 11 am) Here’s Scott’s post, Un-Optimization, which was also referenced by Kevin. Read the post yourself, but as I interpret it, Scott argues you can’t have it both ways: if you write what you believe in or what is controversial, you take a chance that you will offend or drive others away. If you blog to voice an opinion, that risk won’t bother you, but if you are blogging to market, the risk will be too great. That, as I understand is why Scott believes blogging to opine and blogging to market are incompatible but READ HIS POST!! I am not sure that the continuum is as black and white as this (which goes back to Jamison’s point) but that is because if my principles were important enough, I’d voice my opinion without compromise (that’s why I’m stuck in the Rakofsky lawsuit). On the other hand, if the issue didn’t matter so much to me and would offend, I suppose I would back away. What a lawyer’s line. Anyway, this issue has been beaten to death but if you want to jump in for another round, feel free.

Every so often, the familiar conversation crops up in the blogosphere over why we ought to blog? My buddy Kevin O’Keefe sells blogs, so of course, he’s bullish about their importance to the legal profession. Except, if you’ve ever met Kevin, you know that this isn’t just a sales pitch; he actually believes this stuff.

Other bloggers believe this stuff too. As Kevin notes, Scott Greenfield blogs to let people know he was here [update: see comment above]; Jamison Koehler blogs to share his love of the law and desire to engage other bloggers, but he’s also frank in noting that there’s a residual marketing benefit that he derives from his efforts.

I’ll admit, that I don’t get as agitated by others by flawging (except if there’s ghostwriting involved, I consider deceptive. But blogging for the sake of SEO only may not be wrong, but it’s a waste of a medium that empowers individual lawyers to do great things.

Take a look at a companion post I wrote long ago about why I blog. What’s your reason?

To Blog Right, You Need to Imagine Your Audience

Carolyn Elefant — Thu, 26 Jan 2012 14:00:40 +0000

Of all of the commandments of blogging, know and write for your audience ranks at the top of the list. But for those who blog to silent crowds who never email or send comments, the primary source of information about our readers comes through statistical data generated by our stat counters on the popularity of certain posts or referral sources or search term origination. So like dutiful marketers, we use our blogs to deliver the goods, writing posts that respond to the Google searches that bring readers to our site or reprising the topics that are a hit as defined by the numbers.

There’s nothing wrong with that approach, if you merely want to use your blog to market to clients or build SEO – to flawg (fake blog) as some have called it. But if you want to take your blog to another level, to establish the kind of intimacy that some wrongly contend has been supplanted by immediacy or to educate the public, as we lawyers are encouraged to do, or to inspire, you need to imagine your audience.

What I mean by imagine your audience is to visualize the individual readers, from those who stumble across your site online to those who dutifully read your updates daily. Where are they reading your blog – in a Starbucks? Their office? At a basement computer after the kids are in bed? Are they dressed in stiff work clothes or wearing pajamas? Are they using an news reader to catch up on posts – or do they actually visit the site to get the information? Do they print out your posts in a public library because they don’t have a printer at home, or scroll through them casually on their smartphone while riding the subway to a suburban mansion? By imagining these details, you can refine the form of your post to match your audience’s circumstances – for example, enlarging the font or brightening the page if you suspect folks are reading in dimly lit areas, or including an easy print or PDF option if your audience prefers hard copy.

Here at MyShingle, I’ve been imagining my audience every day for over nine years. I imagine the stressed out biglaw associate exhausted from another grueling day of document review who surreptitiously reads my site after her colleagues have left and plots her own escape. I imagine the law student clad in sweats, cramming for an exam in the darkened bowels of the law library who’s procrastinating from studying by scanning my site and dreaming of hanging a shingle and becoming the best criminal defense lawyer in the state. I imagine the mom who left a law firm a decade ago to raise kids and who wants to re-enter the profession, the young dad who’s sick of never seeing his kids while they’re awake during the week, the middle aged government lawyer sleepwalking his way through claims files, wondering whether he’s wasted his career, the lonely solo who’s struggling to make ends meets and the cutting edge solo hungry for every piece of cutting edge marketing and technology information that’s out there. Sometimes, I even imagine the close minded, elitist lawyers who find my site after it’s been linked in a more conventional trade press, and sniping about how solo and small firm lawyers are just a bunch of bottom feeders who couldn’t find a real jobs. I imagine all of these readers and more, and I write not so much for them (certainly, not for that last category!), as to them.

