ABA: Lawyers Can Access Juror Public Social Media Posts but Contact Not Permitted

In a new ethics opinion (Formal Opinion 466 ), the ABA Standing Committee on Ethics and Professionalism opines that lawyers may access public information that jurors or potential jurors put on the Internet about themselves, but they may not communicate directly with the jurors, such as asking to “friend” them on Facebook or “connect” with them on Linked In.  The Committee’s summary of the opinion states:

Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.  A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).

The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).

In the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.

ABA ethics opinions are not binding authority but are often adopted by state ethics authorities construing state rules based upon the ABA’s Model Rules of Professional Conduct.

Lawyer Alert– Microsoft Announces Security Flaw in Internet Explorer



Microsoft has issued a security advisory regarding vulnerability in Internet Explorer that could allow remote code execution. Microsoft Security Advisory 2963983 states:

“Microsoft is aware of limited, targeted attacks that attempt to exploit a vulnerability in Internet Explorer 6, Internet Explorer 7, Internet Explorer 8, Internet Explorer 9, Internet Explorer 10, and Internet Explorer 11.  The vulnerability is a remote code execution vulnerability. The vulnerability exists in the way that Internet Explorer accesses an object in memory that has been deleted or has not been properly allocated. The vulnerability may corrupt memory in a way that could allow an attacker to execute arbitrary code in the context of the current user within Internet Explorer. An attacker could host a specially crafted website that is designed to exploit this vulnerability through Internet Explorer and then convince a user to view the website.”

So what does all this mean in practical terms? To exploit the vulnerability, hackers have to trick users into taking some sort of action such as clicking on a link or opening an e-mail attachment.”An attacker who successfully exploited this vulnerability could gain the same user rights as the current user. If the current user is logged on with administrative user rights, an attacker who successfully exploited this vulnerability could take complete control of an affected system. An attacker could then install programs; view, change, or delete data; or create new accounts with full user rights.”

How to Protect Yourself

If you are a Windows XP user, the product is no longer supported by Microsoft, so no security patch is likely to be forthcoming. It is estimated that 28% of Windows Users are still using the 12 year old XP—seriously, it’s time to move on.  Until you do, you can avoid the IE vulnerability by using any Web browser but Internet Explorer. Good choices in the short term would be Google Chrome, Safari, or Mozilla Firefox. If using another browser isn’t an option, Microsoft suggests downloading its Enhanced Mitigation Experience Toolkit version 4.1 to help guard against attacks until a patch is released.

Users of all Windows versions newer than XP should also use alternative Web browsers, such as the three suggested above until a security patch for the IE vulnerability is provided by Microsoft.

Recommended iPad Apps for Lawyers—The Hytech Lawyer (Winter 2014)

The Hytech Lawyer’s updated iPad Application recommendations for Winter 2014 have just been released.  Many of the favorites return, a few drop off, and eight Apps debut on the list for the first time.  The basic criteria for inclusion are that the App be practical, useful for lawyers, easy to use, and among the best in class.  If you think there is a great App that we are overlooking, please let me know-  bill@hytechlawyer.com.  Enjoy!


Goodreader ($4.99 App Store)


One of the all time best selling non-Apple apps for iPad. This App allows you read and in most cases mark-up PDFs and many other varieties of documents. Also has a well designed document management system which permits multi-level document files (i.e., organizing documents by case/matter). Integrates well with Dropbox, email and many other applications. Aggressive development team constantly refines and updates the application. A must have for the serious iPad lawyer.

Documents To Go Premium ($ 16.99 App Store)

Docs togoAnother must have application for the serious iPad lawyer. Allows you to open, edit, save, email and create documents in the most popular word processing and spreadsheet applications to include MS Word, Excel, PowerPoint and WordPerfect. The “Swiss Army Knife” of iPad document apps.



Pages ($9.99 App Store)


Apple’s proprietary word processing program. Most robust word processing App for the iPad. Converts Word documents for editing and then can convert them back to Word or PDF. Documents created in Pages can be converted to MSWord or PDF and shared by various means. If you plan to draft documents on the iPad, you will want this App.




Digits ($. 99 App Store)  NEW RECOMMENDATION


Full function business calculator that keeps a running “register tape” of all inputs and results.  Customizable.  Great practical App.





