by Brian Focht | May 15, 2014
Part 1: The Importance of Social Media to the Modern Law Practice Part 2: Marketing Your Practice on Social Media Part 3: Personal Use of Social Media Part 4: Social Media in Discovery Part 5: Social Media as a Research Tool Part 6: Advise Your Clients Wisely! (June 12, 2014) Lawyers aren’t the best at adapting to trends in technology, so it’s really no surprise that we haven’t taken to Social Media very well. Most practicing attorneys are likely quite happy to live and work in absolute ignorance of what’s being said on Twitter and the best new video on Vine. However, as time goes by, the fact of the matter is, social media is here to stay. However, just knowing about social media probably isn’t going to be sufficient to remain relevant nowadays. Before you dive in headfirst, make sure you’re equipped to survive (or at least enough so you won’t routinely commit egregious ethical violations)! This presentation is a guide for attorneys through the complex world that is the Ethics of Social Media. In Part 1, I explain the what and the why of social media involvement for lawyers. Check it out: The Ethics of Social Media Part 1: Social Is Necessary from Brian Focht Social media is becoming more and more necessary for lawyers, and not just so that you can follow your favorite celebrities while at work. Social media can impact an number of aspects of your law practice, not least of which is your clients and their cases. In Lester v. Allied Concrete Co., Nos. CL08-150, 09-223, the plaintiff, who filed a wrongful death lawsuit... read more
by Brian Focht | Feb 5, 2014
“Throughout human history, we have been dependent on machines to survive. Fate, it seems, is not without a sense of irony.” – Morpheus, The Matrix. I always looked on that quote as an interesting retrospective on a world where machines became dependent on man, albeit enslaved man, to survive. However, in looking at the way we adopt technology to increase efficiency and streamline workflows, another way to look at that quote dawned on me. We routinely replace tasks performed by hand with those performed by machine. The result is usually a cheaper, more uniform product, but lacking in the quality and personal service that comes with hand-creation. And it leads me to wonder, is that happening in the legal profession with the adoption of eDiscovery software? With Legal Tech 2014 in full swing in NYC (and, apparently, focusing on the best way to buy cocaine online), I’ve been intrigued by the prevalence of new eDiscovery software and tools available. These new and/or improved tools boast more efficient culling and storing of electronic documents for discovery, promising to save time and money for the firms who use them. Clearly, improved automation of these tasks will be cheaper and more uniform, but are we sacrificing quality service to our clients? Are we losing the ability to sift through our client’s documents to determine what is relevant and what is not? Are we losing the ability to even tell the difference? There is no question how valuable eDiscovery software can be. Litigants face many hurdles to making sure that all of their electronic data has been reviewed for discoverable material, which is... read more
by Brian Focht | Jan 28, 2014
The rise of Social Media has created numerous questions and issues when it comes to our ethical responsibilities. Can we advise clients to modify their Facebook page to make sure there are no offensive posts should a juror decide to look them up during trial? How about suggesting selective edits of certain portions of an Instagram page, or suggesting that a client add certain items to a Pinterest page to look more socially acceptable? All of these situations implicate an important ethical responsibility lawyers have regarding potential evidence: the duty to preserve. While it is ethically permissible to advise a client on actions they may take in the future, courts have come down hard on litigants and attorneys who have failed to preserve evidence contained in Social Media accounts. Here are several important rulings regarding the duty to preserve social media evidence from 2013: In Gatto v. United Air Lines, Inc., No. 10-CV-1090-ES-SCM, 2013 WL 1285285 (D. N.J. March 25, 2013), the court found that the plaintiff’s actions to deactivate his Facebook account during litigation amounted to spoliation of evidence. In Gatto, plaintiff’s Facebook account had been the subject of numerous discovery requests and at least one discovery conference. Id at *1-2. Plaintiff even adjusted the password to give defendants access, although discussion about the extent of access defendants would have was ongoing. Id. However, after being notified of access to his Facebook account from an unknown IP address, plaintiff deactivated his account. Id. Facebook permanently deleted the account information, and the court held that it was likely that, contrary to plaintiff’s assertions, he had taken steps beyond simple... read more
by Brian Focht | Jan 21, 2014