More than any other incentive, imagining my audience inspires me to keep churning out copy, week after week, year after year. Because the post that I write about how not to handle a mistake might motivate a solo who “borrowed” a few hundred dollars from a trust account to pay rent to turn himself into the bar and make amends rather than continuing on and losing his license. The post that I write about starting a firm before it’s too late may convince a talented lawyer intent on running from the law to start her own firm instead, and who goes on to defend, and spare a wrongly accused client from a life sentence.

In your own case, your post might make an abused wife realize that she can leave her abusive husband without losing custody of her kids, or that the destitute family tormented by debt collectors can seek relief. Your post criticizing a judge’s ruling on an important legal issue might find a sympathetic ear on the appellate court and change the law for the better. All it takes is one post to change someone’s mind or someone’s destiny and in doing so, you can change the world. Imagine that.

MyPocketAttorney: Rock It or Block It?

Carolyn Elefant — Mon, 23 Jan 2012 13:47:11 +0000

Ever intrepid tech-adventurer, Bob Ambrogi has uncovered yet another interesting find: My Pocket Attorney, a site that provides a template that lawyers can use to create a branded mobile app for their law firm. Apps developed through the MyPocketAttorney suite of tools include features such as one-touch dialing so that users can call your office, get GPS directions and schedule appointments, receive monthly newsletters.

Although the site just launched on the same day as Bob’s post, Bob expressed some preliminary concerns. In particular, the app includes a feature, albeit optional, which would allow for payment of referral fees when users share the app with others. Bob suggested that the referral feature might violate many bars’ prohibitions on fee-splitting with non-lawyers. As for me, I’m not sure that simply paying someone to pass on a law firm app to a friend, in and of itself, would violate ethics rules. Rather, it would depend on whether sending the app may be construed as a “recommendation,” which lawyers can’t pay for. Still, the referral program strikes me as a bad idea, nonetheless, since as a consumer, I certainly wouldn’t want to be bombarded with dozens of lawyer apps passed on by others who want to earn a buck.

Other than the referral feature, I’ve long been jazzed about the idea of lawyer-created apps. As more consumers spend more time using mobile devices and grow accustomed to consuming content that way, apps can provide a way for lawyers to get in front on prospective clients. On the other hand, lawyers need to recall that just as they are competing for consumers’ attention, so too are hundreds of other businesses – and as a result, a mediocre or useless app is likely to go ignored in the kaleidoscope of other apps clogging most smartphones.

That’s the other reason why MyPocketAttorney hasn’t yet captured my fancy. While existing clients may appreciate an app with basic contact information and directions, truth is, much of that is already available on websites. Moreover, these types of very simple apps can now be had fairly inexpensively; the MyPocketAttorney price of $1199 plus a monthly fee after a year, isn’t crazy-expensive, but I think you could also find an elance or odesk developer to come up with a similar product, for a similar price.

But really, if you’re going to go to the trouble of developing an app, it should have unique functionality. These Divorce Apps, a suite created by Dallas lawyer, Michelle May O’Neill has multi-functionality and really help to guide consumers through various issues they’ll encounter in a family law matter. This kind of app is much more than a vanity app, but useful, robust tool that lawyers, and more importantly, their perspective clients will want to rock, not block.

Client Portals – Love ‘em or Leave ‘em

Carolyn Elefant — Fri, 16 Dec 2011 14:33:55 +0000

There’s an article by Donna Seyle in Law Practice Today that provides a comprehensive round-up of various platforms for client portals and practice management. As the long list of products suggests, they’re all the rage – though as Marc Lauritsen notes in the concluding paragraph, large firms have long offered extranets to clients. What’s new now, however, is that these products are available to solo and small firm practitioners.

But do our clients want them? When I first learned about portals – where clients can download documents, access their own files and check the status of their bills and their case, they seemed like a win-win — a way to encourage clients to play a more active role in their case while saving lawyers time and money. So I jumped on board, testing out nearly every platform under the sun – Clio, Zoho, Basecamp, Huddle, Box and Dropbox. (Phew!)

Yet my own experience with platforms has been less than stellar. Most of my clients – who range from individual landowners to large trade associations and corporate entities – don’t want to log into a work space to download a pile of documents. They’d rather get them by email – and so, I find myself dispatching my virtual assistant to serve their requests. In short, my efforts to corral clients into their designated portals has been much like herding cats.

