Social Media Posts by a Third Party: Florida Bar Rules

From Business of Law Guest Blogger at the National Law Review Margaret Grisdela of Legal Expert Connections – a great quick overview of those tricky Florida State Bar rules concerning social media:

Ethics in Blogging was the topic of a presentation I made this morning at the Broward County Bar Association, with co-presenter Alan Anthony Pascal, Esq. of The Florida Bar.

Posts to a lawyer’s social media page by a third party was one of the topics we covered. Below please find some highlights from the Florida Bar Guidelines for Networking Sites, which applies to Florida attorneys as well as lawyers from other states who are soliciting business in Florida.

Third Party Posts

“Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules.”

Removal of Non-Compliant Information from a Lawyer’s Page

“If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page.”

Request for Removal of Info on a Page Not Controlled by the Attorney

“If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.”

Lawyer Social Media Pages are Exempt from Filing

“Finally, the Standing Committee on Advertising is of the opinion that a page on a networking site is sufficiently similar to a website of a lawyer or law firm that pages on networking sites are not required to be filed with The Florida Bar for review.”

Page references in these guidelines can include a LinkedIn profile, a blog comment, Twitter profile, Facebook page, etc.

Read the Florida Bar Guidelines for Networking Sites here.

Why We Decided to Become Certified Legal Project Managers

From this week’s Business of Law Guest Bloggers at the National Law Review – Stacy D. Ballin and Mitchell S. Thompson of Squire, Sanders & Demsey LLP insight on the need and the process of becoming a Certified Legal Project Manager:

On January 7, 2011, in a simple conference call, the two of us struck out upon a new venture that we believe will help us serve our clients better, and might just mark the start of a new and significant trend for law firm partners.

In a kick-off telephone conversation with consultant Jim Hassett of LegalBizDev, we plunged into an innovative program of study in the rapidly growing field of legal project management.

That conversation was the beginning of a six-month distance learning course put together by LegalBizDev that we can complete at our own pace and that leads to the title of Certified Legal Project Manager. We are among the pioneers in this, the first formal program to certify lawyers as legal project managers.

Squire, Sanders & Dempsey LLP is one of the first major legal practices to take project management to a new level. As the co-chairs of Squire Sanders’ Project Management Committee, we are taking the lead in obtaining the certification ourselves and in helping to plan how to spread best practices within the firm.

What does project management have to do with lawyers? Well, pretty much everything. The world has changed, and clients need more than ever from their law firms. They want their lawyers to partner with them to achieve their business goals and deliver value, not to merely send them a monthly bill showing how many hours have been spent.

Like every other kind of business worldwide, law firms are becoming more cost-effective and efficient in providing their services. It’s no secret that many users of legal services – including the corporations, governments, and nonprofits, big and small, that big law firms serve — have perceived some disconnect between their costs for legal services and the value of those services. This trend has been building since the DuPont Legal Model was launched in the 1990s, and it was accelerated by the recent economic downturn. Even as the economy improves, however, we expect clients to continue to require greater value than ever from their law firms.

The Association of Corporate Counsel’s Value Challenge is perhaps the best known of several concerted efforts by corporate counsel to improve the methods and tools that law firms use in delivering legal services. Squire Sanders has formally endorsed the Value Challenge, and adopted our own principles in the form of the Squire Sanders Partnering for Worldwide Value Covenant. Our combination with Hammonds LLP, which took effect on January 1, 2011, makes us one of a very small number of global firms that clearly articulates the importance of providing cost-effective services to our clients.

Among the principles that are integral to our covenant are that we will proactively offer our clients alternative fee structures; that we will provide budgets and estimates for each engagement and advise the client immediately if there may be material changes in cost; and that we will continuously work to become more cost-effective in the delivery of our services.

Our enrollment in legal project management certification was directly related to our value covenant. If Squire Sanders is going to live by these ambitious principles, our lawyers must understand project management and put it into practice. Unless law firms understand project management principles and put them into action, there is no way that they can thrive and deliver excellence while pursuing alternative fee structures and providing firmer budgets and estimates on hourly matters.

Project management is a well accepted technique in business and industry. It can be defined as the discipline of planning, organizing, securing, and managing resources to achieve a project’s goals within the constraints of scope, time, and budget. We are convinced that the time has come for its careful application to major legal matters, including large transactions and significant pieces of litigation.

Lawyers will benefit from project management tools because they can improve communication with their clients and focus on clients’ true needs, thereby reducing client risk and delivering greater value. Client will benefit because they can work with lawyers who put client business goals first, use creative ways to provide solutions to client challenges and ensure clients receive the best value for their investment in legal services.