Illinois Attorney Betty Tsamis, the subject of my article Tweets of Wrath: This Attorney Didn’t Listen, has received a reprimand for violating ethical rules regarding client confidences and maintenance of her client trust account. Ms. Tsamis is most recognized for her reaction to her client’s Avvo review, which I discuss at length in the above-cited article. The full text of the decision can be read here, but the decision is notable in that it appears to go to great lengths to avoid discussion of her violation of the rules regarding the Avvo review. In fact, the sanction itself appears to be primarily based on her violation regarding management of her trust account. None of the mitigating factors appear to directly address her conduct regarding the Avvo review, and none of the language that Ms. Tsamis consented to even mentions her conduct in responding to the review. The reprimand itself even omits the actual language of Ms. Tsamis’s response that allegedly violated attorney-client confidentiality. Speaking to the ABA Journal, one of Ms. Tsamis’s attorneys said: “While we believe that Ms. Tsamis’ conduct was within the [ethics rules], this matter raises an important issue for all lawyers—especially those who are active on attorney-review websites and have the opportunity to comment on client reviews posted to these types of websites. “Lawyers should be cautious that if they choose to respond, that their response does not exceed what is necessary to respond to the review and should be mindful that they do not reveal client confidences in violation of the rule. Ms. Tsamis recognizes the importance of Rule 1.6 and the need to... read more
by Brian Focht | Jan 13, 2014
Florida is renowned for having some of the most restrictive ethical rules on advertising. I recently discussed how the ethical opinions of the Florida Bar concerning use of social media was reminiscent of an old man yelling at children to get off his lawn. However, thanks to new amendments to the Florida ethics rules, the restrictions on advertising by attorneys, particularly online, have become much more onerous. A new federal lawsuit, brought by the partners of Searcy Denney Scarola Barnhart & Shipley, challenges both the terms and application of Florida’s advertising rules. The lawsuit, Searcy et al. v. The Florida Bar, 4:13-cv-664-RH-CAS, filed in federal district court, alleges that Florida’s ethics rules, as amended effective in May 2013, violate the 1st Amendment free speech protections and are unconstitutionally vague, even as applied. While the outcome of the lawsuit will not be known for some time, here are 5 Reasons Florida’s Ethical Rules on Advertising are Ridiculous: 1) The Filing Requirements Advertisements for legal services, subject to a few exceptions – including websites, must be filed with the Florida bar at least 20 days before the ad is used. And you have to pay $150 for the privilege of having EACH ad reviewed. And even preliminary approval isn’t a guarantee that your ad won’t be a violation of the rules. Although the filing requirement does not apply to websites, it does apply to any other type of internet advertising, and MAY apply to any entry on a Social Media site. Oh, and your filing MUST be sent by mail. That’s right, you can’t send it by fax OR email, as shown... read more
by Brian Focht | Dec 11, 2013
Part 2 of 2 in my series regarding non-lawyer ownership of law firms. Click here to read Part 1. 3) Non-lawyer ownership will not cause society to pay less for legal services. Seriously, can you imagine making this pitch to some investment bankers? “So we have this law firm, but we think it costs too much for the public to use our services. So we want to charge less, and make less money.” Well, that’s what the argument is making, but on a macro, industry-wide level. In order to argue that non-lawyer ownership is a solution to society paying too much for legal services, you rely on the premise that by allowing non-lawyers to own law firms, the total amount that society will spend on legal services will decrease. I’ve heard of the concept of making the pie bigger (the “rising tide lifts all boats” concept), I’ve heard gaining a bigger slice of the pie (i.e. the competitive advantage concept), but I’ve never heard anyone involved in business who successfully pitched the idea to REDUCE the size of the pie. It’s logically incompatible to argue that we should make the practice of law more responsive to market forces by allowing non-lawyer investors, while simultaneously arguing that by allowing such investment, we will decrease the overall amount of money our society spends on legal services. The opposite will happen. 4) Innovations don’t “trickle down.” The reason you innovate is to make your firm “bigger, stronger, faster.” You use those competitive advantages to beat the other firms. Walmart and Best Buy have both been pioneers in streamlining competitive processes in their... read more
by Brian Focht | Dec 10, 2013
“I would write a shorter sermon, but once I start I get too lazy to stop.” Today in the Prism Legal blog, I read an article titled “Rule against Outside Investment in Law Firms Stifles Innovation.” In the article, the author asserts that the “dangers” of allowing non-lawyer ownership in law firms are largely theoretical, but the “harm” in refusing non-lawyer ownership is “concrete and immediate,” including: Legal costs remain higher than they otherwise would be Lawyers cannot pursue professionally rewarding paths Investors miss an opportunity to earn a return Society continues to pay more for law that is possible or necessary Innovations these firms create cannot “trickle down” to conventionally owned law firm. The author then suggests that those who support upholding the prohibition on non-lawyer ownership should bear the burden to provide justification as to why the prohibition on non-lawyer ownership prohibition should stand. Basically, he argues: “We should change. If you can’t give me good reasons why we shouldn’t change, I win.” I accept his challenge, but with a caveat. I believe that the burden is on the party seeking change to demonstrate why it’s necessary. Neither his article, nor any of the other articles arguing from the similar position, provide logical arguments for change. As was reported in the Lawyerist: “I don’t see the advantage to law firms, unless something about law firms makes them incapable of changing their business models without non-lawyer investment and control. That’s a scary concept without a strong justification.” I also believe that to allow non-lawyer ownership would fundamentally and irrevocably change the way legal services are provided (which, for... read more