So why do portals work for some lawyers but fail for me? It’s a frustration because I like to consider myself as being on the cutting edge. I suppose that lawyers who handle unbundled work virtually have high success with portals because in many situations, they provide the only way for the client to interact with the lawyer. Plus, the clients are receiving lower cost service, so they’re willing to shoulder more of the work – like filling out cases or learning the case status instead of calling someone – themselves. Most of us willingly make these trade offs ourselves when we use free services like gmail or Facebook where there’s no human to talk to if there’s a problem.

On the other side of the coin, large firms and mega-clients also enjoy the portal. However, I’d venture to guess that in many of those cases, the lawyers and the company top dogs aren’t the ones logging in. Rather, it’s likely administrative assistants and paralegals uploading and downloading the documents. In a recent case that I handled, the firm set up a portal to house e-discovery responses – though they also sent them out dutifully on CD. My guess is that I was one of the few lawyers in the case who took advantage of the portal (which while appreciated, was still clunkier to use than the CD data).

In my own case, I continue to experiment with portals and make them available – they’re cheap enough, plus I have my image as a 21st century lawyer to consider! But at the end of the day, my clients take precedence over my longing to be cool and so if they want materials sent by email or electronically-compiled and bate-stamped or annotated to highlight important provisions, that’s what I do to make their lives easier.

But I’m interested about your experience. What’s the real scoop on client portals? Do your clients love ‘em or would they just as well leave ‘em? And have you started using portals and project management platforms at all – and what’s your experience been? Let me know what you think in the comment section below.

UPDATE: Can You Spell I Went Overboard? Try I-L-T-S-O

Carolyn Elefant — Fri, 15 Apr 2011 15:42:50 +0000

Update [May 3, 2011 - I've made a few more cuts to the post]
Update [April 17, 2011]: Last Friday, I posted the entry below, which was critical of the newly formed International Legal Technical Standards Organization and its proposed tech standards. There, I argued that the proposed standards as overkill, and the entire effort as a way to make money and adopt standards to favor certain technologies. Though I still think that the proposed standards are too stringent and I disagree with the ethics analysis, I was wrong about the ILTSO’s purpose because I lacked the proper context for understanding its importance.

Having spoken with ILTSO’s director and communicated with other board members, I now realize that ILTSO is undertaking this enormous effort of developing standards or best practices in order to get out in front of the states – which might develop 50 different standards for technology use (something which would be detrimental for both lawyers and the nascent legal cloud industry). As I understand the effort, ILTSO seeks to develop uniform standards that states could readily adopt. In addition, the ILTSO standards serve a more immediate purpose right now: whether you agree with them or not, they lay out a guide to the types of security issues that solo and small firm lawyers should be thinking about.

Thus, I’ve come to realize that the ILTSO initiative is very important – but it is also one that requires input from solo and small firm lawyers, so that the standards are supported by a general consensus. Therefore, I urge solo and small firm lawyers to take the time to review ILTSO’s2011 Standards and offer feedback on how they would work in your practice and for your clients. Most of all, please make clear to your respective state bars that you support the overall concept of uniformity and urge them to participate in this initiative as well.

Because it is my policy not to delete posts, I will leave my original post here after the jump. My substantive comments on some of the specifics are the same, but my once negative opinion of ILTSO has changed.

Earlier this week at TechShow, a new group, the International Legal Technical Standards Organization (ILTSO) announced the publication of the 2011 Standards for public review and comment. Initially, I was excited at the prospect of guidelines that would enable non-techie, resource-constrained solo and small firm lawyers to make smart, safe technology choices. [DELETED]

Still, there is much wrong that I disagree with. The potential the costs of complying with this sledgehammer-of-a-security document are enormous and will inevitably be passed on by solos to their clients, thereby wiping out any benefits that these technologies of tomorrow may bring. The paper lumps large and small firms together, irrespective of practice areas or level of data sensitivity, instead, requiring Fort Knox level security even where the consequences of disclosure are insignificant. Indeed, this proposal is onerous enough to scare paper-loving solos into the arms of Dunder-Mifflin instead of incorporating technology into their practices.

[DELETED]
PART I: SUBSTANTIVE COMMENTS
General Comment:
The proposed report establishes four levels of compliance: bronze, silver and gold. The bronze standard is appropriate for all levels including solos, and silver is appropriate for firms of more than one attorney or where “circumstances or resources dictate.” [Report at 8] My comments focus only on the bronze and silver requirements.

