My Two Cents: Other Issues to Learn from an MA Lawyer's Misconduct - Don't be Lazy and Hit “Reply all” in Your Emails - Check Your Work!

by not proofing your e-mail before just “replying all,” you can create a slew of ethics issues for yourself! 😱

In Massachusetts, a lawyer faced public reprimand after inappropriately advising a bankruptcy attorney to ignore a court's call. The lawyer, defending a company and its owner in a pretrial hearing, suggested the possibility of a bankruptcy filing to the court. However, during the session, he covertly emailed and texted the bankruptcy lawyer with the message "Don't pick up your phone," an act he didn't disclose to the judge but accidentally revealed to opposing counsel by including him in the email to the bankruptcy lawyer. This action breached multiple professional conduct rules, leading to his reprimand. So, what lessons can we learn from this (aside from not engaging in conduct that is prejudicial to the administration of justice)?

From this story, attorneys can learn the critical importance of attentiveness when managing email communications. Notably, we should:

1. Be wary of the "reply all" function to avoid inadvertently sharing information with unintended recipients.

2. Always confirm the recipient list before sending sensitive information.

3. Understand that digital communications are not private and can be disclosed in court.

4. Recognize that actions taken in the heat of the moment can have serious professional consequences.

5. Keep in mind the ethical implications and rules of professional conduct when communicating during legal proceedings.

practical e-mail management can help create a more peaceful and ethically compliant law practice! 😀

I think the most important lesson is to always check your work before submitting it! I am not encouraging lawyers to be deceptive in their work, break laws, or not follow the rules of ethics.  But a lot of these problems (aside from his unethical behavior) would have been prevented if the lawyer just proofread his work (including who he was sending his work to) before he sent it. 🙄

My Two Cents: Presentation In Your Word Documents is Everything!

THe strength of your argument can easily be overshadowed by how it is presented on the document itself.

A Georgia attorney has been disbarred for submitting "a fabricated e-mail" to the bar as part of his defense of a bar complaint.  A complaint had been made against this attorney for lack of proper representation. The details of the complaint and the history of the representation are not important for this editorial.  What is important to this editorial is that the Respondent ... 

"...sent several email exchanges purporting to be between her and [Complainant]. However, the March 9 email terminating Respondent’s representation supposedly sent from [Complainant] was in a different format and font than the others, and, unlike in the other emails, [Complainant] appeared to use perfect diction, capitalization, and punctuation. [Complainant] denied having sent this email, and the State Bar determined that the email was likely falsified by [Respondent]."

First, please forgive me as I set a little background about myself as it relates to this posting. I used to collect comic books as a teen.  I had to buy the perfect comic - no rips, bends, creases, watermarks, etc.  With an eagle eye, I'd make sure I got the perfect comic.  Now, bookend the other side of my skill for detail with my high-school ability to play with font types, sizes, margins, etc., to stretch out a class paper to a requisite number of pages for an assignment - mind you, I don't do that today.  This culminated into a skill where I can look at a document, say generated by a law clerk or opposing counsel, and can tell if the formatting is not right - spacing between pages is not consistent, two spaces between two words or sentences instead of one, font size is off, and so on.

be a super hero to your client with truth, justice and proper document formaTting!

With this background, I can usually tell when something is off on a document. Either in hard copy or on the screen, if the formatting is not correct, I can catch it. But what this attorney did, generating documents so obviously inconsistent in typical formatting (and grammar), aside from the common sense (and bar ethics) of not creating fake evidence, shows a fundamental lack of computer skills - formatting, styles, etc. If it’s not apparent to you that your spacing, paragraph returns, or tabs are off, turn on your non-printing formatting  marks to see how your document is constructed. (Check out this Wednesday's How to learn how to reveal now non-printing characters, the function that shows in your document your spaces, paragraph returns and tabs.)

IMHO, if your document does not look right, regardless of how strong your discussion is, the reader is likely to doubt the veracity of the argument.

Happy Lawyering!

MTC

Maintaining Legal Operations During Internet Outages: Tips For Lawyers

The downing of at&T’s INTERNET service caused some concern across the us…

AT&T’s outage last week should serve as a warning to lawyers about their own internet reliability (I don’t know how a $5 refund will alleviate AT&T customers from the self-panic ensued by the outage?🧐).  In the digital age, the legal profession, like many others, has grown increasingly reliant on the Internet for its operations. The internet is an indispensable tool in a lawyer's arsenal, from conducting research and accessing legal databases to communicating with clients and filing documents electronically. However, this dependency also means that internet outages can significantly disrupt legal operations, posing challenges that law firms must navigate to maintain continuity and uphold their duties to their clients.

Lawyers can take several proactive measures to ensure minimal disruption in their work due to internet outages. Here are five strategies to consider:

1. Backup Key Resources Offline: Lawyers should ensure they have offline access to critical resources, such as legal databases, case law, statutes, and client files. This can involve preemptively downloading essential documents and using software that allows offline access to these materials.

