My Two Cents: The ABA Takes Lawyers’ Use of AI Head-On!

/ The Tech-Savvy Lawyer.Page/

I can’t visit Chicago without stopping by one of my favorite apple stores!

Last week, I attended the ABA 2024 Annual Meeting in Chicago, focusing on the Artificial Intelligence (AI) sessions. This conference followed the release of the ABA’s Formal Opinion 512 on Generative Artificial Intelligence Tools. Over the past few years, the ABA has issued several opinions indirectly addressing AI:

Opinion 512 emphasizes that lawyers must balance the benefits of AI tools with their ethical obligations to ensure competent, confidential, and transparent client representation. I plan to delve deeper into Opinion 512 next week. The key takeaway is that as AI technology evolves, ongoing education and vigilance are crucial to maintaining high professional standards in the legal field. This is why I attended the ABA 2024 Conference!

Session Highlights

CLE in the City: AI Hot Topics Every Lawyer Needs to Know

Jayne R. Reardon, discussing the ethical and professional responsibility issues lawyers must be aware of when using AI for their work!

The first session I attended was "CLE in the City: AI Hot Topics Every Lawyer Needs to Know," hosted by Taft Law and moderated by Lucy L. Thompson, Principal at Livingston PLLC. The panel included:

  • Leighton Allen, Associate at Foley & Lardner, LLP.

  • Jayne R. Reardon, Ethics and Professional Responsibility Counsel

  • Magistrate Judge Gabriel A. Fuentes, U.S. Magistrate Judge, Northern District of Illinois

  • Josh Strickland, Corporate Vice President, Global Products, Motorola Solutions

  • Honorable E. Kenneth Wright, Jr., Presiding Judge, 1st Municipal District, Circuit Court of Cook County

  • Professor Daniel W. Linna, Jr., Director of Law and Technology Initiatives, Northwestern Pritzker School of Law, and McCormick School of Engineering

Jayne Reardon discussed the ethical considerations lawyers must address when using AI, covering issues from hallucinations to confidentiality. Judge Fuentes shared his journey from having a no-AI policy to realizing its impracticality, acknowledging that AI is already embedded in tools like spell check, grammar check, and legal research. Ultimately, the responsibility lies with the lawyer to verify their work before submission.

Access to Justice

Another significant topic was access to justice. Judge Wright emphasized the importance of helping economically disadvantaged individuals with their legal matters. When I asked the panel if they knew of any AI tools that were reliable, maintained client PII, and were free to the public, none could provide an example. The general consensus was that this is a significant hurdle in meeting access to justice needs.

AI in Legal Education

Legal experts debate AI ethics at the ABA 2024 Conference

Improving AI is being addressed through both education and development. Professor Linna mentioned that his school is teaching AI to law students, with law students and computer engineers collaborating on AI projects. This is promising, but it raises questions about how well other law schools are addressing this matter. Some schools are only beginning to teach basic automation functions in Microsoft Word, which has been around for decades. 🙄 This disparity highlights the challenge law schools face in keeping up with the rapidly changing technology landscape.

ABA Experts Session: Technology Issues

In this intimate gathering moderated by Anna Mercado Clark, Esq., CIPP/E, CIPP/US, CIPM, FIP, partner at Phillips Lytle LLP and co-leader of its Technology Industry Team, participants engaged in a candid discussion about the concerns surrounding technology in today's legal practice. A primary concern among attendees, including myself, was the impact of AI on the legal profession. Questions arose such as: Will AI replace the need for lawyers? How can lawyers stay updated on AI capabilities and limitations? Do lawyers need to incorporate AI into their practice? What are the courts' stances on AI usage, and to what extent is it permitted?

The discussion built on points from the earlier session but offered unique insights from participants like Justice Robert J. Torres Jr., Chief Justice of the Supreme Court of Guam, and Manuel A. Quilichini García, President of the Puerto Rico Bar Association. They highlighted how AI is affecting lawyers, judges, and court systems, stressing the importance of practical, real-life experiences in integrating AI into legal practice. These real-world insights are crucial for lawyers to navigate the future competently and ethically.

CLE/ETHICS: Ethics, Uses and Abuses of Generative AI (GAI) for Attorneys and Judges: An Interactive Session

This session on the ethics of generative AI, Moderated by Justice Torres, delved into the ethical implications and challenges posed by AI in the legal field. The panel included:

  • Hon. Samuel A. Thumma, Arizona Court of Appeals, Division One, who serves on the ABA's Judicial Division and Appellate Judges Conference Ethics & Professional Committees;

  • Hon. Kimberly Kim, Assistant Chief Administrative Judge of the California Public Utilities Commission, who serves on the Technology Committee of the AB's Judicial Division;

  • Hon. Jennifer A. Mabey, Utah District Court Judge;

  • Hon. Stephanie Domitrovich, PhD, Sr. Trial Court Judge of Pennsylvania state courts; and

  • Zach Warren from Thomson-Reuters

Lead by Justice Torres, A Panel discusses ethical challenges of AI for lawyers and judges.

