by Brian Focht | Sep 27, 2013
If you’re anything like me, whenever you buy or research a product online, you automatically disregard any review that gives the product/service the top available rating. I always look for the lowest reviews for two reasons. First, I’d like to know if there are people who are complaining about flaws in something that might bother me in a similar way. Second, and more importantly, I expect that at least a few of the highest ratings were written by, or on behalf of, the person selling the product. Given the opportunity, who wouldn’t endorse themselves, particularly when it improves the chances that someone will buy whatever you’re selling? Well, there is a name for posting false reviews to make a product or service look better: “astroturfing.” The Urban Dictionary defines astroturfing as “the act of trying to boost one’s image online with fake comments, paid-for reviews, made-up claims and testimonials.” Well, recently, the pervasive nature of astroturfing for law firms has drawn the attention of the authorities (most notably the New York Attorney General’s office), and the results aren’t pretty! Why is astroturfing really such a big deal, you ask? Well, first and foremost, astroturfing is essentially posting a false client testimonial about the quality of legal services provided by your firm. Which is quite clearly against the rules. Furthermore, astroturfing your ratings inflates your credentials online. Search engines frequently rely on ratings from sites like Yelp as part of the algorithm used to determine where your firm ranks for certain search terms. Inflated reviews results in a higher place on the page (Lawyerist.com really explains it best here), and... read more
by Brian Focht | Sep 22, 2013
(Part I in a continuing series on adoption of cloud-based services by law firms.) You hear about it everywhere. All of your tech-savvy friends talk about it with giddy excitement. Your office manager is constantly urging you to employ it in your practice. Your younger associates split time between telling you how great it would be and grumbling about the fact that you don’t have it. Yes, I’m talking about “The Cloud.” A few years ago, you may have initially thought I was talking about a comic book villain. Not anymore. We all know what “The Cloud” is, or at least we know it’s related to computers… And the Internet… Okay, we AT LEAST know that it is used in business, and that over 30% of attorneys reported using some type of cloud-based service in a recent ABA survey. Any responsible business owner should always be open to adopting new systems or practices that can increase profitability and long-term stability. So you’ve decided to investigate what The Cloud can do for your firm. However, here are 5 Things to Consider before you move your practice to The Cloud: 1) Has your state bar issued an ethics opinion on the use of cloud-based computing services? Quite a few attorneys have skipped right past the step of making sure that any practice management software complies with their state’s ethics rules. After all, a cloud-based document storage system for my practice is no different than using Microsoft Word, right? Wrong. Use of cloud-based systems for any part of your law practice puts client information under the control of a third-party. Even though... read more
by Brian Focht | Sep 7, 2013
Not long ago, I wrote a post entitled “Tweets of Wrath: Social Media and the Disgruntled Client.” In the event you choose not to go back and check it out (I wish you would, it’s one of my favorite stories), the basics of the post discuss the steps someone should take when responding to a disgruntled client’s social media posts. Remembering that the key rules STILL APPLY to social media, the biggest thing you want to make sure you do is keep confidential information… well… confidential. After that, you really need to remember NOT to injure the client by what you post. In the end, it remains my position that your best bet is to ignore the post the best you can. Well, today I saw this article, talking about an Illinois attorney who decided that she would rather respond… The facts of the case, as described by the article, and confirmed in this complaint filed before the Illinois Attorney Registration and Disciplinary Commission, are as follows: During the month of September 2012, the attorney, Betty Tsamis (“Respondent”) agreed to represent a Richard Rinehart regarding an employment dispute between Rinehart and his former employer, American Airlines. Rinehart, who had been a flight attendant, was terminated by American Airlines, reportedly due to an alleged assault by Rinehart on a coworker. Rinehart paid Respondent a retainer of $1,500. Between September 2012 and January 2013, Respondent met with Rinehart on at least two occasions, and reviewed Rinehart’s employment file, which she obtained from American Airlines. During January 2013, Respondent represented Rinehart in a telephone hearing with the Illinois Department of Employment Security,... read more
by Brian Focht | Sep 1, 2013