SpiderOak (Free up to 2 GB App Store)

SpiderOakSpiderOak does everything that Dropbox does, and more, but is much more secure. Your files are encrypted and SpiderOak does not have a key. SO DON’T FORGET YOUR PASSWORD. To start out, you install the desktop app and select folders you want to backup. Once backed up, you can sync them to other computers/devices or create “Share Rooms” to share files with other users. Use SpiderOak for cloud storage (after 2 GB charges based on storage size), file transfers and collaboration with others. Last year SpiderOak introduced SpiderOak Hive that works just like Dropbox—only much more secure. In my opinion, a “must have” App.


dropboxIn some respects, Dropbox is a fantastic App. It allows cloud storage and sharing of files between computers, smart phones, iPads, you name it. With this App, you can make a file available to all your devices by moving it to the Dropbox on any of your other computers/devices. It  is incredibly easy to use.  The problem—there are lingering questions about the security of files stored in Dropbox and access to them. Further, the terms of service are such that Dropbox can pretty much do what it wants to with your files. In my opinion Dropbox is not suitable for storing or transferring confidential and/or privileged materials.  However, it is probably true that using Dropbox to simply transfer files, and then deleting the files from Dropbox post transfer presents minimal risk. I use it frequently for transferring nonconfidential files because it is easy and many applications are designed with Dropbox capability.


UPAD (4.99 App Store) (most natural handwriting and note taking)


UPAD allows you to use your iPad as a notepad for handwritten notes. I use it every day (with a stylus) in place of my yellow legal pad (although UPAD has yellow legal pad templates for those who wish to honor tradition). I have tested most of the popular handwriting Application (Penultimate (old #1 choice), Note Taker HD, Noteability, PaperDesk, PhatPad 7Notes HD Premium) and have found UPAD to be the easiest to use with the best file storage functionality and most natural writing feel.

Audio Note ($ 4.99 The App Store) (syncs audio with your handwritten or typed notes)

This is a particularly useful app that allows you to take handwritten or typed notes and audio record at the same time. The recording is synced with your notes. On playback select a word from your notes and the audio occurring at the time the note was taken is played back, with the corresponding text being highlighted. Great for witness interviews, depositions, meetings and classes. Caution:—remember the ethical issues related to recording others without their knowledge.

 Smart Writing Tool- 7Notes HD Premium (App Store 9.99) (Best handwriting to text conversion)

7Notes7Notes is reasonably capable at converting handwriting to text. This App has been updated multiple times and has evolved into a practical note-taking tool. My handwriting is horrific, yet 7Notes converts almost every word correctly. It does this by using a predictive language engine, which while generally accurate, struggles with proper names.

You have the option of having your text converted as you write, making corrections along the way, or converting to text later. In our testing, the text conversion was much more accurate in the “convert as you go” mode as compared to using the “convert later” feature.

7Notes allows for the exporting of documents by Email, DropBox (under the print function) or direct upload to Twitter or Facebook. Right now the export is in text, image, or PDF file formats, but the developer is reportedly working on an export to Word feature that could be useful. The App also integrates with Evernote with in App purchase. This integration was not tested.


Twisted Wave ($ 9.99 The App Store) (Best pure audio recorder)


Twisted wave is a professional quality audio recorder app that provides surprisingly clear sound recordings. It has an intuitive interface, which is easy to use and full of powerful exporting and editing features. Caution:—remember the ethical issues related to recording others without their knowledge.




 Air Display ($9.99 App Store)


In my office, I have a dual monitor set-up I find to be very useful. You purchase the iPad App and download the PC host software for free. When on the road, I carry my laptop PC and an iPad2. Air Display allows me to use my iPad as a dual monitor for my laptop over a common WiFi network or via an ad hoc network. You can have an extended screen (screen view) or a duplicate screen. The iPad functions as a touch screen for your Windows PC. This gives you the option of using your iPad as a remote control for your PC or vice versa.

The duplicate screen mode could be also be used to display documents to a witness in deposition prep. The Lawyer on the PC and the witness with the iPad.