Two problems with this approach. First, it suggests that solo and small firms are second class citizens. If ILTSO succeeds in implementing its certification requirement, a solo firm that fully complies with what’s expected for its size will achieve bronze and therefore, appear less security-smart than the large firms who qualify for gold.
Second – and far more seriously, lumping all solo and small firms together for security purposes makes absolutely no sense. There are solos who run volume social-security or consumer debt practices who collect substantial amounts of personally-identifiable information from clients. Solos who retain personally identifiable information (including SS numbers, credit card numbers, etc…) pose a far greater threat than, for example, a three-person firm that handles exclusively appellate and regulatory matters where the bulk of “client data” resides in the public record. Though solos ought not be burdened with excessive, onerous requirements, they shouldn’t get a pass either. If solos are handling information where there’s a substantial risk that disclosure will give rise to identity theft, then they’ve got to comply with whatever standards apply under federal and state law for that given situation. To treat solos differently for security purposes based on size rather than substance of their practice areas puts clients at risk. (For more about the preferred approach of risk assessment, see my letter to the NC Bar here.

Specific Mark-Up
For the record, I don’t disagree with all of the ILTSO standards. Some do make sense, as my discussion below points out:
LOCAL NETWORKS
Data Room Access, Edge planning [ILTSO 9-10] – I don’t know enough about this to comment one way or another.

Hardware Firewalls [ILTSO 10-11] – agree with need for password protected firewalls

OnSite Data Storage [ILTSO 12-13] – encrypt client data once a day with a log. I’m mixed here. Once a day really isn’t necessary in my practice, but at the same time, if you use TimeMachine or other auto-back up, the once a day requirement isn’t a big deal either. Not sure why a log should be maintained – just looking at my OS and Time Machine icon tells me when I last backed up.
As for encryption, again, it’s the overkill problem. At least 70 percent of my data includes publicly-filed materials where encryption isn’t needed. And even for my client communications, really – even in a worst case scenario where someone were to steal my machine and read all the client documents, my clients probably wouldn’t be prejudiced unless the docs got back to my opposing counsel. The only reason I see for encryption is to protect data that if released can give rise to identity theft.

Offsite Data Back-Up – Daily requirement and encryption – see comments above. [ILTSO 12]

File Servers [ILTSO 13-14] – Can’t comment, don’t know enough.

Connection Redundancy [ILTSO 15-16] The standards say that “it is imperative to retain a second Internet connection for redundancy.” This is the most idiotic idea I’ve ever heard. First, the cost of two ISP services can be significant, particularly for solo and small firms. Second, I don’t know how the ILTSO authors’ ISPs work, but in my house, when the power goes down, everything goes down; presumably the ISPs would all go down as well. Third, there are parts of the country that still don’t have internet access from one company, let alone two. How is someone in a remote part of the country going to find two ISPs? If a solo’s ISP goes down, there are ways to deal with it. Most solos have mifi or smartphones with 3G access. There’s also Kinkos and public libraries and Starbucks which granted, while not ideal will do in a pinch.

Section 11 (Connection Redundancy) also says that it is imperative to understand the TOS for each ISP to ensure that data monitoring is not permitted, except in accordance with law. Why just for ISPs? Why not for the phone service? What about the postal service – are they holding my envelopes up to the light to peak in? Again, this is just silly overkill that will give technophobes and luddites one more excuse to avoid the Internet.

AntiVirus Scanning [15-16] Absolutely should be standard practice.

Wired Connections [16-17] The ILTSO Standards state that “despite the convenience of WIFI networks, wired ethernet based networks provide certain advantages and should be used wherever possible, since connections are manually hardwired]
This is another completely ludicrous and onerous requirement that fails to take account of how many solos – and lawyers generally work. First, many lawyers, women in particular, often work from home. Even with a home-office, however, they may rely on a wireless system in the house rather than a static connection just for more flexibility. Second, many lawyers who do not have full time offices work from public libraries or virtual office space where they can tap into a wireless service. What’s the problem with that? Essentially, this wired-connection nonsense effectively makes a full-time office a requirement – and thus eliminates the flexibility and mobility that technology provides to lawyers.

CLOUD SERVICES [17-21]
There’s been much written about the cloud already and what appears in this section seems consistent with evolving best practices. Here, I take issue only with the requirement for 24/7 encryption for everything (again, much of what I maintain in the cloud is already public or not personally identifiable)
[delete]

ACCESS DEVICES
Single User Access [22-23] ILTSO says that access to systems should have one user and passwords should not be shared. I freely share my passwords with a trusted virtual assistant – I couldn’t function if I didn’t. Again, no recognition here of the realities of many law practices.