There are many challenges involved in bringing the well-tested tools of project management into the legal world. For example, legal project managers must take into account client-imposed deal deadlines, due diligence requirements, opposing litigation counsel and their tactics, and deadlines and court calendars that are out of a lawyer’s or law firm’s control — but we believe that these obstacles can be overcome.

In our certification program, we will do assigned readings from six leading textbooks in the field of project management and answer a series of probing essay questions. We will focus on eight key issues that lawyers must understand in order to be effective project managers: setting objectives and defining the scope of a project; identifying and scheduling activities; assigning tasks and managing a team; planning and managing a budget; assessing risks; managing quality; managing client communication and expectations; and negotiating changes of scope. All along the way we’ll interact with Jim Hassett and his staff.

At a later stage of the course, we will apply project management concepts to an actual matter on our plates at Squire Sanders. For example, we might be asked to assume that the same situation would arise again but that this time the client insists on a fixed price at a lower total cost with better communication throughout. We will have to solve the problem with our new project management tools.

In that first conversation with Jim Hassett in January, we discussed Squire Sanders’ position in the vanguard of this emerging area and how to maximize the benefits to our clients. In future conversations, we will discuss the most efficient ways to make project management information accessible to other members of our firm so that each lawyer can determine the best way to apply these principles in his or her own practice. We hope that the program and the certification will help our firm and our clients succeed in this rapidly changing world.

Got Klout? Measuring Your Law Firm Social Media Efforts

Many thanks to our Business of Law guest blogger Kevin Aschenbrenner of Jaffe PR who provided some truly useful information on how law firms can gauge the effectiveness of their social media programs. Read on….

One of the most frustrating aspects of actively working on law firm social mediaefforts is the feeling that you’re in a vacuum. You often can’t tell if anyone is listening. And, posting, “Do you think I’m awesome?” just won’t cut it.

This is why influence is such a hot topic in social media. Essentially, the more influence you have online the more likely it is that people will not only pay attention to you but also act on what you post. I talk more about influence in this blog post. Go ahead and read it. I’ll wait.

Welcome back. So, influence. It’s a good concept, but it’s a bit of a vicious circle – you need influence to have an impact online but you need to know what your influence is to use it to assess your law firm social media efforts. It makes my head hurt, too.

Or, it used to. Now there’s an online tool that will measure your influence. It’s called Klout (www.klout.com) and it ranks your online influence with a number out of 100. For an example, here’s a link to my Klout Score:http://klout.com/kevinaschenbren. As Klout Scores go, I’m not up there with Brian Solis (85) or Chris Brogan (84), but it’s respectable and, I’m within kissing distance of 50, which is the Klout Score required by a few hotels in Las Vegas in order to qualify for free upgrades (http://adage.com/digitalnext/post?article_id=146189).

But I digress. I’ve found Klout very helpful as a sort of diagnostic tool for my social media efforts. It’s not perfect and I quibble with some of the other information you get in your report, but it’s not a bad guidepost.

To find out your Klout Score:

Go to www.klout.com and type in your Twitter handle.
To see your entire report, I suggest creating an account. It’s free and gives you access to additional data and it will also ensure your score is refreshed regularly.
You can increase the accuracy of your Klout Score by linking your Facebook and LinkedIn accounts.
Check back periodically to see how your Klout Score is doing.

And, if you really want to have fun with your online influence, check out Empire Avenue (www.empireavenue.com). I’ll leave you to explore that one on your own.

To find out your Klout Score:

Go to www.klout.com and type in your Twitter handle.
To see your entire report, I suggest creating an account. It’s free and gives you access to additional data and it will also ensure your score is refreshed regularly.
You can increase the accuracy of your Klout Score by linking your Facebook and LinkedIn accounts.
Check back periodically to see how your Klout Score is doing.

And, if you really want to have fun with your online influence, check out Empire Avenue (www.empireavenue.com). I’ll leave you to explore that one on your own.

Yes, It’s Data Privacy Day

Here’s some news – it’s Privacy Day ! The National Law Review was alerted to this news by Emily Holbrook of the Risk Management Monitor – read on:

It may surprise you, as it did me, to learn that today is Data Privacy Day, an “international celebration of the dignity of the individual expressed through personal information.” But Data Privacy Day also highlights the need for individuals to protect their data and how they can go about doing so.

There are many organizations out there that aim to help individuals protect their personal information and help businesses comply with data protection laws and regulations. The Online Trust Alliance is one such organization, whose mission is to create an online trust community, promoting business practices and technologies to enhance consumer trust globally. They recently released their “2011 Data Breach Incident Readiness Guide” to help businesses in breach prevention and incident management.