2. Establish a Redundant Internet Connection: Having a backup Internet connection can be crucial for maintaining productivity during an outage. Since AT&T went down last week, having a different provider (perhaps on a cheaper plan) could be a good investment. This could be in the form of a secondary wired connection, a mobile hotspot, or a tethering option through a smartphone. Investing in a reliable data plan for mobile devices can provide an immediate alternative if the primary connection fails.  (For example, I have Verizon FIOS for the office Wi-Fi, AT&T for phone and internet on my personal cell, and Verizon mobile for my blog phone and internet.  BACKUP, BACKUP, BACKUP, or REDUNDANCY, REDUNDANCY, REDUNDANCY!

3. Regular Data Backup: Regularly backing up data to external drives or cloud storage that can be accessed offline ensures that work can continue seamlessly, even without an internet connection. Automated backup solutions can be set up to run during off-hours to ensure that all recent work is securely stored.  Remember, my So, if one of your backups is in the cloud, then your other backup should be in a physical location like a hard drive at your office or offsite.

4. Develop and Test an Emergency Plan: It does not help if your emergency strategy doesn’t work! Creating an emergency plan that outlines steps to take during an internet outage can help minimize downtime. This plan should include contact information for IT support, steps for switching to a backup internet source, and a list of critical tasks that can be performed offline. Regularly testing this plan ensures everyone knows what to do when the internet goes down.

5. Invest in Training and Preparedness: Ensuring that all staff members are trained on how to access and use offline resources and understand the emergency plan is crucial. This can include training on manual procedures for tasks typically performed online, such as filing documents or conducting research.

lawyers can be proactive in the event of their internet going down!

By taking these proactive steps, lawyers can minimize the impact of internet outages on their practice, ensuring that they can continue to work effectively and meet their clients' needs, even in the absence of an online connection. Internet outage is a major concern I have with Law Practice Management providers based solely on the internet – if you lose access, there is going to be a major problem – and I don’t know how “understanding” a judge is going to be if you miss a filing deadline because the internet went down.  But in the meantime, what can lawyers do if there is downtime due to the internet being offline?

When the internet goes down, a lawyer, like any other professional reliant on online resources, can still stay productive by reverting to more traditional methods of working and organizing. Here are the top five things a lawyer should consider doing when you are completely stuck offline, and you have done everything necessary to protect your client’s interests:

Lawyers can still be productive during an internet outage!

1. Review Physical Files and Documents: Without internet access, it's an excellent opportunity to organize and review physical case files, documents, and any printed material that might have been set aside. This can also be an excellent time to catch up on reading case law, statutes, or regulations relevant to current cases that haven't been prioritized.

2. Plan and Strategize: Use this time to strategize for current cases or projects without the distractions of emails and online notifications. This can involve outlining arguments, planning case strategies, or brainstorming solutions to legal problems. It's also an excellent time to set goals and priorities for the coming weeks or months.

3. Networking and Client Relations: Reach out to clients, colleagues, and other professionals through phone calls. This can be an excellent opportunity to check in on clients, discuss cases, and build stronger relationships. Networking can also involve setting up future meetings or lunches.

4. Continuing Legal Education (CLE) and Professional Development: Lawyers often have CLE requirements to maintain their licenses. When the internet is down, it's an excellent time to catch up on CLE materials available in physical formats, such as books, journals, or even pre-downloaded audio or video courses.

5. Administrative Tasks and Office Organization: Use the downtime to catch up on administrative tasks that might have been neglected. This can include organizing the office space, filing, billing & invoicing, or even planning for future marketing efforts.

Did AT&T’s internet outage impact your firm’s OPERATIONS? Please share your stories!!!

While the internet is a crucial tool for modern legal practice, being disconnected can provide a valuable opportunity to focus on tasks that might otherwise be overlooked or deferred. It's also a reminder of the importance of having backup plans and being adaptable in the face of unexpected disruptions.

Happy Lawyering!

MTC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Power of AI in eDiscovery:

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

The Role of Human Judgment:

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

The Synergy of AI and Human Expertise:

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

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

The Ethical Considerations:

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

The Professional Ethical Considerations:

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

The Future of AI in eDiscovery:

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

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

Conclusion:

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

MTC.

Happy Lawyering!!!

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

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

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

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

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

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

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

MMH and MTC!

Happy Lawyering!

Shout Out: Previous Podcast Guest Claude Ducloux webinar on the Ethics of Freelance Legal Services: Issues & Best Practices.

SHout out to Claude!

Given the rise of virtual work (and the technology involved), check out previous podcast guest Claude Ducloux's webinar tomorrow: The Ethics of Freelance Legal Services: Issues & Best Practices. This informative session aims to clarify the nuances of freelance legal work for both hiring attorneys and freelance lawyers. Topics covered include the duty to reveal conflicts through limited disclosure of client information, protecting freelance lawyers from unnecessary access to firm files, different financial relationships and fee-splitting arrangements, distinctions between freelance and unbundled legal services, and best practices for all parties involved. The webinar takes place tomorrow, May 17, 2023, at 1 PM PT / 3 PM CT / 4 PM ET. If you can't attend, register anyway to access the recording the next day.

Enjoy, and Happy Lawyering!