by Brian Focht | Dec 6, 2013
Despite the fact that the ABA’s new rules on technology are over a year old, there continues to be a great deal of discussion about what they mean. I’ve seen, and been asked, many questions about the extent to which the ABA’s rules now “require” attorneys to be familiar with new technology. During several conversations, it really struck me how differently the new rules can be interpreted. It also struck me how several commentators, most of them legal consultants, have used various news stories taken out of context to push this idea that the new rules are so sweeping in their scope that they fundamentally change how attorneys practice law. They don’t. However, since so many people seem to disagree, I decided to create this little guide – a “How-To” manual for lawyers to look at when they’re confronted with a question about what types of technology they should be using. So here are my 5 Keys to Complying with New Ethical Rules on Technology: 1) Ignore anyone who claims the ABA Model Rules require lawyers to be competent with technology. The inspiration for this piece comes from a series of tweets that appear to have been inspired by an article by Megan Zavieh on the Lawyerist, titled “Luddite Lawyers are Ethical Violations Waiting to Happen.” Megan’s article, which is incredibly well-written, discusses how lawyers are being held to higher standards regarding their use of technology. However, the article frequently confuses a lawyer’s duty to be candid with a tribunal with a lawyer’s duties to provide competent representation (e.g. a court’s disapproval of an attorney’s claim that a person... read more
by Brian Focht | Oct 25, 2013
Everybody loves a deal. From outlet malls to Overstock.com, Americans enjoy the prospect of getting something at a “discount.” Recently, the model used by companies like Groupon has become popular: get companies to offer discounts to customers, but make the customers purchase the right to the discount. The marketer plays middle-man, organizing the discounts, and collecting the payments. And just like every advertising medium known to man, everything went smoothly (joking) until a lawyer wanted in (not joking about that part). The result: mass confusion… … at least that’s what the ABA’s new opinion on the issue would have you believe. Several states, including New York, North Carolina, and Arizona, among others, have already issued ethics opinions regarding lawyers on Groupon-type services. Without the ABA’s help. (As I’ve said before, the existing rules still apply!) Those opinions, while slightly different, each provided a framework for attorneys in those states to use Groupon-type advertisements ethically. I suppose in an attempt to rectify differences between the various state opinions, the ABA decided to issue an opinion of its own. “Much better to have one rule, even if it is confusing, vague, and provides little actual guidance, than several clear-cut rules that vary slightly” is what I imagine the justification was. Here’s what they came up with: Two Types of Groupon Advertising The opinion’s first step towards ambiguity was identifying two different types of advertising to be addressed in one opinion (BAD IDEA): The first, described as a “Coupon Deal,” involves purchasing a coupon for a discounted rate on legal services (e.g. pay $25 now, get five hours for 50% off). The... read more
by Brian Focht | Oct 7, 2013
“… rotten kids.” Ok, so I’m paraphrasing, but I couldn’t actually get anyone to go on the record! Seriously, anyone who has paid any attention to the ethics rulings coming from the Florida Bar recently must either be scratching their heads, shaking their heads, or just pointing and laughing… unless you’re an attorney in Florida! There’s no question that legal ethics experts and advisors everywhere have had a really tough time dealing with the march of technology at use in law firms in the 21st century. Among the most vexing issues has been how to apply existing ethical standards to new types of media, particularly social media. The ABA, for its part, has recommended that states add new rules requiring attorneys to keep up with technology to meet competence requirements. Many states, addressing specific examples, have done impressive work making existing rules applicable to new media. And Florida’s reaction? “LALALALA I CAN’T HEAR YOU!” Am I being a little over-the-top? Yes. But I really wanted to find a way to use that picture. Before I go any further, you should know that I hold those charged with maintaining the ethics of our profession in high regard. My mentor, G. Gray Wilson, is about as ethical and honest an attorney as you’ll ever find (and a state bar counselor). I’d turn to self-mutilation before I let him down by committing an ethics violation. That said, let’s take a look at Florida’s approach to the ethics of social media: 1) Lawyers who are not board certified in a certain area may NOT use the words “certified,” “specialist,” or “expert” in online... read more
