e-Discovery Insights

The Mobile Lawyer & Professional Responsibility: Friday in Long Beach

Just a quick reminder that I'm presenting Program #19 at the Calbar Solo and Small Firm Summit in Long Beach, California:

The Mobile Lawyer & Professional Responsibility: Confidentiality in the Digital Age

Friday, June 21, 2013  1:15 p.m.-2:15 p.m.

Lawyers are open for business 24-hours a day.  They communicate via Twitter & Facebook, on smartphones, tablets & notebooks – in coffee shops, taxicabs, airports and on airplanes.  This program reviews recent COPRAC opinions addressing technology and provides tools to protect confidences and privacy for both attorney and client.

It's not too late to register and join us!

Did Mikey Like the New, Improved LTWC 2013? Day One...

I've just returned from day one of Legaltech West Coast.  I'd hoped to attend both days this year because my Calbar LPMT colleague, Andy Serwin, presented the keynote this morning,  Alas, it wasn't meant to be...

Leading up to the conference, the meme was that this is the new, improved LTWC with the addition of, "The California Lawyers' Track".  Makes sense.  Depending on which statistic you consult, approximately 20-25% of the lawyers in the United States reside in California.  So, how did all this measure up to their most hard-to-impress critic, Mikey?

(It's me...it's me...I'm talking about ME!)

First of all, it not only makes sense, it's smart.  I'm the first one to admit that virtually all of the programs I present contain at least 50% Ethics content - not only because it's great as far as addressing educational issues that attorneys need to know -  but also because Calbar has a mandatory requirement that California attorneys attain four hours of specialty credit in Ethics every three years.  The specialty credits are notoriously hard to come by and it always results in higher attendance at my events.  I'm sure the gurus at LegalTech understand this factoid.  They also worked in our other specialty credit requirements: Bias & Substance Abuse.  However, three out of the four were presented on the final day (incentive to entice California attendees to stick around for day two, LegalTech?  Well played...)

If you attended all specialty sessions over two days, you'd satisfy one-hour Bias, one-hour Substance Abuse and two-hours Ethics.  That's four out of a total of six hours required!

Advantage:  LegalTech

Ok, great; the potential is there.  But none of that matters if the programs aren't substantive.  Were they?  If you've been reading me for a while, you know I don't dole out compliments much, but I have to say that I found the content of the three sessions I attended to be excellent; and the final session of the day may have been the best I've ever attended at any conference.

Unfortunately, I was unable to get there early enough to see the keynote speaker, D. Casey Flaherty (and I regretted missing him even more after attending his program in the final session of the day - see below), so I started with "A Panel of Experts: A Candid Conversation".  Judges Jay Ghandi and Suzanne Segal (no relation) discussed the challenges brought by eDiscovery.  If you follow my Twitter feed, you saw the money quote from that session.

Mid-day, I went another direction.  Owen Byrd from Lex Machina was presenting on his article, "Moneyball for Lawyers: How Data and Analytics are Transforming the Practice of Law".  This was also the title of an article Owen wrote for our LPMT Committee publication, "the Bottom Line", which will be published in a week or two.  He showed us how they're using data in whole new ways to give attorneys every advantage in a case.

To end the day, it was back to the judges (or so I thought) with, "Judges' Panel: The Current State of the ED Market".  At first, I was disappointed because the "judges'" panel had only one judge, presenting via Skype.  That ended up working out just fine.  The live panel included one big firm eDiscovery attorney and the aforementioned Casey Flaherty, Corporate Counsel for Kia Motors America.  Here's the deal.  Mr. Flaherty walked us through the painstaking process he followed to procure the best eDiscovery vendors for Kia that he could find.  What did I think?  Read my assessment at the LexisNexis "Matters of Practice" Blog.

Well, that's a wrap for this year.  See you next year at LTWC 2014!

Calbar Looking at Limited Law Licenses: It's all about Standards

An article in the February 2013 issue of the California Bar Journal states that the Calbar Board of Trustees is examining the possibility of creating a class of "limited-practice licensed" individuals.  Among the reasons provided as the catalyst (e.g. lower cost to consumers, path to eventual Bar passage), ostensibly, the Board also believes this would circumvent instances of unauthorized practice of law (UPL).  UPL (Rule 1-300) falls outside of the Bar's jurisdiction and is normally addressed as a misdemeanor charge via a criminal complaint.