A new company in Dallas, Texas, WiredForPR.com, is offering third-party social media engagement and blogging services for lawyers and law firms. As detailed by one of my new heroes Kevin O’Keefe in his blog, Dallas attorney/journalist Stephanie Dube Dwilson* is offering a service to lawyers who want to have social media engagement, but don’t have the time or inclination to do it themselves. (Hereinafter “Ms. [D]Wilson” due to her site and her resume – available here – being inconsistent.) Yet with all that has been published about the potential pitfalls of failing to properly monitor your firm’s social media engagement, can you ethically rely on third-party social media? Wired For PR Ms. [D]Wilson’s website lists the services available to lawyers and law firms in what appears to be a deliberately restaurant-menu style. Beginning with a narrative discussion of what her site offers, Ms. [D]Wilson states: “Your involvement can range from, ‘Set it and forget it,’ to, ‘Run everything by me first no matter what.’ What I mean is this; as a journalist and a licensed lawyer, I can maintain your blog and social media sites with minimal supervision. Most of my clients, however, like to review every single communication before it is released – and I am more than happy to oblige.” All blog articles are ghostwritten, the site explains, and are written by a team of authors that are supervised by Ms. [D]Wilson. “Rest assured that nothing reaches the client’s desk until it has received my personal stamp of approval,” the site states. The Price of Third-Party Social Media The site offers three tiers of complete, hands-off packages for clients: For... read more
by Brian Focht | Aug 21, 2013
“Sticks and stones may break your bones, but words will never hurt you,” admonished every single mother, I imagine, for the entire history of human kind. It’s probably even in some of those ancient cave glyphs that have been found. It’s a fundamental tenet of New Testament Christianity, that one will demonstrate their strength in their ability to “turn the other cheek,” to refuse to dignify the petty assault of another. Today, it seems sometimes like it would take the internal, divine fortitude of a deity to handle some of the fierce attacks that one can find almost daily on Twitter or Facebook. Then one morning, you’re flipping past pictures of your friends’ kids on Facebook, when you see that one of your former clients, unhappy about the result of their case, has decided to post a comment on your firm’s page calling you… … a Hey, let’s face it, today’s social media allows anyone to say pretty much anything, and to do so before their “better angels,” so to speak, can prevent them. It’s done on accident all the time! Yesterday, even Dr. Phil (allegedly) had to delete a post from his twitter account after a poorly thought out question led some to wonder whether he was condoning rape if the woman was intoxicated (I’m pretty sure he doesn’t, but you get it). Another fact of life we all have to deal with is that there will ALWAYS be clients who will be upset with the services we, as attorneys, provide. So you’ve received some really nasty reviews from a former client, that you consider to be... read more
by Brian Focht | Aug 14, 2013
So I read the headline of an article this morning that read: “Google Filing Says Gmail Users Have No Expectation of Privacy,” and I was a little amazed that Google would be so brazen. Sure, as a user of Gmail, Google’s industry-leading email platform, I am aware that they scan the emails I send out (see my earlier post about being a little creeped out when talking about Sherlock Holmes in an email led to Sherlock Holmes ads appearing on my Gmail page) and that privacy advocates and Google’s competitors have been shouting from the rooftops about Google invading people’s privacy. Still, I found it hard to believe that the headline of that article was accurate, so I dug deeper. As it turns out, Google is actually asserting that it’s not just Gmail users, but anyone who uses email at all that has no expectation of privacy regarding their emails. I tend to be the type of attorney who reads what non-lawyers write about lawsuits in general, and specific legal argument and contentions in particular, with a grain of salt. As a litigator, I’m very familiar with the concept of things that seem illogical, such as pleading in the alternative, but are a part of regular legal practice, and serve important goals. A party, at the beginning of litigation, should be allowed to plead in the alternative, because it is highly likely that not all the necessary facts and information are readily available prior to discovery (or even after discovery, if the proposed amendments to the federal discovery rules are adopted, but I digress). So what is the case,... read more
by Brian Focht | Aug 12, 2013