According to their newest guide, the true test for organizations and businesses should be the ability to answer key questions such as:

Do you know what sensitive information is maintained by your company, where it is stored and how it is kept secure?
Do you have an incident response team in place ready to respond 24/7?
Are management teams aware of security, privacy and regulatory requirements related specifically to your business?
Have you completed a privacy and security audit of all data collection activities, including cloud services, mobile devices and outsourced services?
Are you prepared to communicate to customers, partners and stockholders in the event of a breach or data loss incident?

With the White House, members of Congress, Commerce Department and the FTC calling for greater privacy controls and breach notifications, self-regulation by businesses is becoming more and more important.

Google, one of the supporters of Data Privacy Day and the initiatives of The Privacy Projects is hosting a public discussion on privacy later this afternoon with representatives from the Electronic Frontier Foundation, the FTC and the National Institute of Standards and Technology scheduled to attend. If you can’t stop by Google’s DC office for this event, don’t worry — it will be captured on video and posted to YouTube soon after.

Want your website to get noticed? Break the rules!

From Moiré Marketing Partners, the National Law Review’s Business of Law Guest Bloggers this week, Sean Leenaerts provides some interesting insights on different things to consider for legal websites:

Every time I hear someone in marketing or advertising talk about “best practices” for website design, I roll my eyes.

Now granted, many of the do’s and don’t’s of web design have merit. They’ve been tried, tested and proven to work. And I believe that certain best practices such as ease of navigation, making good use of white space, ensuring that site text is easy to read and building for fast loading times are sarcosanct. But I also believe that best practices are helping to hold marketers back.

The problem I have with best practices is that while they are there to guide everyone in website design, they also cause everyone to look pretty much the same. Adherence to best practices tends to create a formulaic, templated approach to website design. The logos, colors and images on various sites may differ, but they mirror one another in their composition–i.e. logos in the upper left, navigation at the top, copy centered or aligned to the right, vertical scrolling, etc. They’re design conventions that definitely work, but make for few standout websites.

“Okay,” I can hear you saying, “that’s all well and good. But I’m a law/accounting/financial services firm. My site has to be functional, and it should stand out because of my message, not because it looks cool and creative.” All true. But in order to read your message, your site has to be noticed first. While I’m not advocating that professional services firms push the boundaries of convention just for the sake of being different, there are a few rules you can break (or at least bend) in order to make your site stand out from the competition.

Go Horizontal

While usability studies show that most website users prefer to scroll and read text vertically, most of those studies were conducted years ago prior to the ubiquitousness of touch screens, widescreen monitors and many other developments we now take for granted. For touch screens like those on the iPhone/iPad, horizontal navigation is the preferred form of navigation because it’s more ergonomic to move your hand from side to side than up and down. In the case of monitors, screen resolutions have gotten better. We used to design for 1024 x 768 screen resolutions. Now, many screens have resolutions that are 1440 x 900 and they’re much wider, which means that viewers get more real-estate horizontally than they do vertically.

I also think–and this is strictly my opinion–that our brains are better wired to consume information horizontally. Maybe it’s because we’ve been doing it that way offine for so many years. Books are read with a horizontal flip, galleries place paintings and photographs alongside each other, and most of our world is organized horizontally rather than vertically–i.e. our houses are next to each other and we move through the world in a mostly linear fashion.

Chart a New Course

Navigation buttons and links should always be easy to find, but do they always need to be at the top or along the sides of the page? And do they always have to be “buttons”? Unconventional navigation–as long as its easy to find and figure out–has the ability to engage the audience and keep them on your site. A good example of navigation that breaks with traditional design and works well is from the web design firm Hello Goodlooking in Helsinki, Finland:

Here, the navigation buttons are centered on the page and move to the sides when you click on them and open a window. They’re easy to see, easy to understand and make the site simply downright fun to navigate.

Shift Your Perspective

Right-aligned page content is often not seen in a world of centered or left-aligned web pages. Whenever I come across a page that is aligned uniquely, I have to pause and take a second look. It’s a simple (and safer) way to look unique without having to deviate from other conventions of website design.

Be Bold

Using reversed type, multiple typefaces and unique fonts is generally frowned upon in website design. Yet sites that do all or some of these things tend to grab a lot of attention–and not necessarily for all the wrong reasons. And you don’t have to be a kooky design firm to do it. Morrison Foerster is a law firm whose website is truly unique within the industry. No images, just type–and mostly reversed type, at that. Big, bold headlines. A conversational tone. And don’t even get me started on their careers site, which has to be one of the best in any industry. Most law firms make claims to be different and innovative. MoFo’s website backs it up.