Reflector ($12.99  PC/Mac Application)– NEW RECOMMENDATION

Reflector is an application that you install on your PC or Mac.  It allows you to use the Apple Airplay WiFi feature to mirror your iPad to your PC or Mac screen.  This in turn allows you to wirelessly present from your iPad by connecting the PC or Mac to a monitor or projector.  No need for an Apple TV.   Great for teachers and presenters who may need to move around while presenting.


Keynote ($ 9.99 The App Store)


Apple’s answer to PowerPoint for the iPad. You can create presentations from scratch on the iPad, but I have found it more practical to prepare presentations in PowerPoint and then email them to my iPad.  Keynote will convert PowerPoint presentations to Keynote, usually with only minimal tweaking required.  As you might expect from Apple, Keynote has some neat effects for transitions, etc.  If you want to spice up your presentation with animations, effects, cool transitions, and video/audio,  then Keynote is the App to use.


SlideShark  (Free.  The App Store) NEW RECOMMENDATION


SlideShark is the #1 selling app for showing PowerPoints from your iPad, iPhone or iPod touch the way it was meant to be seen – with animations, fonts, colors, graphics, videos & hyperlinks intact.  Not quite as full functioned as Keynote—more focused on hassle free conversion from PowerPoint than adding bells and whistles.



Trialpad ($89.99 The App Store)

trial pad

In my opinion, Trialpad is the best trial presentation application available for the iPad. It is also the most expensive (although cheap compared to the cost of preparing even one foam board exhibit). Trialpad allows you to organize documents and display them via a projector or monitor system. You can highlight, redact, mark, and enlarge documents on the fly. It also has the capability to organize and share video and has a whiteboard feature. Documents are transferred to the iPad via Dropbox, e-mail, or iTunes sync. Trialpad is intuitively designed and easy to use.

Exhibit A ($14.99 The App Store)

exhibit aExhibit A has been improved over the years. It has the basic trial presentation functions (callout, highlight, marker and laser pointer). If you are not willing to shell out the dollars for top in class TrialPad, then Exhibit A is distant second choice trial presentation App for the iPad.



Explain Everything ($ 2.99 The App Store)

explain EOriginally designed for educators, “Explain Everything” is an easy-to-use design, screencasting, and interactive whiteboard tool that lets you annotate, animate, narrate, import, and export almost anything to and from almost anywhere.

Create slides, draw in any color, add shapes, add text, and use a laser pointer. Rotate, move, scale, copy, paste, clone, and lock any object added to the stage. Add new or existing photos and videos. Import PDF, PPT, DOC, XLS, Keynote, Pages, Numbers, and RTF files from Evernote, Dropbox, Box, GDrive, WebDAV, Email, iTunes, and any app that allows you to open these files types using “Open In…”. Export MP4 movies, PDF documents, PNG images, or XPL project files directly from your iPad.

Explain Everything records on-screen drawing, annotation, object movement and captures audio via the iPad microphone. Import Photos, PDF, PPT, and Keynote from Dropbox, Evernote, Email, iPad photo roll and camera. Export MP4 movie files, PNG image files and share the .XPL project file with others for collaboration.

The potential uses for this app are only limited by your imagination. You can create an animation showing the direction of travel of automobile involved in an accident. You can import and crop photographs, add graphics such as arrows, shapes, etc. You can also introduce typewritten text or handwriting. In a nutshell, with the app, you can put most anything on the screen and manipulate it in real-time, while the same time recording it for later presentation in movie format. The animations can be displayed from the app or uploaded into Keynote or PowerPoint.


Timeline 3D ($19.99 App Store)

3d timeWhen it comes time present a time line or chronology, creating a compelling and comprehensible exhibit can be a challenge. Recently, I was consulted on a high dollar commercial dispute submitted to binding arbitration. The lawyers, being cutting edge types, wanted to use iPads in their presentation. There were about 200 key documents, and key dates were critical to the disputed issues. I recommended they use the Timeline 3D App for iPad to display their key dates and documents.




Fastcase HD (Free. The App Store)

fastcase - Copy - CopyFastcase HD is a free legal research application, putting the American law library in the palm of your hand. Fastcase contains cases and statutes from all 50 states and from the federal government. You can search by citation, keyword (in Boolean or natural language), or browse statute collections. You cannot print or copy in this free version, but great for on the fly research.