You know those ads that appear on the right side of a Google search that seem eerily geared to what you just typed in? Those are intelligent advertisements generated by Google AdWords, and by now we’re all familiar with them to a certain degree. My first experience was actually when Gmail had an ad in my account for something related to Sherlock Holmes, which confused me greatly, until I realized that I had mentioned Sherlock in the body of an email I’d just sent. Then I was just creeped out. For most of us, the creeped-out feeling regarding intelligent advertising has faded, so now it’s time to find out how we can use them… Recently, one of my absolute favorite sources of information regarding legal tech, TechnoLawyer.com, sent me a newsletter detailing 10 Steps for success with Google AdWords. For those of you who don’t know, Google AdWords is an advertising service: you create an ad to appear on someone’s screen accompanying results from a Google search. The ad is linked to some part of your website, and you provide Google with a set of Keywords that will trigger your ad when someone uses those words in a search. Yeah, but does it work? Google charges you every time someone clicks on your ad, and last year Google’s ad-related revenue exceeded $50 billion. So yes, it works. [poll id=”5″]TechnoLawyer provided several excellent pieces of advice, including: Carefully select and optimize your keywords Understand the auction process behind how Google decides what ads go where Don’t trust Google to understand your market … and several self-evident suggestions, including: Understand your... read more
by Brian Focht | Aug 2, 2013
As a part of writing this blog, I do a lot of research on legal technology and how the use of technology impacts an attorney’s ethical obligations. Yesterday, I came across the article “ABA Requires Lawyers to Understand Technology” on Law.com, originally published on July 23, 2013 in the New York Law Journal. As I began reading the article, which talks about the amendments to the ABA’s Model Rules of Professional Conduct adopted last August, and I found myself wanting to claw at my eyes and rip out my hair. In order to preserve my vision and coif, I decided instead to come up with my Top 3 reasons why non-lawyers should NOT write about legal ethics: 1. They get it wrong. 2. They get it wrong! 3. Dear LORD they get it WRONG!!! (Ok, a brief caveat: I’m sure there are plenty of legal ethicists out there, who are not licensed attorneys, that are able to talk about legal ethics without getting everything wrong, so to all who fit that description, I apologize.) The bulk of my anger on this issue concerns an ABA model rule that I wrote about in an earlier post. The rule, as amended by the underlined portion, reads as follows: “Maintaining Competence: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” What drives me so crazy? Well, here is just a sampling of... read more
by Brian Focht | Jul 29, 2013
In a post last week, I wrote about an amendment made to the ABA’s Model Rules of Professional Conduct to modify the continuing educational requirements of attorneys to include learning about “the benefits and risks associated with relevant technology.” As part of my analysis of how the language would likely have little actual impact on continuing educational requirements, I pointed out that only one state, Delaware, had even bothered to adopt the new language in the year since the ABA included it. Well, the state of Massachusetts appears ready to make me look a little foolish. Earlier this month, the Supreme Judicial Court’s Standing Advisory Committee on the Rules of Professional Conduct proposed several amendments to the Massachusetts rules, including verbatim recitation of the ABA’s “Maintaining Competence” language. (A comprehensive list of the proposed revisions can be found here) Should the new language be adopted, Massachusetts would be the second state to formally declare that an attorney must have some knowledge of “relevant technology” in order to maintain professional competence. However, as I mentioned before, the term “relevant technology” actually means, and the extent to which an attorney must actually be familiar with it, remain so unclear that the rule itself is toothless, and may just be... read more
by Brian Focht | Jul 29, 2013
In addition to requiring attorneys to keep up-to-date on “relevant technology,” several other amendments were made recently to the ABA’s Model Rules regarding the ethical use of technology in the practice of law. For a chart summarizing the most recent amendments to the ABA Model Rules, and looking at how the North Carolina State Bar has addressed similar issues without amending the NC Rules of Professional Conduct…, Below is a summary of the most significant recent changes regarding the ethical use of technology (in my opinion) by the ABA. Unlike the competence amendment (discussed in greater detail here), these were primarily just codifications of what is already the law in most states (through enforcement and ethics opinions). As you can see, in North Carolina, each major modification made by the ABA, with the exception of the specific mandate made regarding competency, was already part of an attorney’s ethical obligation, as demonstrated in the chart below (to find other states’ rules and how they compare to the ABA amendments, try here): ABA Model Rule Update NC Ethics Opinion Rule 1.6 – Attorneys must protect confidential information from unauthorized 3rd party access; must make “reasonable efforts” to keep confidential information secure RPC 215 (1995) – protecting confidential information in wireless transmissions2008 FEO 5 – regarding web-based management of client information Rule 1.18 – Attorney-client relationship likely established where person submits representation-related information in response to specific attorney inquiry or where no disclaimer providedAttorney-client relationship likely not established where submission is response to general attorney advertisement or attorney only provides legal info of general interest 2000 FEO 3 – regarding whether attorney... read more