This session delved into the ethical implications and challenges posed by AI in the legal field. The panel underscored the necessity for legal professionals to understand the capabilities and limitations of AI technologies to ensure they are used responsibly and ethically. Zach Warren started by providing the audience with a framework that defined key terms. The discussions then focused on maintaining client confidentiality, the accuracy of AI-generated information, and the potential biases embedded in AI systems. Several examples with multiple-choice answers highlighted real-life scenarios, evoking memories of the multi-state portion of the bar exam for some audience members. The program emphasized the importance of continuous education and ethical vigilance as lawyers integrate AI into their practices, ensuring that these technologies enhance rather than undermine the justice system.

Final Thoughts

The ABA 2024 Annual Conference underscored the critical role of AI in modern legal practice and the ethical considerations that come with it. AI is already a part of legal practice, from spell check and grammar check to legal research tools like LexisNexis, Westlaw, and Fastcase. Staying informed and adapting to these changes is essential for maintaining high professional standards and ensuring access to justice for all. If you and your firm are not keeping up with the acceleration of AI, you risk losing clients to more efficient firms, revenue, and scrutiny from your bar association regarding compliance with ethical standards.

Lawyers who do not keep up with the evolving AI landscape will be left behind by those who do!

🚨

Lawyers who do not keep up with the evolving AI landscape will be left behind by those who do! 🚨


MTC

Lessons Lawyers Can Learn from the Financial Impact of the Crowdstrike Software Error 💼💻

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Software/Computer issues can cause Financial Impact of Rework & Downtime

The recent Crowdstrike software error that led to a global Microsoft Windows meltdown serves as a stark reminder of the financial and professional risks associated with technological failures. For lawyers, understanding these risks is crucial, as similar issues can have profound implications on our practice. Here are the key lessons lawyers can learn from this incident:

1. Financial Impact of Rework and Downtime ⏰💸

The Crowdstrike incident caused widespread disruption, leading to significant downtime for many businesses. For lawyers, such downtime can translate into substantial financial losses. When systems are down, work may need to be redone, deadlines can be missed, and billable hours can be lost. This can be particularly costly in legal practices where time is money.

2. Costs of Dealing with Bar Complaints and Ethics Requirements ⚖️📝

Lawyers are bound by strict ethical standards and are required to proactively report any issues that might affect their practice. The financial costs of dealing with bar complaints can be substantial. According to the American Bar Association, common disciplinary complaints include neglect, lack of communication, and misrepresentation - all that can be significantly impacted if a lawyer's computer system goes down. Defending against these complaints can involve significant legal fees, which can range from thousands to even millions of dollars in complex cases.

3. Potential Loss of Clients 👥🚫

The financial impact of losing clients due to technological failures cannot be overstated. Clients expect their lawyers to handle their matters efficiently and securely. A failure to do so, as seen with the Crowdstrike incident, can erode trust and lead to client attrition. This loss of business can have long-term financial repercussions, as acquiring new clients is often more costly than retaining existing ones.

4. Court Sanctions and Resulting Errors 🏛️❌

Software/computer downtime can create Costs of Dealing with Bar Complaints & Ethics Requirements

Errors resulting from technological failures can lead to court sanctions. These sanctions can include fines, adverse judgments, and even disqualification from representing clients in certain cases. For example, if a lawyer misses a filing deadline due to a system outage, the court may impose penalties that can be financially burdensome or worse yet negatively impact the case itself. Moreover, such errors can damage a lawyer's reputation, further impacting their practice.

5. Importance of Robust Technological Solutions 🛡️🔒

The Crowdstrike incident underscores the importance of having robust technological solutions in place. Lawyers should invest in reliable software and hardware and ensure that they have contingency plans for potential failures. This includes regular backups, cybersecurity measures, and having IT support readily available. By doing so, they can mitigate the risks of downtime and data loss, which can have severe financial consequences.

6. Legal Liability and Insurance 📊🔐

Lawyers should also be aware of their legal liability in the event of software failures. As seen in the Crowdstrike case, software defects can lead to lawsuits if they cause financial harm to clients. Lawyers should consider carrying the following:

Cyber Liability Insurance 🛡️💻

Cyber liability insurance is crucial for law firms to mitigate the financial impact of cyber-attacks and data breaches. This type of coverage typically includes:

Software/computer failures can cause the Potential Loss of Clients

  • Direct costs associated with data breaches and cyber attacks;

  • Crisis management expenses;

  • Income loss due to system downtime;

  • Costs of forensic investigations;

  • Payments to affected clients whose data was compromised;

  • Regulatory fines for non-compliance.

