About beverlym

As a law practice management consultant and educator, my goal is to help Oregon attorneys improve their office practices and procedures. With over 35 years in the profession, I possess the problem-solving skills to help you make your law practice more efficient, effective, and profitable. Learn more here: http://www.oregonlawpracticemanagement.org/about/. My complete biography can be viewed at http://www.linkedin.com/in/beverlymichaelis.

Preserving Mobile Data in Anticipation of Litigation

In a recent post, eDiscovery expert Craig Ball makes the case for routine preservation of data contained on mobile devices. I concur.

The tendency is to dismiss or ignore the degree to which we lean on our smartphones and tablets. We either assume the data is preserved elsewhere or we convince ourselves that mobile devices couldn’t possibly contain anything relevant or unique. Both beliefs are false. Craig’s post is a wakeup call for both law firms and their clients. Consider his key points:

  • Texting has overtaken email as a means of direct and candid communication. No competent business person would never send a letter or email without retaining a copy. The same standard should apply to text messages.
  • Mobile data is accessible and easy to backup using iTunes. (Yes, I know the interface deserves a Rotten Tomatoes score of 0%, but it does work.)
  • Preserving data does not mean it must be produced.

There is much more to this topic, and I encourage you to read the full post.

A Lesson for Lawyers

There is a takeaway for lawyers too. In Oregon, the “client file” includes text messages if they bear on the merits of a client’s position in the matter. This begs the question: are you preserving client texts? If not, look into Zipwhip, which I’ve discussed before. It has many advantages, not the least of which is the ability to save texts as PDFs to the client file.

All Rights Reserved 2017 Beverly Michaelis

Attorney-Client Privilege and Cloud Storage

Do your clients or their agents use cloud storage for case-related documents?  Do they transmit information using unsecured hyperlinks?

If the answer is yes, your client may have waived its claim of privilege to the stored information. This is the lesson learned in Harleysville, where a federal court in Virginia held that an insurance company waived the attorney-client privilege when the insurer’s investigator used an unsecured account to share claim-related information.

Key Facts in Harleysville

  • Insurer’s counsel knew or should have known that the information posted to the cloud account was publicly available because counsel had themselves used the unsecured hyperlink to access and download the claims file.
  • As a result, counsel “failed to take reasonable measures to ensure and maintain the document[s’] confidentiality, or to take prompt and reasonable steps to rectify the error.”
  • The court analogized the insurer’s actions to “leaving its claims file on a bench in the public square” and warned that if a company chooses to use a new technology, “it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information.”

Source: Don’t Let New Technology Cloud Your Legal JudgmentProskauer commercial litigation blog.

Lessons Learned

As Proskauer points out:

  • Attorneys and clients are responsible for their own technological choices as well as those of the client’s agents
  • Technological ignorance on the law firm’s part is no excuse

What You Should Do Now

  • Conduct a cyber security audit of your firm’s practices and systems.
  • Establish a secure system for confidential file sharing if one is not already in place. Address other issues uncovered during the security audit.
  • Create file sharing policies and procedures.
  • Train everyone now; conduct annual training sessions thereafter.  Address protocols for uploading and downloading files.  All law firm members – attorneys, staff, administration, bookkeeping – need to know the warning signs of receiving or forwarding content from unsecured hyperlinks.
  • Talk to clients about file storage and sharing practices.  Do they use agents, like the investigator in Harleysville?  If so, how do they exchange documents? Consider offering an on-site client training lunch to go over dos and don’ts.

All Rights Reserved 2017 Beverly Michaelis

 

 

Your Online Reputation

The July issue of the Oregon State Bar Bulletin features an excellent article by Linn Davis entitled “Responding to Negative Online Reviews: Reputation Management.”  If you’ve ever received a negative review, or fear that negative content is inevitable, this post is for you.

While Davis’ article focuses on ethical dos and don’ts, it also contains solid practical advice.  The following excerpt describes what you cannot do, what you should not do, how to preempt negative reviews, and how to respond to a negative review. Also included are my two cents on best practice recommendations.