Sometimes breaking with best practices is worthwhile. In fact, I’ll go so far as to say that it’s the only way to truly stand out. Striving for innovative design and a better way of web browsing has brought about some great changes in the last decade. Being different to be better is a perfect example of when the rules of best practices should be broken.

ABA Second Annual Electronic Discovery & Digital Evidence Workshop Feb 18-19 San Francisco, CA

The National Law Review is a proud supporter of the ABA’s Second Annual Electronic Discovery and Digital Evidence Practitioners’ Workshop Feb 18-19 in San Francisco, CA.

This practitioners’ workshop will provide in-depth and hands-on education for in-house and retained counsel who are involved in (or who expect to become involved in) litigation involving electronic discovery and digital evidence. Executives and other litigation stakeholders from large and small public and private organizations will also gain invaluable insights on how best to prepare your technical staff and information systems to respond to requests for electronically stored information (ESI). Addressed to intermediate and advanced ESI litigation practitioners, the workshop will be taught by our faculty of leading federal magistrate judges, ESI litigation practitioners, forensics experts, and technology thought leaders, all of whom have significant experience in managing all aspects of ESI litigation. This workshop is unique in that its scope is much broader and deeper than traditional e-discovery courses that address only basic ESI concepts.

The curriculum consists of case studies, a mock trial, keynote sessions and panel discussions with luminaries in the field, and small workshops for practitioners, technologists, and forensic experts. We expect the entire program will be both illuminating and entertaining. Topics will range from ESI search trends and developments to emerging digital evidence issues and ethics to evidentiary issues from a criminal perspective. The sessions will address the key rules from the Federal Rules of Civil Procedure that impact on e-discovery. There will also be plenty of time for interaction with three federal magistrate judges and for networking at the receptions at the end of each day.

The Conference will be held at the University of California – Hastings College of Law and mandatory continuing legal education (MCLE) accreditation has been requested from all states that require continuing legal education. 15.25hours of CLE credit including 1.0 hours of Ethics credit have been requested from those states recognizing a 60-minute credit hour and 18.3 hours of CLE credit including 1.0 hours of Ethics credit have been requested from those states recognizing a 50-minute credit hour.

Click Here for More Information and to Register.

When Is Research Misleading?

Sue Stock Allison, the Managing Director of The Brand Research Company, as Sister Company to Greenfield / Belser Ltd. was recently the National Law Review’s recent Business of Law Guest Blogger. Sue shared five key things for Law Firms to keep in mind when performing opinion research.

Sometimes, when it comes to opinion research, what you see is not necessarily what you get. For instance, focus group moderators can inadvertently (or purposely) create bias among recipients. Or when questioned about buying habits or intentions, people may tell questioners what they want to hear, rather than what they actually feel.

I can’t count the number of times I’ve cautioned against considering all research valuable or even accurate. But there are ways to ensure that your findings are sound when undertaking research among your clients, your organization members or your markets.

Here are five tips for making sure the research your firm is using is useful:

1. Know your Goals

I know you’re thinking, “Of course, we need goals!” but, alas, research can be initiated for nutty reasons. My personal favorite: “Everyone else is doing it.” That everyone else is doing it may make initiating a new study an excellent recommendation, but you still must match your research goals to your business goals. Do you define success by a measurable return on the research investment, or do you just want to touch your most loyal clients? Are you trying to guide or justify a specific marketing expenditure or, more loosely, gauge awareness in a particular market? Knowing what you want to achieve is crucial to obtaining the data you need. Detailing the specific information you want to know, even using hypothetical statements of finding, can help you to make your objectives clear. In this case, the cart (what you wish to carry away from the research) truly comes before the horse.

2. Fully Define Your Target Audience

Do you put stock in those general market studies that “rank” your business better or worse than others? Syndicated studies are great gossip and provide fodder for your website’s homepage

(“We’re #1 in reputation for excellence for the third straight year!”), but there is limited value in being considered number one for anything if those who provide the ratings do not purchase or even influence the purchase of your services.

When conducting research, or using research conducted by someone else, you need to ensure that respondents include individuals whose opinions you really need to know. Do you want to know what your top 25 clients think, your clients with the highest potential or your clients who seem to be fading away? Are you looking for guidance from prospects for a specific service, in a specific geographic area, or from a certain type of business? If existing research was conducted among exactly the right group of individuals–excellent! If not, you’ll need to conduct your own research to get what matters to you.