Device Tracking [22-23] – recommends geo-tracking for devices, which isn’t a bad idea – makes them easier to recover if stolen. I can also live with encryption of client data on devices like flashdrives, just because they’re so easy to lose.

WiFi Connectivity [25-27] Private wifi is generally considered secure, public hotspots are not. This is also a reasonable requirement.

ETHICS CONSIDERATIONS
Section 25.2 [29] takes the position that cloud providers are vendors that require oversight. Can we please, please move away from this erroneous conception? If we classify cloud providers even as passive vendors, why not the bank (which holds my IOLTA trust accounts), my cell phone service and the copy store? Let’s just not go down this path. Lawyers are not stupid. We know that when we put money in a bank account, a passive vendor is involved and when we hire someone to manage it, there’s an active vendor. It goes without saying that we have oversight obligations over humans, not over services. Creating categories of active and passive vendors is going to have longer term implications and potentially trigger oversight duties where none should exist.

Confidentiality – lawyer should not reveal client data (30-31) Kind of obvious.

Shared obligation of Client (30-31) – Yes, clients always have a shared obligation to keep data confidential. But that doesn’t stop ‘em from emailing their lawyers’ emails to their friends and relations, even when cautioned not to. Not sure of the point of this provision?
Don’t communicate client data on social media (31) – OK fair enough. But why the gratuitous reminder to be familiar with ethics rules on social media advertising in a security document? (ILTSO at 31) Goes without saying that we need to follow all ethics rules. Or are ethics rules on social media somehow more important or special?

Client Engagement Letter (31-32) – These provisions require lawyers to disclose to clients how lawyers will communicate with and store client data. Sorry, not happening. Ever. There is no point to this provision. My clients have enough on their minds when they come to me. They’ve got enormous problems and I want to make their life easy with a seamless experience, not a retainer letter that goes on and on with disclaimers and explanations about how I run my practice behind the scenes. What is the point of this nonsense?

Personal identifiable information (PII) (32-33) – Yes, lawyers need to comply with federal and state law on PII. It’s a statutory issue, not an ethical issue.

Notification of Mistake (33) – seems to mimic existing obligations

Breach Notification (33-34) The requirement directs lawyers to notify clients of a security breach. I’m not so sure that this is necessary if clients aren’t harmed. Federal and state law impose requirements on breach notification and in my view, these are adequate. Sure, if a client’s ex-spouse comes into your office and steals the case file your client ought to know. But if it appears that a machine that doesn’t have any PII on it may have been compromised, is it necessary to tell every single client? I’m not sure on this one.

Records preservation and document retention (34-36) sensible enough.

Third party monitoring and outsourcing (36-37) – Offshoring to other countries gets a pass because presumably, it’s done with client consent.

DEFINITIONS
Section 42. Client Data (41)- Client data is “everything pertaining to representation of the client – schedules, emails, attorney work product and PII.” This may be true. But not all client data requires or even deserves the same level of protection. Practicing lawyers know what to treat as confidential and not – and need ample discretion to make these judgment calls. These standards apply an onerous one size fits all requirement and sap lawyers of our ability to make decisions about the type of protection required for client data. This is not the right direction to take.

42- Oh – encryption should be at least 128-bit. (ILTSO at 42) I’d always thought that 256-bit was standard practice – and indeed, this article suggests that 256 is better, but that if you’re on a budget, 128 bit is fine. Guess which company happens to use 128 bit?

43-45 – some good advice about setting passwords

PART II: PROCEDURAL DEFECTS
A. Self-Certification
As I said at the outset, standards for non-tech lawyers can be helpful, and to the extent that the ITLSO project is intended to do so, I’m all for it. Even more, I support a certification system where certain vendors are “approved” by an independent board (as IOLTA banks are by the bar) – and solos choosing those vendors would know that they were ethically compliant. (Solos seeking to do their own due diligence would have flexibility to choose their own provider so long as doing so was consistent with best practices).
But that’s not what’s happening here. As a purely informational document, the ILTSO standards are fine…[DELETE]

The ILTSO purports to establish international standards – but if that’s the case, why didn’t it follow the appropriate protocol set forth here. Setting standards is a serious business for industry (something that I know because I’ve tracked standards-setting in the marine renewables industry). There’s a set development process that includes engaging stakeholders, consumers, regulators and others. Here, the ILTSO didn’t engage work-a-day lawyers or even the bar associations (though that might have been an exercise in futility). It’s simply proclaimed that these are standards – without even demonstrating real expertise. Are the folks on this committee bonafide security experts – or merely self-proclaimed? These are answers that need to be provided.