What You Cannot Do

  • Reveal information relating to the representation of a client
  • Post inaccurate content
  • Allow misleading information that creates false expectations regarding fees, results, or your firm’s resources
  • Use subterfuge (employees posing as satisfied clients offering glowing reviews)
  • Fail to promptly update information when it changes
  • Engage in real-time interactions that violate in-person solicitation rules

What You Should Not Do

  • Sue the source of the negative review for defamation
  • Attempt to restrict clients from posting negative reviews
  • Form an unintended attorney-client relationship in an online legal forum
  • Fail to screen for conflicts in an online legal forum
  • Offer incentives for a positive review without considering the ethical and legal implications. See Oregon RPC 1.8(a), and 16 CFR Part 255 relating to FTC regulation of endorsements.

How to Preempt Negative Reviews

  • Contribute accurate and valuable information regarding yourself and your firm
  • Use disclaimers when participating in online legal forums
  • Provide clients with professional and competent work product

How to Respond to a Negative Review

One possibility is to do nothing.  As Davis points out, “not every opinion (on the Internet) must be contested.”  If, however, you feel you must respond, Davis offers three ethically permissible approaches:

  • Encourage the client to contact you to resolve the concerns expressed (this could be done online or offline)
  • Post that you disagree with the client’s account but are prevented by your professional standards from responding in a public forum without the client’s consent
  • Direct readers to other forums where your representation is regarded more “fully, accurately, and favorably”

Best Practices – My Two Cents

If the negative review comes from a client:

Your best tactic is to encourage the client to contact you. I suggest doing this privately and leaving the online post alone.  Why?  Responding to a negative review in any fashion will cause it to rank higher in search results.  Remember: search engines use algorithms based on quantity and quality. The more online engagement surrounding a negative thread, the more prominent it will become.

The good news is that you can exploit the quantity/quality preference of search engines by contributing your own accurate and valuable information.  In addition to Davis’ suggestions about adding basic biographical data and a description of your services, list yourself on free online legal directories, blog, update your Website, post to social media, share photos, and reshare/repost content.  It will take time and effort, but your content can and will push the negative review below the first page of search results.

If the negative review comes from a non-client:

I’ve known many lawyers who received negative “reviews” from non-clients – either disgruntled opposing parties or those who are motivated to attack the lawyer because of her practice area or representation of a particular client. Examples include immigration law, debt collection, or defending a client accused of a crime. Other than overwhelming the negative review with your own positive content, there isn’t much you can do when a non-client complains. Responding will only spur on the commentor.

Parting Thoughts

While it is important to monitor what people are saying about you online, try to have a thick skin. I know that negative reviews can be hurtful and maddening – especially when the source is motivated to keep attacking.  However, and pardon my French, but most of us can spot a “whack job.” Therefore, if a potential client decides not to meet with you because of what he sees or reads on the Internet, it’s probably a good thing.

All Rights Reserved Beverly Michaelis 2017

End of the Line for Viivo Encryption

In late June, PKWARE announced the end of life for Viivo encryption.  If you’ve relied on Viivo to protect your files in Dropbox or elsewhere on the Web, you need to find another encryption solution sooner rather than later.

How Long Will Support Continue?

Users of the free and commercial versions of Viivo will have one year of support.

What Does Viivo Recommend?

While Viivo can be used after the service is shutdown, the company does not recommend this. All customers should move to another encryption solution.

How Long Do I Have to Act?

Viivo service will remain online until July 1st, 2018.  (But don’t wait until next year to tackle this issue!)

Next Steps

  1. Research and select another encryption solution (see below).
  2. Backup all files currently protected by Viivo.
  3. Decrypt all files currently protected by Viivo (the Website has step-by-step guides that walk you through the process).
  4. Implement the new encryption solution.
  5. Review your credit card statement.  If you have a paid Pro or Business subscription, your payment processing should have been suspended automatically.

Alternatives to Viivo

If you really like Dropbox and don’t want to switch, finding another cloud-based encryption service to fill the gap is imperative. BoxCryptor and Sookasa are two options. Sadly, CloudFogger and TrueCrypt are no more.

All Rights Reserved 2017 Beverly Michaelis