WestlawNext (Free, but need a WestlawNext account. The App Store)

WestAccess WestlawNext features including, WestSearch™, KeyCite™, Folders, History, document notes and highlighting, browse database content and more — all redesigned for the iPad multi-touch screen.





LawStack (Free. The App Store)

lawstack - Copy (2)LawStack is a portable rules library. It comes preloaded with :

  • US Constitution
  • Federal Rules of Civil Procedure
  • Federal Rules of Criminal Procedure
  • Federal Rules of Appellate Procedure
  • Federal Rules of Evidence
  • Federal Rules of Bankruptcy Procedure

You can buy additional references for a fee, e.g., USC Code.

FedCtRecords ($9.99 The App. Store)

fed ctThis application that allows you to easily navigate the Federal Court Pacer system on your iPad. The application allows you to select the court you are interested in from a menu. All you need is your Pacer ID and either the case name or civil action number. You can pull up all general Pacer information and filed documents. Documents can be viewed and emailed from the Application. Once entered a case can be stored for future menu shortcut access. This App is easy to use and well designed.


Scanner Pro by readdle (Free. The App. Store) NEW RECOMENDATION

scannerThere are numerous scanner applications for all the various operating systems. They essentially make your smart phone or tablet a mobile scanner.  My favorite is Scanner Pro by readdle.  With this app you can easily scan receipts, whiteboards, paper notes, or any multipage document. Scanned documents can be emailed and printed, uploaded to Dropbox, Google Drive and Evernote, or simply saved on the iPhone/iPad.

Business Card Scanning

CamCard  (Free. The App Store) NEW RECOMMENDATION

cad scan - Copy - CopyCamCard accurately scans and reads business cards and saves the contact information in your iPhone/iPad Contacts. It syncs all your cards across smartphones, tablets, computers and the web app.





Skype for iPad (Free. The App Store)

skypeThe iPad App for use with the popular video calling service Skype. Call, video call, or instant message anyone on Skype for free. Plus, you can purchase Skype Credit enabling you to call landlines and mobiles at really low rates.



GoToMeeting (Free App iPad Store—requires subscription)

gotomeeting - CopyThis is my favorite iPad application for video teleconferences. This is a subscription based service from Citrix. Very intuitive. Allows for control of the meeting to be transferred among the participants. Now possible to host a meeting from an iPad.




Teleprompt+ ($14.99. The App Store)

telepromptTeleprompt+ is a simple yet powerful professional grade teleprompter for the iPad. Perfect for speeches and presentations where you have a fixed script. You control the speed of the scrolling. Has a video/audio capture feature that records your presentation as you make it.





TripIt (Free. The App Store)

tripitAllows you to manage and share your travel itineraries. Upgrade available by subscription that provides real time flight change, travel advisory and gate information. However, the free version is very useful.




Whether for fun or for work, there are several iPad applications that allow the creative minded attorney to produce high quality photographs, videos, audio, slide presentations and art work that a few years ago would have required sophisticated equipment and help from experienced engineers and/or graphic artists. Here are a number of my current favorites I have used and can wholeheartedly recommend:

AutoStitch Panorama ($1.99.   The App Store)  NEW RECOMMENDATION

pnanAutoStitch is an amazing App that uses you high quality overlapping photographs to generate beautiful wide-angle panoramas with no visible seams.  Easy to use and you can share your creations by email, facebook or twitter. Truly amazing.



360 Panorama (App Store $ .99)—

This App is incredible– allows you to create an interactive 360 degree photograph with your iPhone or iPad. This could be an invaluable tool for mapping out an accident site or crime scene. You can see an example photograph of a cul-de-sac  I created in about five minutes using my iPhone. These images can be shared, flattened, etc.   One of the Apps I use when demonstrating the “amazing wonders” of the iPad/iPhone.

Video Downloader Pro (App Store- $ 3.99)

Allows you to capture download videos from the web and save in your iPad or iPhone photos folder. Once downloaded the video files can be edited in iMovie or Pinnacle Studio. I use the App to download copies of offending advertisements in my false advertising practice.