3. Select the Best Methodology

As popular as they are, focus groups are one of the most misused research methodologies. They are a qualitative research method, statistically invalid, which necessarily makes them ill-suited for drawing conclusions about habits or actions. Whether you conduct one session with 10 individuals or 10 sessions with a total of 100 individuals, they are never conclusive. Focus groups are, however, an excellent way to come up with ideas about proclivities or intent that can later be tested with quantitative surveys. Focus groups can help you discover undetected problems with an ad campaign, potential challenges of a new service offering, or the usability of a website design. But when you want to understand what is most important among a number of choices, what really drives client loyalty, or how to best position your business in a market—these objectives require a quantitative method that can provide the metrics you need.

4. Ask the Right Questions the Right Way

Another common problem with focus groups and other forms of research is how easily respondents can be led to particular responses, and how hard it is for them to accurately assess and report their own motivations. When you develop your discussion guide, in-depth questionnaire or survey instrument, you need to make sure the questions are not leading, that your respondents are not primed to answer in a particular way. (In fact, when conducting focus groups, I often ask participants to write down their initial impressions before discussion even begins.) For telephone or in-person interviews, make sure your interviewers are skilled in the techniques that will bring even subconscious motivations to the surface.

5. Interpret with Caution

How do you know if your findings are truly reliable? Even if you’ve clearly laid out your goals, comprehensively defined your target, picked the best methodology, designed an effective research instrument, and used excellent interviewers, the results can still be misleading if your interpretation of the findings is flawed. Reliable interpretation begins with proper analysis of the data, which requires understanding how the target population was selected and ensuring that your resultant data includes the information needed to feed your conclusions. Perhaps the most common problems are conducting quantitative analyses with too few responses, or having a response rate that is too low–both of which beg the question: How do the non-respondents differ from those who are included in the research?

So, is research misleading? It certainly can be, but by using these guidelines, you can take the necessary steps to ensure that your research will more accurately provide the information you need.

Law2020™- What Will It Take for Law Firms to Thrive?

The Business of Law guest blogger at the National Law Review this week is Meredith L. Williams of Baker Donelson. Meredith examines three areas: Law firm Technology, Firm Characteristics and the Skill set Lawyers and makes educated predictions on how successful will look.

Law2020™ is the brainchild of Bryan Cave’s Strategic Technology Partner John Alber and the International Legal Technology Association (ILTA). I have had the privilege of working with John and the ILTA organization over the past 4 years as a part of the conferencing planning committee. This year I am serving as a Conference Vice-President for the upcoming international conference being held in Nashville, TN from August 21^st – 25^th, 2011.

The concept of Law2020™ is based upon an anticipation of the legal industry encountering the same market dynamics that have challenged the newspaper industry since 2000-2010. The online environment changed newspapers’ production, employment and consumption. The ACC Value Challenge has placed law firms under a microscope like that the newspaper industry is under, thus requiring the legal industry to make strategic changes to meet the new needs of clients. Will law firms see a similar shift due to the economy and the changing client landscape? What can law firms learn from the newspaper industry and those papers that survived? The real question for forward-thinking law firms is not what will it take for law firms to survive in the year 2020, but what will it take to thrive?

We will look at this concept from 3 perspectives:

1. What technologies will successful law firms need in 2020?

2. What will be the characteristics of successful law firms in 2020?

3. What will be the skill set of successful lawyers and staff in 2020?

What technologies will law firms need in 2020?

Technology will continue to play a large role, as it does today, in the advancement of law firms in the year 2020. The key trends of technology will center on legal project management, alternative fee arrangements, transparency, and mobility.

The majority of law firms are starting to look at legal project management and alternative fee arrangement tools. Although these are new concepts for law firms, the thought process behind both is not new. Lawyers are already using use many tools to help manage their files. However, the idea of pre-planning is new; taking a step back and visualizing the entire case or deal and mapping out the various steps and risks to reach an end result, as well as the cost of each step. Tasking, budgeting and knowledge management tools will continue to grow exponentially over the next 10 years as a result of client desire for more understanding and control. Intranets, budget tools, tasking applications, and other project management tools will be in high demand.

A lesson learned through the WikiLeaks scandal is that transparency of information is now expected, not just desired. The same can be said of law firm clients. Clients crave both an advocate and a partner. They want to understand everything that a lawyer is doing for them, they want the lawyer to fix problems, and they want the lawyer to help manage risk. Tools such as extranets provide the client with a full view of all case and deal materials; these are now being used by many law firms in the U.S. Over the next 10 years, clients will have access to risk management tools via these legal service platforms. Clients will be able to use online legal services provided by law firms to run their businesses and comply with new regulations and laws.