Cyber liability insurance can be divided into first-party coverage (for direct losses to the firm) and third-party coverage (for liability claims against the firm).

Professional Liability Insurance (Errors & Omissions) ⚖️📝

Also known as malpractice insurance, this coverage protects law firms from claims of negligence, errors, or omissions that cause financial harm to clients. In the context of computer failures, it can cover:

  • Missed deadlines due to technology issues;

  • Errors in legal work caused by software glitches;

  • Failure to deliver promised legal services due to system outages.

Technology Errors & Omissions (Tech E&O) Insurance 🖥️🔒

This specialized coverage combines elements of professional liability and cyber insurance, tailored for technology-related risks. For law firms, it can provide protection against:

Don’t risk Court Sanctions for a software/computer error - have a backup plan!

  • Software glitches causing loss of client data;

  • Equipment failures preventing client service;

  • Cloud-based service failures affecting data backup;

  • Website design issues.

Tech E&O insurance typically costs about $500 to $1,000 per year per employee.

Key Considerations for Law Firms 🔍💼

  • Comprehensive Risk Assessment: Conduct a thorough audit of your firm's cyber security threats to determine appropriate coverage levels;

  • Policy Comparison: Carefully review terms and conditions of different policies, understanding what incidents are covered and any exclusions;

  • Customization: Look for policies that can be tailored to your firm's specific needs and risk profile;

  • Risk Management Resources: Some insurers, like Travelers, offer risk management resources to help identify and manage professional liability risks;

  • Claims Handling: Consider insurers with specialized claims handling for legal professionals to ensure efficient resolution of any issues;

  • Coverage Limits: Evaluate appropriate coverage limits based on your firm's size, client base, and potential financial exposure;

  • Regulatory Compliance: Ensure your coverage meets any state or industry-specific requirements for data protection and professional liability.

By investing in a comprehensive insurance strategy that includes cyber liability, professional liability, and tech E&O coverage, law firms can significantly reduce their financial exposure to computer failures and related risks. This proactive approach not only protects the firm's bottom line but also helps maintain client trust and professional reputation in an increasingly technology-dependent legal landscape.

7. Proactive Communication and Transparency 🗣️📢

Importance of Robust Technological Solutions

Clear and proactive communication with clients is essential. In the event of a technological failure, lawyers should promptly inform their clients about the issue and the steps being taken to resolve it. This transparency can help maintain client trust and prevent misunderstandings that could lead to complaints or legal action. Additionally, documenting all communications can provide a defense in case of any disputes.

🎓🔍 The Crowdstrike software error serves as a powerful example of the potential financial and professional risks associated with technological failures. For lawyers, the lessons are clear: invest in reliable technology, maintain robust contingency plans, carry appropriate insurance, and communicate proactively with clients. By taking these steps, lawyers can protect their practice from the financial impact of similar incidents and uphold their professional obligations. 🛡️💼

My Two Cents: The CrowdStrike MS Windows SNAFU and Its Impact on Lawyers 💻🚨

/ The Tech-Savvy Lawyer.Page/

a faulty software update from CrowdStrike created caos for many industries - lawyers may have been one of them!

Last week, the legal community was jolted by a significant disruption caused by a faulty software update from CrowdStrike, a leading cybersecurity firm 🛡️. This update, intended for Microsoft Windows systems, led to widespread outages, affecting numerous sectors, including airlines ✈️, hospitals 🏥, and financial institutions 🏦. The incident serves as a stark reminder for lawyers about the vulnerabilities inherent in relying solely on a single operating system or service provider.

The Fallout Across Sectors 🌪️

The CrowdStrike update, deployed on July 19, 2024, inadvertently caused Windows machines to crash, displaying the infamous "Blue Screen of Death" (BSOD) 💀. This glitch had a domino effect, particularly in sectors heavily reliant on Windows-based systems. Airlines were among the hardest hit, with thousands of flights canceled or delayed as check-in and scheduling systems went offline ❌. For instance, Delta Air Lines and its affiliates canceled over 1,100 flights, while other major airlines faced similar disruptions.

Hospitals and emergency services also experienced significant setbacks 🚑. In the United States, the Emergency Alert System reported 911 outages in several states, while hospitals in Germany and Israel had to cancel non-urgent surgeries and reroute ambulances. Financial institutions, including banks in Australia and New Zealand, faced system inaccessibility, affecting transactions and customer services 💳.

The Impact on Apple Users 🍎

Interestingly, Apple users remained largely unaffected by this debacle. The faulty update was specific to Windows systems running CrowdStrike's Falcon software, leaving macOS and Linux systems unscathed 😌. However, Apple computers may have been indirectly impacted due to services that run on Windows-based platforms, such as Software as a Service (SaaS) applications and Windows-based servers. This highlights that even if the hardware and operating systems are secure, dependencies on Windows-based services can still cause disruptions.