A form of certification already exists within the Bar (or at least, it used to), called "Certified Law Clerk".  I know it well because I was one when I worked at the L.A. County D.A.'s Office during law school.  From memory, some of the criteria to be certified included being a 3L and having already passed the Evidence course, among other things.  Certification allowed me to perform more duties than a standard law clerk.  Obviously, I see some benefit to the idea.

However, I also see detriment, and the first one that comes to mind is expectations.  What level of expertise will a client of this class of legal professional believe they are - or should be - receiving?  Who will guard the line between limited-practice and unlimited practice to ensure that the provider doesn't cross it?  Who is at fault if the provider doesn't meet the standards the client believes they should meet?

Is a new tort called "Limited-Malpractice" going to spring out of this plan?  Will it ultimately 'dilute the brand' of what being a lawyer means?

Considering that I'm Chair of the Law Practice Management and Technology Section Executive Committee, if this new class is ultimately created, my Excom will likely be front and center during the implementation process.

Either way, I'll say this; the Board has their work cut out for them!

Calbar Formal Opinion Interim No. 10-0001 (Social Media/Attorney Advertising) is Now Formal Opinion CAL 2012-186

Happy New Year!  Some of you may recall when I wrote about this proposed opinion back in early June.  It addresses when a social media post by an attorney might cross the line from a statement to an advertisement, thereby triggering additional state bar rules.  In late December, apparently with little fanfare, the opinion was formalized as CAL 2012-186.

AB 2073: eFiling Requirements for Orange County, California Superior Court - Effective 01-01-13

Happy New Year, All!  I've been taking a little bit of a break from blogging, combing social media, etc.  However, this tidbit on AB 2073 crossed my path yesterday.  I'm posting the information verbatim from the Orange County Superior Court website:

PUBLIC EFILING NOTICES:  Effective January 1, 2013, pursuant to amendments to Code of Civil Procedure section 1010.6 and Orange County, California Superior Court Rule 352, all documents filed in limited, unlimited, and complex civil actions must be filed electronically unless the Court rules otherwise. After January 1, 2013 any document that is electronically filed with the court after the close of business shall be deemed to have been filed on the next court day. “Close of business” means the time at which the court no longer accepts filings at the court’s filing counter (e.g., 4:00 P.M.). Although not ready for immediate implementation, the court is working towards extending the electronic ‘filing window’ to midnight, at which point all documents filed before midnight on a court day will deemed to have been filed on that court day, and documents electronically filed on or after midnight will be deemed filed on the next court day.

eDiscovery California: USDC - Northern District of California - Publishes New ESI Guidelines

This news is so important to me - and most likely, to you as well - that I actually dropped what I was working on so I could bring it to you asap!  I wanted to make sure you're aware of the implementation of these new ESI guidelines, which took effect yesterday.  Here's the press release, and here's a direct link to the guidelines page which includes a checklist and model stipulated order.

CalBar Board Committee of Member Oversight Clarifies Definition of Acceptable MCLE

As I wrote on July 24th, 2012:

"The State Bar of California Board Committee on Member Oversight seeks to amend the definition of what qualifies for proper MCLE credit in the state of California.  Apparently, some confusion has arisen regarding whether CLE programs may only contain substantive law versus whether they may encompass other ares of law practice and/or law practice management."

On November 15th, 2012, the Board of Member Oversight voted to amend the education standards in MCLE rules 2.52(A) and 3.601(A), effective January 1st, 2013.  To be specific, they voted to change one word, as illustrated below:

“The activity must relate to legal subjects directly relevant to members of the State Bar and or have significant current professional and practical content.”

This is great news for MCLE providers in the State of California - and my Law Practice Management and Technology Section, specifically - because effective January 1st, 2013, we may provide to you, State Bar membership at large and the public:

• Topics related to business or financial management of a law firm;
• Topics related to law office operation, including but not limited to facilities, staffing, systems and equipment;
• Topics related to creation and improvement of legal case work and work flow management, including time management of attorneys and support staff, and delegation of responsibility;
• Topics related to the competent delivery of legal services and/or the establishment and maintenance of effective law office management;
• Topics related to communications by and between attorneys and support staff
• Topics related to the use of computer and/or Internet technology in the practice of law or the management of a law office.
• Topics related to the lawful and ethical management of a law office’s financial accounts including client trust accounts.
• Topics relating to lawful and ethical client fee agreements, fee sharing and referral arrangements.