The number one trend law firms must deal with is mobility. The IPad, IPhone, Blackberry and other mobile device growth over the past few years is an indication of what individuals will be expecting in the coming years. All people, including clients, want to access their applications and information when, where, and how they want. As mentioned earlier, extranets and information sharing will increase over the next decade. In addition, video capabilities and cloud computing will be prominent technologies for all law firms. Law firms are expanding; however, there is a desire to cut expenses but keep the personal interaction. Video via conferencing, web cams, etc. can make this happen. Law firms are also looking to the Cloud as an opportunity to cut slim expenses and create complete mobile enviroments. Whether a firm chooses to place all critical application in the Cloud or only a few, Cloud use will continue to grow in the legal industry.

What will be the characteristics of law firms in 2020?

As technology changes over the next 10 years, so will the characteristics of law firms. Much of this will be a result of the changing landscape of clients. Additonally, management will shift to accommodate a new generation with different expectations. Other new resources include the virtual law firm, outsourcing, partnership track changes, increased risk sharing with clients and possible investments by non-lawyers.

Virtual law firms and lawyer mobility will increase. Brick and mortar buildings will not go away, but we will see an increase of lawyers choosing to work for a firm while at home or in a different location. In addition, legal process outsourcing will appear in law firms over the coming years. Many firms are venturing into this field with document review and other e-discovery tasks. Clients are pushing to keep expenses low and no longer want to pay large costs for firms to do document review tasks, when these can be outsourced for half the cost.

As noted in the alternative fee arrangements and transparency discussion, clients are looking for a partner to help bear some of the risk with their representation. Many clients will not pay the typical billable hour. They want to hire firms that are willing to share this risk and allow for different methods of payment. Some want flat fees with exceptions or bonuses based upon the efforts of the law firms. With these new methods of revenue for a law firm, the traditional path to partnership, currently based primarily on billable hour requirements, will change. How law firms react to this will determine whether they retain their lawyer resources.

One law firm characteristic available in other countries is the ability to have law firm investment by non-lawyers. Allowing non-lawyers to invest in the firm creates more loyalty to the law firm and the work the non-lawyer is doing for the firm and clients. It is something US firms will consider as the economic shift continues to reshape law firms as we know it.

What will be the skill set of lawyers and staff in 2020?

We have now taken a look at what technologies will be used by law firms in 2020 and what a law firm will look like. The bigger question is what skills will be required by lawyers and staff in 2020? Efficiency of the law practice, a streamline business model, relationship building and marketing via social media and the capability to work via a new legal service platform will dominate the skills of lawyers in 10 years.

As discussed above, the economy and client expectations will drive many changes in the legal industry, including the skill sets needed to practice and support the practice. To be specific, lawyers will begin to hone their practices to increase efficiency. This will be mainly a result of the increase in LPM and AFAs. By breaking down different areas of law into steps and risks, lawyers will better understand each step and will find ways to deliver a better quality work product at a lower cost.

In addition, law firms will begin to consider streamlining certain tasks through administrative staffs to create better business processes. For example, layering secretaries with 5-6 attorneys and then creating an additional level of executive assistants to provide project management and client communication is something new that law firms will consider. This will allow new alternative paths for legal staff.

Lawyers also need to learn to market and build relationships via social media. This is the biggest change we have seen over the past few years, and the usage is drastically increasing. This new form of communication and collaboration needs to be harnessed for a lawyers to reach certain clients with younger and innovative leadership.

Conclusion

In conclusion, the legal profession will see changes over the next decade. How a firm adapts to the changes in the practice of law and client needs will determine whether that firm will survive. For additional information regarding Law2020™, please visit the International Legal Technology Association Peer to Peer Magazine on the concept.

eDiscovery & Social Media

The National Law Review’s featured guest blogger last week was Meredith L. Williams of Baker Donelson provides some great insight on discovery issues related to social media sites:

Social media is not going anywhere, so we must learn to live with it and use it to our advantage and within the confines of the newly articulated and always changing rules. If ever a doubt, one can look to the Nielson Report (“What Americans Do Online: Social Media and Games Dominate Activity,” Aug. 2, 2010) that states two-thirds of the internet population utilize social media sites. Internet users now spend more than 10% of their online time on social media sites, and usage is constantly increasing. With this rise in social media usage, the issues surrounding ediscovery in the realm of social media data is an important consideration of litigation.

The definition of legal discovery is locating all documents that are relevant to support the litigation. But how does ediscovery work when the content is not owned or controlled by the business? How does a business preserve data that is outside of its firewall? Finally, how does one seek relevant information held on social media sites?

Social media sites are not like email or word processing documents when it comes to preservation. These sites are operated outside of a business’s firewall by a third party. Data is normally scattered on many sites and connected by many people or custodians. Finally, the retention policy or schedule of a business does not affect data located on social media sites. When a business maintains social media pages, it has a duty to preserve the data that may be relevant in anticipated or actual litigation.