Finally – these standards show no recognition of how solo and small firm lawyers work in practice. They assume that solos are all alike with the same security needs – when in reality, each solo’s needs are practice specific. The standards also impose onerous requirements with no justification whatsoever – calling for two ISP providers, prohibiting an assistant from accessing an attorney’s accounts and requiring the highest level security for all client data even if disclosure would not result in any harm, or if the data is largely public. The rules require us to open up our back office to our clients and burden them with how we keep documents when they just want us to handle their case.

Technology has been a savior to me in my practice. With it, I can serve clients more effectively and efficiently. I can take on cases that I could not otherwise afford to manage simply because of the cost reductions that I’ve enjoyed from technology. This misguided ILTSO effort will require solos and small firms to hire outside security experts (full-employment for those near-obsolete consultants!) or to adopt expensive and duplicative systems whose costs will inevitably be passed on to clients. Worst of all, I have yet to see a real assessment of the risks involved in using gmail – or even (horrors!) Google apps or similar systems (though lately, it dos appear that Dropbox’s security system has some serious issues.

We have an opportunity to make sensible rules that will enable lawyers to enjoy technology and keep our clients’ confidences secure. But to do so, we need to engage people from across different fields – technology, finance and healthcare – and continue to move forward. ILTSO offers a framework for doing so.

Book Review: Virtual Law Practice: A Useful Guide for Virtually Any Kind of Law Practice

Carolyn Elefant — Thu, 17 Mar 2011 14:02:19 +0000

Libraries may be nearly obsolete, but somehow we can’t rid ourselves of Melvil Dewey’s fetish for classifying books. We cabin books into narrow, topical silos – the business book, the practice management book, the substantive law treatise – and gravitate to those directly related to our interests, while ignoring the others.

If I didn’t blog about issues generally of interest to solos, and if Stephanie Kimbro were not a trusted colleague, I must confess that her recent book, Virtual Law Practice: How to Deliver Legal Services Online would have met a similar fate. Though I readily acknowledge that online legal services are important to our profession since they expand affordable access to law, working with clients exclusively online to assist with preparation of wills or incorporations isn’t my cup of tea – and I wouldn’t have paid attention to the book. But – and I cannot emphasize this enough: Virtual Law Practice is about much, much, MUCH more than simply using technology to deliver unbundled services. It is a book that advises lawyers about selecting and using technology responsibly and ethically in the 21st Century. Equally, importantly, Virtual Law Practice provides the tools to help in the form of robust, sample agreements and extensive ethics research.

The Virtual Law Practice consists of six parts (though they’re called chapters). Chapter 1 defines a what a virtual law practice is (an online portal devoted to delivery of legal services on line and describes the benefits that a virtual law practice can provide both to clients and lawyers. Chapter 2 is devoted largely to setting up a virtual law practice, whether to operate it as a stand-alone or adjunct to a traditional brick-and-mortar and discusses unbundling and document automation, which is used by many virtual firms that deliver unbundled services. This chapter also includes the personal experiences of two virtual law firms.

Chapter 4 talks about the costs associated with setting up a virtual law office, expectations of earnings and ROI analysis. Too many lawyers think that they can just throw up a website and declare themselves open for business on the Internet, only to discover that it didn’t work out. No surprise. Like any other venture, a virtual law firm must be thought out – and guess what? There are indeed costs involved to set it up and market it and depending upon how much you want to earn, those costs may be more than you expected.

Chapters 3 and 6 are the ones most useful for lawyers who don’t necessarily operate a “virtual law firm,” but who may work from home or use technology in their practice. These chapters talk about technology choices, data security, malpractice issues and the meaning of unauthorized practice at a time where technology is eroding geographic boundaries. For an ethics nerd like myself, these chapters were a joy because Stephanie did all of the heavy lifting on the ethics research, citing dozens of opinions on ethics of defining the scope of unbundling, virtual firms, electronic data storage, cloud computing, credit card payments and much more. What a resource for any 21st century lawyer.

Another valuable resource are the sample retainer agreement for a web-based virtual law practice providing legal services online, as well as in conjunction with a physical firm. Again, these sample agreements are thorough and robust (not like the junk you find online free) and contain clauses related to copyright and website terms of service equally applicable to any firm.