My favorite is highlighted; considering this is a law technology blog, of course.  It's a win-win for all concerned.

eDiscovery California: Social Media Laws Take Effect Jan. 1, 2013

Welcome back, all.  I hope you had a nice holiday and are fully rested so that you may now spend the rest of the season...at the mall!  We're getting close to the New Year and as is true each time we approach January 1st, we have a bunch of new laws taking effect.  California employers and post-secondary institutions should take note of two of them; AB 1844 and SB 1349.  Both were signed into law by Gov. Jerry Brown back on September 27th, 2012.

Although the language in each bill is different, essentially, AB 1844 prevents employers (also potential employers) from demanding, using or exploiting an employee's (or potential applicant's) social media passwords and information.

SB 1349 is substantially similar, except that it applies to post-secondary institutions; both public and private.

There is speculation in the media about the necessity of these types of regulations.  Many believe that a substantial risk of invasion of privacy doesn't exist.  Maybe not; but moving forward, I believe the risk will increase exponentially.

What's next - bionic mannequins???

#CalBarAM12: From Hash Tag to App!

If you're attending the State Bar of California 85th Annual Meeting this week in Monterey - or want to stay abreast of the action (because as you know, lawyers are synonymous with action...) there's an app for that.  Available for both Apple and Android devices, you can monitor the #CalBarAM12 hash tag on the fly, organize your meeting/CLE/reception calendar, find maps to various meeting locations and the city itself, share contacts dynamically and a whole lot more!

Folks, the Bar's effort here is truly impressive.  I'm very proud of my colleagues who made this happen.  Plus, the LPMT Section's Social Media SubCommittee gets a little credit as well - we named it and also created the companion hash tag.

Soon, our Section will release our own app, so stay tuned for that announcement as well.  In the meantime, safe travels!

eDiscovery California: Upcoming Presentations: CalBar 85th Annual Mtg

Why have I been missing in action the past couple of weeks?  Because I over-committed, that's why!  Note to self: Don't propose two presentations for the CalBar 85th Annual Meeting, thinking that only one will be selected...WRONG!!!  So, to kick-off my re-appearance on this blawg, here are my two upcoming presentations in Monterey:

eDiscovery eVolution: Crawl, Walk, then Run Your Case!  (Program 25)

Thursday, October 11, 2012  4:15 p.m.-5:15 p.m.

Strategy matters, and litigation is a term of art and a little showmanship. Learn how to strategize during a case to get the most out of each other for the clients' benefit.

Presenters:  Perry L. Segal, Derick Roselli

CLE: 1.0 Hour General Credit

This is going to be a good one, because I'm taking the role of attorney (type-casting) and my LPMT colleague, Derick Roselli, takes the role of technology expert; which is his true specialty at HP/Autonomy.  We're going to do a walk-through of a case from the perspective of the attorney consulting with his expert on a case, from start to finish.

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The Cloud: Secure? Yes. Ethical? Not so FAST!  (Program 50)

Friday, October 12, 2012  10:30 a.m.-12 noon

It's essential to conduct due diligence regarding a vendor's security practices to insure the confidentiality of client data. Even if the data is believed to be secure, it may violate an attorney's legal/ethical obligations. Learn the next step-- assuring client communications are secure and ethical.

Presenters, Perry L. Segal, Donna Seyle

CLE: 1.5 Hours of Which 1.0 Hour Applies to Legal Ethics

Donna Seyle is another of my LPMT colleagues, and we're going to do a practical examination of attorney ethics rules - both ABA and California - as they pertain to data and social media interaction in the cloud.  Our goal is to explain to attorneys how even a secure cloud may violate ethical obligations to the client if additional precautions are not followed.

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I 'officially' assume the Chairmanship of LPMT at noon, Sunday, October 14th.  Here we go!