Seeking information from social media sites can be difficult at best. Many times discovery of this data must be gained through consent or authorization of a third party, which only causes an extra, and often expensive, burden. Each third party is different in how it maintains the data, and each has the right to delete any content for violation of its terms of use policy, at any time. That deleted information could be relevant to litigation.

Unfortunately for businesses, the courts are only beginning to outline the duty of preservation and the right to discover the information from social media sites. The best line of defense for many businesses is to develop internal policies and training programs to educate all employees of the risks of using social media. In addition, new software now exists that can aid in preserving data.

Duty to Preserve

The 2006 Federal Rules of Civil Procedure amendments changed the discovery rules to allow a party to request “electronically stored information” within the “possession, custody, or control” of the responding party. A duty to preserve potentially relevant evidence exists when litigation is “reasonably anticipated.” In addition, parties who fail to preserve electronically stored information (ESI) are subject to penalties. Social media data fits the definition of ESI; thus, businesses must deal with the issue of preserving and possibly producing social media data that falls under their data retention policy.

Due to the fact that social media sites are owned and controlled by third parties, vendors are beginning to develop technology to capture dynamic web pages for preservation. The first few companies in this market include Iterasi, Smarsh, Arkovi and LiveOffice. Additionally, Adobe may be used to capture web images in static format. These are but a few examples of new technologies that businesses are considering to meet their duty to preserve and produce ESI.

Recent Case Law

Additional issues remain – whether the information on social media sites is considered private, whether it is discoverable and whether it is admissible as evidence. Recent case law has addressed these as yet unanswered issues.

In Guest v. Leis, 255 F.3d 325 (6th Cir. 2001), the court held that there is a lack of expectation of privacy regarding public postings on social media sites. The user has the right to select privacy preferences on his social media sites. Certain settings allow the public to see limited information and authorized, connected individuals to have greater access. In addition, many social media site privacy policies specifically state that certain postings are subject to a weakened privacy expectation. Courts have generally held that when a user makes information available publically via their privacy settings, there is a lower expectation of privacy and, therefore, the information is discoverable.

Jumping ahead to the current year, we find EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010). In this case, the court compelled production of relevant content from social media sites. The court discussed discovery of social media site data as simply “requir[ing] the application of basic discovery principles in a novel context.” The facts of Simply Storage Mgmt, involved the defendant seeking production of social media site profiles and communications from Facebook and MySpace. The court ordered the plaintiff to produce the content that was relevant to the case. The plaintiff argued that requiring such production would infringe on his privacy. However, the court held that the expectation of privacy is not a basis for shielding discovery. In addition, the court found that any privacy concern therein was lessened due to the fact the information had already been shared.

Earlier this year, Crispin v. Audigier (C.D. Cal.) (May 26, 2010), brought us a new ruling regarding social media and the Stored Communications Act (SCA). In this case, the court was reluctant to allow discovery of private social media email communications. The case involved a copyright infringement claim. Audigier subpoenas the private social media messages of Crispin. A magistrate judge disagreed with Crispin’s arguments that these communications fell under the SCA, preventing the provider of the messaging service from releasing private communications, because the social media sites messaging services are used solely for public display. However, the district court reversed the ruling, holding that Facebook and MySpace allow private message or e-mail services which are separate from the general public posting. This case held that the SCA protects Facebook and MySpace messages that aren’t publicly available. Therefore, these messages cannot be subpoenaed in civil litigation. In addition, the court left the door open for further clarification, noting that “Facebook wall postings and the MySpace comments are not strictly ‘public,’ but are accessible only to those users plaintiff selects.”

On the other side of the country, we find a slightly different ruling with Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010). TheRomanocourt allowed discovery of an entire social media site with all current and deleted postings. The court ordered the plaintiff to provide the defendant with access to private postings from two social media sites. The court reasoned that information contradicting the plaintiff’s claims was included on the public sections of the plaintiff’s social media site and, therefore, it was reasonable to believe that the private sections might contain additional relevant information. The court even cited Facebook and MySpace policies, which warn users they should have “no expectation of privacy.”

Even if one is able to surmount the difficult hurtle of obtaining data from a social media site, an equally daunting challenge remains – getting the data admitted. The main issue with admissibility is authenticity; spam, viruses, hackers and the like make social media sites susceptible to manipulation or fraud. For this reason, courts have consistently been cautious when admitting social media data. In some cases, judges have become online “friends” with a party in order to authenticate postings, photos, captions and comments. (Barnes v. CUS Nashville, LLC). Other courts have allowed printed copies with time date stamps to corroborate facts. (Treat v. Tom Kelley Buick Pontiac GMC, Inc.). Finally, some courts have used circumstantial evidence associated with the creation of the data (i.e. metadata and hash tags) to authenticate social media content. (Lorraine v. Markel Am. Insur. Co.). Admissability remains an area of concern as the use of social media data in discovery becomes the norm.