Of course, like any good book review, I need to comment on what might be improved. First – and this is a discussion I’ve had with Stephanie in the past – I am still not sure why virtual law practice does not encompass virtual firms like Virtual Law Partners ore Rimon Legal. Though these firms do not actively market themselves as providing legal services online, that’s what they do in practice. Moreover, many of the considerations related to UPL and technology choices (and even networks or collaboration, which Stephanie sees as promising for virtual firms) also apply to these firms – which are also moving not so much towards unbundling, but more commoditized versions of service. Including these business models seems to make sense.

Second, while Stephanie does a great job of interviewing a broad swath of lawyers and consultants with an interest in virtual practice (disclosure: I was interviewed), there’s one voice missing; the clients. Granted, it would have been very difficult and somewhat of an imposition to interview clients about their experience with online practices. But given that the book contends that virtual practices offer a client-centric way of doing business, I’d be interested in hearing from clients first hand.

Third, there’s the matter of ABA pricing. At $79 a pop, ABA books aren’t cheap (and I say this as an ABA author myself) Still, this book is worth the price.

These are my only three gripes, and they’re far outweighed by this book’s multiple strengths. But perhaps the greatest service that Stephanie has provided is that with her serious analysis, she gives credibility to the concept of virtual law firms. Stephanie sets a high standard for, and hopefully will send packing, the fly-by-night lawyers who think that operating a virtual firm involves nothing more than setting up a website on AOL with an email and sitting back in their pajamas as the profits roll in.

If you’re looking for hype about the virtual law practice, don’t waste you time with Stephanie’s book because you won’t find it here. But if you’re looking for solid help about how you can harness the power of technology ethically and responsibly to improve the quality of legal services that we provide and expand access to justice, then you’ve come to the right place.

For another review, see Mass LOMAP site.

Bespoke or Be-Gone: Lessons from the E-discovery trenches

Carolyn Elefant — Mon, 07 Mar 2011 16:05:22 +0000

Make way for John Henry, Round 2 . Just as the steam-engine rolled over John Henry, recent advancements in e-discovery technology similarly enable machines to accomplish the work formerly performed by a team of 500 lawyers, reports the New York Times. Moreover, not only do computers perform e-discovery less expensively, but also with a precision that surpasses human reviewers’ sixty percent accuracy rate.

Not everyone buys that e-discovery poses a death-knell for lawyers. Some predict that declining costs of e-discovery will stimulate more litigation and in so doing, generate a need for more lawyers. After all, right now, high costs of e-discovery often compel both sides to cave early, or may deter certain cases from even being filed. Still, even reduced discovery results in more cases being brought and/or heading to trial, overall, there will still be a net loss of lawyers since trial doesn’t require the same number of bodies as e-discovery.

Others, like Corinne Tampas, a Freelance Attorney contend that simplification begets complexity, which in turn, keeps steady the demand for lawyers. Tampas explains that even as computers appear to simplify the task of e-discovery, this in turn will necessitate the need for lawyers who understand the process and can manage e-discovery or help to strategize around the new challenges. While I don’t disagree with Corinne- indeed, even the NYT piece concedes a need for lawyers who can operate the technology – there’s no doubt in my mind that technology will contract the number of lawyers needed – just as online banking, computerized accounting programs and travel websites diminished the demand for human tellers, CPAs and travel agents. Of course, where Corinne is spot-on is that for those lawyers with the specialized skills at the top of the heap who can head those strategy teams, there’s still plenty of money on the table – a point also noted by Ralph Losey in the e-Discovery Team Blog. Thus, those lawyers who’ve been diligently tracking e-discovery caselaw and developments for the past few years, will probably find more doors opening as we transition to an automated system.

In fact, I wonder why the contract lawyers who spent months or years on the front lines of document review, weren’t spending more time educating themselves about e-discovery or blogging about how the review process works. More than any other group, they could have capitalized on their birds-eye view of e-discovery to serve as sherpas in this intersection of human know-how and tech. But they chose to gripe about poor working conditions or offshoring document review to India which is fine, as far as it goes, but also a sad example of how perpetual complaining can lead to missed opportunity – because as many of these lawyers must now concede, they’re readily replaced by technology.

As for the impact of these advancements on solos, the e-discovery developments are a reminder that we can never let our tech skills fall flat. At some point, those of us who litigate will need the ability to manage e-discovery and if we can’t afford these skills in-house, we’ll need to stay abreast of trends so that we have enough knowledge to outsource the tasks (so check out Sharon Nelson’s Ride the Lightening! We don’t see eye-to-eye on social media, but she is at the forefront of e-discovery).