Snapseed (App. Store $ 4.99) –My favorite photo editing suite for iPhone and iPad. Allows the basic editing and enhancement of photographs and applying limited special effects. Easy to use and great for basic photo touch-up.

Lapse It (App Store – Free) –”Lapse It” is an award-winning full featured app for capturing amazing time lapse and stop motion videos (Available for iPhone, iPad and Android). It is easy, fast and intuitive. I have had lots of fun with this App, capturing cloud movements, traffic patterns, an ice cube melting, etc. Could be useful for a litigator seeking to demonstrate movement patterns over time.

Slo-Pro (App Store – Free) –SloPro captures footage at 720p 60fps, giving you twice as many HD frames to work with. You can toggle slow motion on and off while shooting for engaging fast/slow effects. You can also edit the fast/slow points after shooting. The app allows sharing directly to Facebook and YouTube. Upgrade to export to your camera roll and email. Pro users can also export raw 60fps footage via iTunes. This is great for capturing sporting events, analyzing golf swings and studying batting posture.

Pinnacle Studio (App Store– $12.99) –Pinnacle Studio is an intuitive video/audio App for the iPad. The app allows editing of audio and sound, transitions, titles and special effects. You can share your completed project directly to YouTube, Facebook and Dropbox. For video editing two separate audio tracks are available allowing for a music track and a voiceover track. I have used the App in my litigation practice to create quick and dirty deposition highlight reels.


Zite (Free The App Store). The App Store)  NEW RECOMMENDATION

Like Pandora but for news. Design your own magazine to suit your interests.  As the Wall Street Journal stated—”Great way to deal with information overload.”  I use it everyday.

feedly reader  (Free- The App Store).  The App Store)  NEW RECOMMENDATION–Feedly is a convenient and efficient way to browse and share the content of your favorite news sites, feeds, blogs and youtube channels. Instead of having to hunt down for news, feedly uses RSS to aggregate the contents of the news sites and blogs you like and deliver them as a fast mobile-optimized experience.  I also use this App everyday.



Tech Up Your Law Practice— ABA TECHSHOW MARCH 27-29, 2014

ABA TechShow Banner

The Annual ABA TECHSHOW will be held in Chicago at the Chicago Hilton, March 27-29, 2014.  This year there will be more than 50 educational sessions focused on the latest technology tools, tips, and strategies for lawyers who want to stay abreast of “what’s next” and use technology to deliver more efficient client service.  I am honored to be co-presenting two of the sessions this year.  In addition, there are large exhibit halls where you can actually see, touch and learn about the latest law tech in action.

I am also really looking forward to the presentation by this year’s keynote speaker Rick Klau.  Rick is a partner at Google Ventures where he helps lead Startup Lab. Rick was previously a product manager at Google where he led product initiatives on Blogger, Google, and YouTube. You don’t want to miss his presentation on Disruptive Tech: What’s New, What’s Coming, and How It Will Change Everything.  This is sure to be an eye opener.

Now is the best time to start planning your trip to ABA TECHSHOW while everything is at the lowest price:

•        Early Bird Registration – Sign up by February 10, 2014, to get up to a $200 discount.

•        Housing – Make your reservation online before all the rooms are gone.

•        Airfare – ABA Members receive discounted airfare through Orbitz for Business.

To register or for more information to http://www.techshow.com/

See you in Chicago!

First Steps in Case of Suspected Data Breach


Okay, the breaking glass part is for dramatic effect and is optional.  However, once the specter  of a data breach rears its ugly head, your company should  immediately retain experienced breach counsel before it hires cyber security and forensics firms to access the scope of the breach.  Why?  Because if the law firm truly directs and manages the internal investigation and any loss  mitigation efforts, the attorney-client privilege and protections of the work product doctrine should apply.  Given that litigation often follows a data breach, the ability to investigate with an  assurance of confidentiality will promote more candid communications with company personnel  and will allow the company to better control the flow of information and public relations  messaging.  If outside counsel are not directing the investigation and loss  mitigation efforts, the whole process will be discoverable in litigation and information may be  misconstrued or mischaracterized.