Discovery of Social Media Data

A lawyer must decide early on whether relevant information exists on social media sites. Within that evaluation, the costs to preserve, collect, review and produce the social media information should be considered.

Start discovery of social media by conducting large sweeping web searches for public social media sites of adverse parties or adverse witnesses. Many individuals do not lock profiles or use privacy settings; therefore, all postings, messages, comments, etc. are open to the public. Preserve the sites with date stamps.

If an individual’s social media sites are set to private, and, therefore, not open to the public, what can a lawyer do? Many boards of ethics do not allow lawyers to “friend” anyone to gain access to private profiles of information (NY State Bar Association Ethics Opinion 843 (Sept. 10, 2010)). So, instead of friending an individual, use discovery requests. Start with a document request asking for all postings and messages that are related to and relevant in the litigation. One can also consider requesting an access wavier to social media sites that allow for complete access to the site. LinkedIn has a standard wavier located on its site. Finally, ask for all social media identifications used by the adverse party in an interrogatory. Regardless of what direction taken, social media should be a part of the ediscovery process.

Conclusion

In conclusion, a business should take inventory of what social media sites are being used within the organization. Then, set policies to help educate all employees of the risks regarding social media usage. Finally, decide if backup software is needed to help with preservation and production of the business’s own social media data. Regardless of retention schedule taken with social media, plan to always show the court that you’ve done your best, which is all that is expected.

For lawyers, be prepared to incorporate social media into an edisovery plan. Start early within the litigation. Draft standard document requests, waiver forms or interogatories around social media production. Finally, be aware of the changing legal landscape on privacy, discoverability and admissibility, as these areas will continue to change, more and more rapidly in the future.

Legal and Risk Management Implications of Cloud Computing

We’ve been seeing a whole bunch of things at the National Law Review about the legal risks and risk management issues related to cloud computing. Accordingly, we’d like to share some of the better articles we’ve come across on the NLR and on Twitter…

For an Overview of What Cloud Computing or SaaS is and the Advantages and Disadvantages for Businesses, Especially Law Firms…..

Are You Ready For the Cloud? from Baker Donelson

Lawyers Should Not Be Wary of SaaS and Cloud Computing by Niki Black of Lawyerist.com

What Cloud Computing Really Means from InfoWorld.com

What Lies Ahead? Business and Legal Issues in the Coming Decade from Much Shelist

For Risk Management and Legal Considerations Related to Cloud Computing or SaaS…..

The Cloud and Your Data from Risk Management

The Legal Issues Around Cloud Computing by Amit Agarwal of Digital Inspiration

Privacy and Information Security for Emerging Businesses by Poyner Spruill

For Specific Things to Consider When Choosing a Cloud Computing Provider….

Putting Cloud Data Storage Providers to the Test by Risk Management

7 Questions For Any Cloud Based Service from the Legal Typist, Inc.

How to Evaluate Cloud Computing Providers by Jason Baker – Data Center Knowledge

Third Party Posts

Removal of Non-Compliant Information from a Lawyer’s Page

Request for Removal of Info on a Page Not Controlled by the Attorney

Lawyer Social Media Pages are Exempt from Filing

Share this:

Like this:

Share this:

Like this:

To find out your Klout Score:

To find out your Klout Score:

Share this:

Like this:

Share this:

Like this:

Go Horizontal

Chart a New Course

Shift Your Perspective

Be Bold

Share this:

Like this:

Share this:

Like this:

Here are five tips for making sure the research your firm is using is useful:

1. Know your Goals

2. Fully Define Your Target Audience

3. Select the Best Methodology

4. Ask the Right Questions the Right Way

5. Interpret with Caution

Share this:

Like this:

What technologies will law firms need in 2020?

What will be the characteristics of law firms in 2020?

What will be the skill set of lawyers and staff in 2020?

Conclusion

Share this:

Like this:

Duty to Preserve

Recent Case Law

Discovery of Social Media Data

Conclusion

Share this:

Like this:

For an Overview of What Cloud Computing or SaaS is and the Advantages and Disadvantages for Businesses, Especially Law Firms…..

For Risk Management and Legal Considerations Related to Cloud Computing or SaaS…..

For Specific Things to Consider When Choosing a Cloud Computing Provider….

Share this:

Like this: