August has been a big month for lawyer well-being! In a previous post, we reported on some comprehensive new recommendations for a variety of legal stakeholders created by the National Task Force on Lawyer Well-Being. Since their release, a number of news outlets, magazines, blogs and bars have taken notice, including: Official ABA Press Release: Growing […]
In Case You Missed It
In the August edition of bar news, the OSB announced that all passwords will be reset this fall. Lawyers, law librarians, and others who have access to the OSB member site will be required to create new passwords “that meet modern security standards.”
Since the PLF website uses the same login as the OSB, access to the PLF will also be affected.
Get More Information
The bar will post more information about the password reset on their website. An all-member email is expected to go out in mid-September.
What You Should Do Now
Nothing. Being aware of the change is enough at this point. Passwords cannot be updated in advance. When the member email goes out it will include directions on how and when to reset your password.
Beverly Michaelis 2017 All Rights Reserved
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 Judgment, Proskauer commercial litigation blog.
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
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.
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