The rationale behind the attorney-client privilege is to encourage free and open communication between the client and his or her lawyer, thus promoting informed, effective representation. The privilege protects communications between a lawyer and a client, or an agent of either, that are made in confidence for the purpose of obtaining or providing legal advice for the client. There is a serious question as to whether the privilege applies in the case of in-house lawyers interviewing company employees.  Clearly, if no lawyer is involved in the communication, or if a third party is present when the communication is made, there is no privilege

In comparison, the work product doctrine protects an attorney’s mental impressions, opinions and legal conclusions from disclosure based on the rationale that an attorney should be afforded privacy to prepare her client’s case. Work product protection is provided to documents or tangible things, prepared by or for a party, and prepared in anticipation of litigation or for trial. See FED. R. CIV. P. 26(b)(3).  Unlike the attorney-client privilege, the work product doctrine confers a qualified privilege and if the opposing party can show compelling reasons that requested information should be produced, for example, if it is not available anywhere else, the court in its discretion may order production.

For the “hire counsel first” strategy to work, the law firm retained must be prepared to respond almost immediately and to hit the ground running.  Preferably, the firm will have the capability of fielding a rapid reaction team of experienced attorneys that can rapidly assess the situation, retain the appropriate experts from a pre-vetted panel, properly conduct an internal investigation and promptly provide cogent legal advice on damage control strategies.  Your prospective  breach counsel should be able to discuss up front a proposed plan of action (“POA”).  The POA will vary depending upon the circumstances, but might look something like this:

  1. Ensure data is no longer being actively compromised  (retain expert for determination as needed);
  2. If possible, physically secure the data systems, data and documentation
  3. Obtain high level overview of factual circumstances;
  4. Identify scope of breach if possible and type of data (e.g., financial, personal, medical, etc.);
  5. Retain appropriate forensic experts;
  6. Implement document and data retention plan;
  7. Conduct interviews with key personnel to determine circumstances of breach;
  8. Determine how the breach occurred and whether it was  accidental or malicious (inside or outside job);
  9. Assess security factors and improvements needed going forward;
  10. Retain public relations experts as appropriate;
  11. Assess legal and regulatory requirements;
  12. Determine if law enforcement, or other officials should be alerted;
  13. Provide detailed opinion to client on legal and regulatory obligations, as well as loss mitigation action plan;
  14. As appropriate retain data breach response firm;
  15. Provide hotline and on line information resources for affected personnel;
  16. As appropriate provide notification of breach to regulators, government and affected persons;
  17. As appropriate provide mitigation resources to affected persons (e.g., credit monitoring), and,
  18. Provide assessment of steps needed to avoid or reduce the risk of future data breaches.

The POA above is bare-bones and generic. The bottom line is that breach counsel should be retained soon as a potential breach is discovered, and that once retained should be prepared to immediately implement a plan of action agreed upon with the client.  If that plan is properly executed by the law firm, the protections of the attorney-client privilege and work product doctrine should apply to most of the investigation and mitigation efforts.  Preservation of the privilege could prove to be vitally important in future litigation.

Bill Latham is the self-proclaimed Hytech Lawyer. He is also partner in the law firm of Nelson Mullins Riley & Scarborough, LLP and is a Certified Information Privacy Professional (CIPP-US).

Don’t be that Luddite Lawyer


According to the Merriam-Webster online dictionary, the word Luddite describes “one of a group of early 19th century English workmen destroying laborsaving machinery as a protest [for fear of losing their jobs]; broadly: one who is opposed to especially techno­logical change.” Being an out of the closet technophile, I frequently en­counter self-described “luddite law­yers” who brag about their lack of technological prowess and that all they need to practice law is “their wits, a pen and a yellow legal pad.” When I hear such drivel, it brings to mind stories of 19th century doctors resisting hand washing protocols and basic operating room hygiene because they too were “old school.” Who wants to be a patient of a self-proclaimed luddite doctor? Like­wise, how can technological ignorance be an asset for a lawyer?

In the most recent changes to the ABA Model Rules of Professional conduct, lawyers are advised that to be professionally competent it is necessary to keep current on the benefits and risks associated with technology. This guidance is found Comment 8 to Model Rule 1.1, which addresses the duty to provide competent representation. Comment 8 states in pertinent part:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks asso­ciated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Id. (emphasis added).

What constitutes relevant technology is undefined and will no doubt vary depending up the practice area. Clearly, if you intend to represent clients in any sizable civil, criminal, bankruptcy or domestic litigation matter, an understanding of basic e-discovery principles is required to be an effective advocate. On the other hand, a small trusts and estates practice may have a lower technology bar to cross.

Savvy clients are also demanding their lawyers be technologically competent. One widely reported example is Casey Flaherty, in-house counsel at Kia Motors. Flaherty has developed a basic technology audit he administers to lawyers doing Kia’s work at outside law firms. He indicates that as a whole, his outside lawyers do not perform well on the initial test. This suggests to him that the lawyers are not using readily available technology to work efficiently. The take away: lawyers who fail to become technologically proficient are unlikely to get future Kia work.

With competitors like Legal Zoom, document review software, and so­phisticated document assembly programs taking ever larger shares of the legal service pie, lawyers will need to use technology advances just to hold their ground against tech heavy competitors. True, technol­ogy has and will displace some lawyers. Historically, however, ad­vancements in technology have largely benefited the human condition and improved life. For example, in 1900, 50% of the US population lived on farms and were employed in farming or farming related work. Contrast that with today where less than 2% of the population lives on farms and less than 4% of the population is employed in farm re­lated work. If you were a farm worker in 1900 and knew so many farm jobs would be lost in the upcoming century, you might be very afraid for the ensuing generations– “what will they do for a living?” As it turned out, such fear of widespread unemployment would have been unwarranted. As technology disrupts and destroys old economic systems, it creates new ones from the rubble. The trick is to recognize and adapt to the new normal.

Like farming in the 1900s, it is obvious that technology and economic efficiency pressures are transforming the way we practice law. Many legal futurists predict that in the near future there will likely be far few­er lawyers, working more efficiently and at a lower cost. Arguably, this a good thing for society and the profession, if not for us as individual lawyers living through the change. There will be winners and losers in the legal industry– those that can adapt to technological advances and innovate will thrive. Those that cannot will find employ­ment in a lower tech service field.

The good news is things are changing so fast on the legal technol­ogy front everyone is learning. A former luddite can jump into the deep end of the technology pool and with just a little effort  (meaning an investment of quality time) can get up to swimming speed with the techies fairly quickly. So come on in, the water is fine. Start with re­ally learning the useful features of your current software systems. Chances are your practice uses the Microsoft Office suite of software. You would likely be amazed how much more you can do with Outlook, Word, Excel, PowerPoint, Publisher, OneNote, Access, etc., than you do now. Move from there to really learn your practice management software. Look for areas of repetition that can be auto­mated. Look for interactive tutorials, CLEs, or even consider bringing in an outside consultant to teach a small group at your office. Hands on learning is most effective. Bottom line: Don’t be that luddite lawyer!

(The author thanks the Richland County Bar Association for granting permission to reprint this article from the November/December 2013 edition of the Richbar News).

Toys for the Hytech Lawyer—Your Personal Drone- Really! (Video)


For my 51st birthday, my wife and kids gave me a “hytech toy” that I now highly recommend tothose of  my tech savvy colleagues with some kid still left in them.  The Parrot AR Drone 2.0 Power Edition is an iPhone/iPad controlled quad-copter that is incredibly easy (and fun!) to fly and transmits HD video/photographs to your iPhone/iPad via Wi-Fi (the drone is the Wi-FI source).  You can record to video (but not sound) to your i-device or insert a thumb drive into the USB port of the drone for even better quality photos. The video quality of the Parrot is high enough that an enterprising lawyer could find it practical for taking an aerial view of an accident scene, inspecting the roof of a building, etc.  I have been asked by a local farmer to photograph his crop.  Possible tax deduction?  The Parrot also comes with an indoor shell that would permit it to be flown inside—but you better have a gym size room because this baby moves fast. The Parrot is not cheap at $ 369.00 (Brookstone) for the Power Edition.  This version comes with extra propellers in different colors and two long life batteries that go for 18 minutes each.    Make sure you get the 2.0 version as it is reportedly a signficant improvement over the original Parrot. The first video was taken on my second day with the Parrot—after about an hour of flight experience and I was doing flips and controlling the Parrot with confidence. One thing is definitely clear the Parrot can take a beating as I crashed it hard at least 10 times without more than minor scratches.   The next video depicts a high velocity fence crash that the Parrot survived relatively unscathed. Bottom line—this is a great toy to engage your inner kid and to play with your kids.  Highly Recommended.