Lessons for Lawyers 📚⚖️

Lawyers can learn many lessons from the crowdstrike snafu!

The CrowdStrike incident is a powerful lesson for lawyers and law firms about the importance of tech diversification and robust contingency planning. Here are some key takeaways:

  • Cross-Platform Services 🔄: Relying on a single operating system or service provider can be risky. Lawyers should consider integrating both Windows and macOS systems within their practices. Similarly, using both iPhone 📱 and Android 🤖 devices can mitigate risks associated with platform-specific outages.

  • Redundant Internet and Cellular Providers 📡: Ensuring that your practice has access to multiple internet and cellular providers can prevent complete shutdowns during service outages.

  • Secure and Reliable Data Backups 💾: Regularly backing up data to secure, redundant locations is crucial. Cloud-based services ☁️, external hard drives, and even physical copies can ensure that critical information remains accessible during tech crises.

  • Cybersecurity Vigilance 🔐: Staying updated with the latest security patches and updates is essential. However, it's equally important to have a protocol for quickly addressing any issues that arise from these updates.

The CrowdStrike MS Windows SNAFU should serve as a wake-up call for the legal community 🚨. Diversifying tech infrastructure and maintaining robust, secure data backups are not just best practices—they are essential strategies for ensuring continuity and resilience in the face of unforeseen disruptions. By learning from this incident, lawyers can better safeguard their practices and continue to serve their clients effectively, even in the midst of technological crises 💪.

My Two Cents: Preparing for the Future: How Legal Professionals Can Adapt to Rapid Technological Advancements

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How will technological advancements impact the practice of law? 🧐

As a lawyer deeply invested in the intersection of law and technology, I understand the rapid evolution reshaping our profession. My recent experience at the MacStock 8 Conference outside of Chicago reinforced the importance of staying ahead of technological advancements. Here’s how I believe we, as legal professionals, can prepare for the changes in technology today, one year from now, five years from now, and in the future.

Today!

To enhance efficiency and client service, lawyers must embrace current technological tools. David Wilkins, director of the Center on the Legal Profession at Harvard Law School, emphasizes the importance of AI in legal practice: "Every other conversation I have is about ChatGPT and how it will impact the practice of law". To prepare, we should:

  • Familiarize ourselves with AI-powered legal research tools;

  • Adopt cloud-based document management systems[1];

  • Implement robust cybersecurity measures;

  • Learn to use e-discovery software for more efficient case preparation.

Participating in tech conferences at any level can help enhance your knowledge of the tech tools you use for work! 🤗

At MacStock 8, I presented on "Harnessing ChatGPT for Apple Enthusiasts: Revolutionizing Shortcuts, Automations, and AI-Powered Analysis." This topic underscores how general-purpose technology can be leveraged for legal applications. As I mentioned in my MacVoices interview, "I'm going to be talking about insights into using artificial intelligence for automation tools like Hazel, AppleScript, TextExpander, and Microsoft Word".

One Year from Now!

As technology continues to advance, we should focus on integrating more sophisticated tools into our practice. This includes:

  • Exploring AI-powered contract analysis software;

  • Implementing virtual law firm models to offer remote legal services;

  • Utilizing predictive analytics for litigation strategy;

  • Adopting legal chatbots for basic client interactions.

It’s not too hard to see that AI-powered tools can analyze vast amounts of legal data, providing lawyers with comprehensive insights, relevant case law, and accurate precedents. By harnessing these capabilities, lawyers who use AI can gain a significant competitive advantage.

Five Years from Now!

Looking further ahead, we should prepare for more transformative changes in legal technology. This may involve:

  • Incorporating blockchain technology for smart contracts and secure transactions;

  • Utilizing augmented reality (AR) for immersive courtroom presentations;

  • Leveraging advanced data analytics for strategic decision-making;

  • Adapting to new regulatory technology (RegTech) solutions for compliance management.

As noted by legal tech experts, "Blockchain technology is gaining traction in legal operations, primarily for its ability to enhance security, transparency, and efficiency".

The Future!

In the long term, we must be ready to embrace radical changes in the legal profession. This includes:

How will ai impact the practice of law with concepts like “smart contracts”?

  • Developing expertise in emerging areas of law related to AI;

  • Adapting to potential shifts in legal education and licensing;

  • Preparing for the possibility of AI-assisted judging and decision-making;

  • Exploring new business models that combine legal expertise with technological innovation.

David Wilkins suggests that the future of law will require a new approach to legal education: "How can we best prepare students for the new realities of legal careers in the middle decades of the 21st century?".

To thrive in this evolving landscape, we must commit to continuous learning and adaptation. This means not only staying current with legal developments but also actively engaging with technological advancements. We should:

  • Regularly attend both legal and general technology conferences;

  • Participate in online courses on emerging technologies;

  • Collaborate with tech professionals to understand new tools and their applications;

  • Advocate for technology training within our firms or organizations.

By proactively preparing for technological changes, we can position ourselves as leaders in the field, offering innovative solutions to clients and contributing to the advancement of the legal profession. As the legal industry continues to evolve, those who embrace technology will be best equipped to navigate the challenges and opportunities that lie ahead!

MTC!

[1] https://lexworkplace.com/best-legal-document-management-software/

Why Lawyers Should Teach Tech Skills – The Tech-Savvy Lawyer will Present at the 2024 MacStock 8 Conference!

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lawyers can get so many benefits from teaching other lawyers on how to use technology!

Lawyers should teach technology skills to fellow attorneys. Teaching not only reinforces the lawyer’s expertise but also improves the legal profession and helps others succeed. It creates a community of tech-savvy lawyers who can better serve clients. 

This is one of the reasons why I’ll be presenting at this year’s MacStock 8 conference. MacStock is a conference for Apple enthusiasts who are looking to hang out with like-minded people and “level” up their skills. I enjoy my Apple computer products, and I enjoy sharing with others the skills I have learned over the years. I hope my presentation supplements my commitment to sharing valuable tech skills with others both in and out of the legal field.

Lawyers, you do not necessarily need to teach a course or CLE to share knowledge.  It can be as simple as a passing suggestion or spending a few minutes helping a fellow lawyer, court staff, or, gasp, even your opposing counsel.

By teaching technology, lawyers foster innovation, efficiency, and collaboration in law practice. It's a win-win that benefits both teachers and learners.

MTC

You Can Still Get Tickets To MacStock 8!

🧑🏻‍💻

You Can Still Get Tickets To MacStock 8! 🧑🏻‍💻

For those interested in attending MacStock 8, it will be held outside of Chicago. Tickets are still available here. If you use the code TECHSAVVYLAWYER (expires 7/11/2024), you can get $30 off your Weekend Pass ticket price.

Don’t worry if you can’t travel ✈️ —there is a digital on-demand option, too! The Digital Pass delivers MacStock’s Saturday and Sunday sessions to you on-demand approximately 30 days after MacStock Weekend

What Lawyer's Should Do Before Their Chatbots or DIY Services Fail: Lessons from Meta's Small Claims Court Saga! 🤖⚖️

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Clients are coming up with creative ways to get a service providers attention when the chatBot or online DIY service does not meet their expectations…

In an era where technology is reshaping the legal landscape, a recent trend involving Meta (formerly Facebook) offers valuable insights for law firms venturing into chatbots and online DIY services. The phenomenon of users turning to small claims courts as the de facto means to resolve issues with Meta's platforms highlights the importance of effective digital customer service. Lawyers should see Meta's customer service failure that results in small litigation as a warning that when using chatbots or providing online DIY services they still need to keep a human hand in these communications to prevent future bar complaints!

The Case In Chief 📱🏛️

Meta, the parent company of Facebook and Instagram, has faced an unusual challenge. Users, frustrated with account lockouts and bans, have resorted to filing small claims lawsuits against the tech giant. This unconventional approach has surprisingly become an effective way for users to regain access to their accounts or receive compensation. So, what can the legal community learn from this?

The Lesson to Be Learned 🧑🏼‍🏫

Chatbots and DIY services are bringing low-cost and easier access to legal assistance for those who typically may not be able to afford such services from a more traditional (and perhaps one day antiquated) law firm model. However, clients want to know that they are being heard, and sometimes their "square peg" question does not fit into the "round hole" of an automated response. Similarly, the online service may not be able to provide a satisfactory answer, leaving the customer frustrated or infuriated over their wasted time and money.

It is crucial for lawyers using these digital platforms in their offices to have "real person" options as a safety net. It's much easier and cheaper for a disgruntled client or even a potential client to file a bar complaint versus going to small claims court.

Here are some takeaways and proactive steps lawyers should consider when using chatbots and online DIY services

Does your law firm have a plan to “pick up the pieces” should its chatbot fail? 😲

Key Takeaways for Law Firms 💡

  • The Importance of Human Touch 🤝

While automation can streamline processes, the Meta case underscores the value of human intervention. Law firms implementing chatbots should ensure there's an easy way for clients to escalate issues to a real person.

  • Clear Communication is Crucial 📢

Many Meta users turned to small claims courts due to a lack of clear communication channels. Law firms should prioritize transparent and accessible communication options in their digital services.

  • Anticipate and Address Common Issues 🔍

Meta's situation arose partly from recurring account access problems. When setting up online services, law firms should identify potential pain points and create dedicated resolution pathways.

  • Regular System Audits 🔄

Conduct frequent reviews of your digital services. This helps identify and rectify issues before they escalate to client frustration.

  • Empower Your Chatbot, But Know Its Limits 🤖💼

While chatbots can handle routine queries, they should be programmed to recognize complex issues that require human expertise. Ensure your system can seamlessly transfer such cases to appropriate staff.

Some Tips for Implementing These Lessons 🛠️

clients are coming up with creative ways to get an online providers attention when they think a chatbot or online diy service fails - Don’t give them reason to file a law suit or worse yet a bar complaint!

  • When developing your firm's chatbot or online DIY service:

  • Create a clear escalation process for issues the bot can't resolve

  • Provide multiple contact options for clients

  • Regularly update your FAQ and chatbot responses based on common client queries

  • Implement a feedback system to continuously improve your digital services

  • Train your staff to effectively handle cases escalated from digital platforms

Conclusion 🎯

The Meta small claims phenomenon serves as a cautionary tale for the legal tech world. It emphasizes the need for a balanced approach that leverages technology while maintaining the human element crucial to legal services.

By learning from Meta's experience, law firms can create more effective and client-friendly digital services. Likewise, in the legal world, technology should complement, not replace, the expertise and personal touch that clients expect from their legal representatives. 💻⚖️ This approach not only enhances client satisfaction but also prevents potential frustrations that could lead to unconventional problem-solving methods by clients like bar complaints. 😲

MTC

📱 My Two Cents: Understanding Digital Footprints: Lessons from a Lawsuit Against Apple! ⚖️

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In today’s digital age, It’s important that lawyers understand the impact of digital footprints in the courtroom.

In the digital age, the traces we leave behind on our devices can have profound implications, both personally and legally. This reality was starkly highlighted in a recent case where a man sued Apple after his wife discovered his deleted iPhone messages on their family iMac, leading to their divorce. This incident underscores the importance of understanding digital footprints and their potential consequences.

The Case in Brief                                                                      

The lawsuit revolves around a man who believed his deleted iPhone messages were permanently erased. However, due to iCloud synchronization, these messages were accessible on the family iMac. His wife discovered these messages, which contributed to the breakdown of their marriage. In response, he filed a lawsuit against Apple, alleging that the company's failure to ensure the complete deletion of his messages led to his divorce.

The Technical Background

Apple's ecosystem is designed for seamless synchronization across devices. iCloud, Apple's cloud service, enables this by storing data such as messages, photos, and documents in the cloud. When a user deletes a message on their iPhone, it may not be immediately or permanently removed from all synced devices. This synchronization feature, while convenient, can inadvertently expose private information if users are not fully aware of how it works.

Legal Implications

Apple is bening sue for privacy invasion because a user’s illicit activities where exposed to someone else on their shared account? 🤨

From a legal perspective, this case raises several important issues:

Expectation of Privacy: Users often assume that deleting a message or any data on one device ensures its permanent removal. This case challenges that assumption and highlights the need for better user education on how data synchronization works.

Data Management and Control: The case underscores the necessity for clear and comprehensive user controls over data management. Users should have straightforward options to permanently delete data across all devices and cloud services.

Liability and Responsibility: The lawsuit against Apple raises questions about the liability of tech companies in ensuring user privacy. Should companies be held responsible for educating users about potential data remnants across synced devices? This case might set a precedent in defining the extent of a company's responsibility in protecting user data.

(The Tech-Savvy Lawyer.Page is about teaching the public how technology can impact the practice of law.  It’s not about offering legal opinions. Meanwhile, questions arise about how can a man who apparently uses a shared account complain that other members of the account can see his communications (including years’ worth of texts with prostitutes], but I digress).

Lessons for Legal Professionals

Attorneys need to inform their clients about the legal implications of their digital footprint!

As legal professionals, it is crucial to understand the intricacies of digital footprints and the potential legal ramifications for clients. Here are some key takeaways:

Educate Clients on Digital Footprints:  Make sure clients are aware of how digital data is stored, synchronized, and deleted. This includes understanding cloud services and their impact on data privacy.

Advise on Best Practices: Encourage clients to regularly review their privacy settings on all devices and cloud services. Suggest periodic audits of their digital data to ensure no unintended remnants are accessible.

Stay Informed About Technology: The legal field must keep pace with technological advancements. Understanding how different platforms and services handle data can help in advising clients accurately and effectively.

Consider Digital Footprints in Legal Strategies: In cases involving digital evidence, such as divorce or corporate litigation, consider the potential existence of data remnants on synced devices. This can be crucial in building or defending a case.

Conclusion

Lawyers need to strategize about how “digital footprints” can be used in the court - for both good and bad!