We also can’t afford to grow too smug and assume that computers can’t replace what we solos do in our line of work. Not so. Though I don’t think that Legal Zoom has cut into solo market share (in many cases, LZ represents the pool of cases that many of us never deigned to accept because the clients wouldn’t pay), there are lots of other areas where many solos don’t act as much more as form-fillers or check-box checkers. If we can’t offer a value-add over what machines can do, then we face the same risk of obsolescence as contract lawyers – or John Henry.
Bottom line, my solo friends: In this 21st century world, either bespoke or be-gone.

Using Security as a Selling Point for Your Practice

Carolyn Elefant — Fri, 17 Dec 2010 14:15:58 +0000

A few weeks ago, Jordan Furlong (who’s North America’s answer to Richard Susskind) tipped me off to Clearspire, a new, “new kind of law firm.” Billing itself as a revolutionary law firm, Clearspire’s website reads like a page out of Susskind, hitting all of the buzz words like alternative billing, combining legal advice with business acumen and leveraging IT. Been there done that.
But what Clearspire is doing that is unique is using its high level security as a selling point for potential clients. Clearspire boasts that security is our enterprise DNA, emphasizing that:

In short, we have literally built our operation based on providing absolute security for our clients’ information.

As I write this post, the ABA Commission on Ethics 20/20 is evaluating client confidentiality issues related to lawyers’ use of technology. Moving at the speed of candlelight, the Commission isn’t likely to issue guidelines for another year, which is the equivalent of decades in the Internet Age. So before increased security becomes mandatory, law firms like Clearspire are wise to play it up as a selling point.

But solo and small firm lawyers can benefit from security as a selling point as much as larger players like Clearspire. After all, security – protection of client data and confidences – is what gives lawyers a leg up over companies like Legal Zoom, which rejects any liability for loss, misuse or destruction of data entrusted to it by users. Lawyers have a higher obligation; and if documents are lost while in our care, we’re going to take responsibility rather than leave clients in the lurch.

Security sure isn’t as sexy a selling point as flat fees or money back guarantees. But in the 21st century, selling security can attract clients and contribute to the financial security of your firm.

MyShingle Weighs in on ABA Ethics Initiative

Carolyn Elefant — Thu, 16 Dec 2010 14:47:29 +0000

Well, I was an hour or two late, but I got my comments in on the ABA Issues papers on web use and cloud computing. You can read them below.

ABA Comments

Avoid the Client-Portal Potty

Carolyn Elefant — Mon, 06 Dec 2010 02:14:36 +0000

What’s not to like about an online client portal? Setting up a site that enables clients to access their records or check the status of their case 24/7 offers the benefit of convenience and saves costs by eliminating the need for staff to respond to client requests for information.

Client portals aren’t pricey either. Technologies to support client portals have been around for a while and are rapidly coming down in cost. Initially, it was mostly large firms that had the ability to offer the benefit of portals to clients through costly, custom-designed extranets. In recent years, project management sites like Basecamp and Zoho and lawyer-specific applications like VLOTech emerged, which served the same purpose. But this past year, it seems that client portal solutions have proliferated, with vendors rolling out client portal applications left and right.

I’d always assumed, perhaps naively, that lawyers could implement portals in a responsible, ethically-compliant matter. But these privacy terms from this virtual, portal-based law firm gave me pause:

You need to know, however, that due to the open communication nature of the Internet we cannot guarantee that communication between you and us, and between us and you, will be free from unauthorized access or by third parties nor can we be responsible for information stolen from our servers by information harvesting software which may have the ability to scrape data.

So a client uploads personal information like social security numbers, bank account information, proprietary trade secrets (the firm handles IP) or other confidential information, a third party accesses the information, steals the client’s identity, ruins his life… and the firm isn’t responsible? Well, then who is? And even if the firm isn’t gathering personal information, what kind of sense of assurance do terms of service like this convey to potential clients? Unlike LegalZoom, we lawyers can’t contract away malpractice liability, yet that’s exactly what this privacy policy does: it abrogates responsibility for a law firm’s failure to safeguard its own servers against intrusion, which screams malpractice to me.

Client portals are the new “it” IT. But just because technology enables lawyers to set up client portals or virtual practices, doesn’t mean that every lawyer should. Virtual firms and client portals don’t fit every business model and even when they do, ethics rules still apply. So please, before you leap into setting up an online practice, think for just half a second about how you’re going to secure that data that clients entrust to you. Let’s not cheapen the goals of client empowerment and convenience that virtual firms may serve may serve by converting every lawyer online presence into one giant client-portal potty.