The Hytech Lawyer Mourns the Loss of Steve Morrison


Steve Morrison was my teacher, mentor, law partner and friend.  Steve died yesterday morning at only 64 years of age.  It’s been less than 24 hours since we learned the news, but my law firm, Nelson Mullins Riley & Scarborough, already misses him terribly.  You see, Steve Morrison was never ordinary- no ordinary lawyer, no ordinary person, no ordinary partner, no ordinary friend. He was in every respect bigger than life.

To describe Steve Morrison as a talented trial lawyer is an extreme understatement. Steve’s ability to connect with the jury and judge bordered on the mystical. He was a lawyer called upon to try the most difficult and unwinnable cases – more often than not, he won them.   To prepare for trial with Steve was the best legal education that a young trial lawyer could have.  A few years ago, I was first chair on a difficult commercial case with large exposure. I asked Steve if he would consult with me on the case. In reality, Steve was too busy to do so, but characteristically he agreed anyway. This was a new dynamic for me (and for him) because previously Steve had always been lead in any case I worked on with him.  Steve was a gracious teacher, never undercutting my “role” in the case, but instead engaging me–  “What are your themes?”  “What will your jury care about?” “what is the right outcome and why?”   We had a mock trial in the case with Steve playing the role of opposing counsel–  Steve dominated with the mock jury as was typical.  However, I took comfort in the fact that our opposing counsel was no Steve Morrison.  This is just one example of the many times Steve Morrison mentored me.   I know Steve was just as generous with many of my colleagues, many of the law students he taught as an adjunct professor at the University of South Carolina School of Law, and with many others both inside and outside the profession.

Steve was not only a lawyer, but an activist.  He not only talked about doing the right thing and making a difference – he went out and did it.  Over his career, Steve invested thousands of hours in pro bono work advocating for the underdogs of our society, from poor school districts, to incarcerated youth, to the homeless.  Morrison was a man of action.  This boy from Michigan, embraced his new home of South Carolina, and in particular the city of Columbia, and determined to make them better—he did.  Steve was active in everything – the arts, education, and community welfare.  He dreamed of what Columbia and South Carolina could be – then put his shoulder into pushing in that direction. He left his adopted home a much better place than he found it.

As a law partner, year after year Steve was more often than not the most productive lawyer in the Firm. He asked much of himself, and much of his colleagues. He continually pushed us to be better.  He shared Claude Scarborough’s vision of a national firm, headquartered in South Carolina, but with influence throughout the world.  As a member of our Firm’s Executive Committee, he pushed us to dream– to dare to be great.  Steve Morrison was a key contributor to what this Firm has become and what it will be in the future.

Finally, Steve was a devoted friend.  Although he had reached a level of national prominence, he always had time to speak to you.  He treated the high and the mighty and the poorest among us as Christ would have us treat one another.  That is not to say that he suffered fools lightly—but Steve had a big, compassionate heart.  He was a giver and sharer.  The State newspaper has a wonderful tribute to Steve on the front page of today’s edition. The title refers to Steve as “a force of nature.”  That is so very true.  Steve—we will miss you, but your spirit will always be with us.  Thank you.  Rest in peace my friend.

Cloud Computing Basics for Lawyers (Niki Black Interview)


I recently had the privilege to interview one of the pioneers of the legal blogosphere, Niki Black.  Niki is Director of Business Development at MyCase, a cloud based law practice managment system.  She is combination cloud computing guru and legal technology cheerleader.  In this recorded slide show, Niki gives a basic overview of “the cloud” including ethics issues, security precautions, and advantages for lawyers.

ABA Editorial Niki is also the author of the ABA publication  “Cloud Computing for Lawyers”

Niki Book





Other Recommended resources:

This is the first in a series of interviews we plan to conduct with some of the interesting personalities in the law technology business.