The case against Apple serves as a reminder of the pervasive nature of digital footprints. In our interconnected world, understanding how data synchronization works and its implications for privacy is vital. For legal professionals, this knowledge is not just beneficial but necessary in navigating the complexities of modern legal challenges. By staying informed and proactive, we can better protect our clients and ourselves from the unintended consequences of our digital lives.

MTC

My Two Cents: With AI Creeping Into Our Computers, Tablets, and Smartphones, Lawyers Need to Be Diligent About The Software They Use.

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Lawyers need to be weary about the computer company behind the curtin as to what information they are taking from your data!

As Apple is anticipated to announce a new iPhone with AI baked into its operating system, lawyers, like Dorothy in the Wizard of Oz, can no longer stand idly by and trust that the person behind the curtain, i.e., the software creator or owner of their software product, is both trustworthy and not going to use the customer’s data in ways inconsistent with the data owners’ objectives or to protect their data personal identification information. Per ABA Model Rule 1.6(a), lawyers must reasonably ensure that their client’s Personal Identification Information (PII) is protected. And recent events are providing a bit of a minefield for not just lawyers.

I use a popular subscription service application called SetApp. It’s a subscription service that gives me access to over 240 applications. I use many of them daily. But one of its applications, Bartender (which helps clean up and manage your Mac computer’s toolbar), was recently but secretively purchased by a private company. The problem is that little is known about the company. There is a very legitimate concern that Bartender may be improperly using its customer’s computer data – apparently (but not confirmed to be) making unauthorized screenshots. (Note that this is not a critique of SetApp, but I am going to reevaluate my use of Bartender – here are some alternatives you may want to check out.) But this general concern does not end with just “unknown” Wizards.

Lawyers need to be weary about the computer company behind the curtin as to what information they are taking from your data!

It was recently discovered that Adobe changed customer's terms of service. Lawyers should be deeply concerned about Adobe's updated terms of use for Photoshop, which grant the company broad rights to access and remove users' cloud-stored content. This raises significant privacy and confidentiality issues, particularly for legal professionals handling sensitive client data under non-disclosure agreements (NDAs), protecting PII, and trial strategies. Adobe's ability to view and potentially mishandle files covered by NDAs could lead to damaging leaks and breaches of client trust. You can “opt out” of this by going to your account’s privacy settings, going to “Content analysis,” and making sure the “Allow my content to be analyzed by Adobe for product improvement and development purposes” option is not selected. You can also not upload your material to Adobe’s could service – these steps may provide an extra layer of protection, but no one is 100% sure.

As custodians of confidential information, lawyers have an ethical duty to safeguard client secrets. Adobe's overreaching policy raises significant concerns for the legal community. These concerns extend beyond software, as computer companies now integrate AI into their hardware systems.

Many Windows machines are developing their computers to work inherently with MS Windows' own AI, Copilot. At the time of this writing, Apple is expected to announce a new operating system with an AI built into it to work with its new M4 chip. In other words, hardware and software companies work together to have their machines work naturally with operating systems that have AI built into their software. The biggest concern that should be on lawyers' minds is how their data is being used to train a company’s AI. What protections are being built into the systems? Can users opt-out? What does this all mean for us lawyers?

This means that lawyers at any computer skill level must pay attention to the Terms of Service (ToS) for the computers and software they use for work. The warning signs are there. So, stay tuned to your Tech-Savvy Lawyer as we navigate through this together!

MTC

My Two Cents: Lawyers Need to Remember to Navigate Ethical Boundaries When Using Listservs: ABA's Guidance on Client Information Sharing.

/ The Tech-Savvy Lawyer.Page/

Lawyers need to maintain client confidentiality when talking with colleagues in online forums.

The legal profession's reliance on technology continues to grow, facilitating collaboration and knowledge sharing among practitioners. Listservs, e.g., the American Bar Association's (ABA) own “solosez”, serve as an excellent medium for lawyers to discuss day-to-day law office management concerns, legal issues, and even their own cases.  But, when doing so, lawyers must still remember to keep their (former or current) client’s confidentiality when using these public forums.

The ABA recently issued Formal Opinion 511 to address ethical concerns surrounding the dissemination of client information on listservs and similar platforms.  The opinion emphasizes the need for lawyers to exercise caution when discussing client matters online, even in closed forums intended for professional discourse. Revealing confidential client information without proper consent can violate the duty of confidentiality enshrined in Model Rule 1.6.

While listservs offer a valuable resource for seeking guidance from peers, the ABA underscores that lawyers must refrain from disclosing information that could reasonably lead to the identification of a client. This includes details about the client's identity, legal issues, or other specifics that may compromise confidentiality.  But to emphasize the point of the opinion, it’s not just keeping confidential the identity, legal issues, or other specifics that may compromise confidentiality; this includes any information that could reasonably lead to the identification of a client.

To strike a balance between confidentiality and the benefits of professional collaboration, the opinion suggests several best practices:

Lawyers need to maintain client confidentiality with even some of the most minute details if it could “reasonably” reveal the client when talking with colleagues in online forums.

  • Anonymization: Lawyers should carefully anonymize client information by removing identifiers and altering specific facts to prevent inadvertent disclosure;

  • Client Consent: Obtaining the client's informed consent before sharing any details about their matter is the safest approach, though not always practical.

  • Forum Vetting: Evaluate the listserv's membership, policies, and security measures to ensure it provides adequate safeguards against unauthorized access or dissemination of shared information.

  • Contextual Consideration: Assess the sensitivity of the client's matter and the potential risks of disclosure before deciding whether to share information on a listserv.

In today’s social media age, it is easy for people to feel anonymous online. This can lead some people to let their safeguards down and reveal too much personal information. Or, quite frankly, say things they would not say to others in public.  Lawyers, too, need to ensure they are not revealing client information that may breach their ethical obligations to their clients (both current and former).

So, I’d like to repeat myself from above, while digital platforms facilitate knowledge sharing and professional development, lawyers must exercise vigilance to protect client confidentiality.  By adhering to the ABA's guidance and implementing robust safeguards, lawyers can leverage the benefits of online collaboration while upholding their ethical duties. Striking this balance is crucial for maintaining public trust and preserving the integrity of the legal profession in the digital age.

MTC.

Lawyers, Beware! AI is Encroaching into Your Google Searches.

/ The Tech-Savvy Lawyer.Page/

Attorneys need to worry even more about how ai may creep into their work!

The integration of Artificial Intelligence (AI) into Google searches has marked a significant shift in how information is processed, accessed, and delivered. While beneficial across various sectors, this technological advancement poses unique concerns for the legal profession. Lawyers, in our pursuit of justice and accurate representation of our clients, rely heavily on the precision and reliability of the information we gather. The obvious concern lawyers should have is how is AI manipulating this information before we get it (and whether it is accurate).    

Recall, AI's role in refining search algorithms has made finding relevant information more efficient. But, this efficiency comes with a caveat for the legal field. The primary concern revolves around the inherent biases and limitations within AI systems. These systems are trained on vast datasets that inevitably contain biases from past cases and decisions. For lawyers, this means that search results could be skewed or incomplete, potentially overlooking critical precedents or interpretations of law that might significantly impact our case.   

Taking a break from the conference and getting some work done at a coffee shop in Omaha’s old market district!

Moreover, the opaque nature of AI algorithms makes it difficult to understand how certain results are prioritized over others. This lack of transparency can be particularly problematic for lawyers who require a comprehensive understanding of all relevant legal precedents and interpretations to build their cases effectively. The fear is not just about missing out on crucial pieces of information but also about the reliability and authenticity of what is presented.     

As I have previously blogged, Judges, too, have expressed reservations about the uncritical use of AI in legal research and courtroom proceedings. They caution against an over-reliance on technology that may not fully grasp the nuances and complexities inherent in legal reasoning and judgment. Judges underscore the importance of human oversight in interpreting legal texts and making judicial decisions—an aspect that AI currently cannot replicate. Some judges have outright banned the use of AI in their courtrooms - signaling severe punishment should a lawyer be caught using AI in their work.   

Given these concerns, it's imperative for lawyers to adopt strategies to mitigate the influence of AI biases on any research process, including Google searches. The straightforward approach would be not to use Google. But I’m sure the other search engines are catching up to Google and will have their own “AI” search capabilities soon.  Lawyers could try diversifying their sources beyond Google searches by utilizing specialized legal databases that offer peer-reviewed articles and verified case laws - but even Lexis (with Lexis AI) and Westlaw (with Westlaw Precision are getting into the AI game. This just creates more hurdles for lawyers practicing before judges who prohibit the use of AI in their courtrooms. Another approach would be to turn off the “AI” function in your Google searching, but that is easier said than done (stay tuned for an upcoming “How to Turn Off ‘AI’ in Your Google Searches”!) In the end, lawyers can benefit from staying up-to-date with developments in AI technology to understand its capabilities and limitations better and know where it is being used.

A great view from getting a little work done in omaha! Remember, always use a vpn when on public wifi!!!

Lawyers of all ilk need to foster a culture within law firms where continuous learning about technological advancements becomes a priority can equip lawyers with knowledge on navigating through an increasingly digital landscape without overly depending on automated systems. This was something we discussed at the 2024 GPSolo, LP & YLD Joint Spring Conference.  One place you might consider staying abreast of these issues is following your friendly neighborhood, The Tech-Savvy Lawyer.Page Blog! 🤗

Stay Tuned and Happy Lawyering!