Legal News and Upcoming Events

Is Mandatory Malpractice Coverage Coming to Washington?

Mandatory malpractice coverage is well known by Oregon lawyers and may be coming soon to members of the Washington bar (WSBA).

In July, the WSBA Mandatory Malpractice Insurance Task Force presented a tentative recommendation to the Board of Governors (BOG) to mandate malpractice insurance for Washington-licensed lawyers. The task force expects to present a final report to the BOG in four short months.

Next steps include:

  1. Considering feedback from the Board of Governors;
  2. Ramping up information efforts among WSBA members, and obtaining and considering additional comments received;
  3. Detailing the recommended malpractice insurance mandate, including the specific
    required coverage minimums;
  4. Identifying in detail the recommended exemptions from the professional liability
    insurance requirement; and
  5. Drafting a proposed Court Rule for the Board of Governor’s consideration

Members may submit comments to insurancetaskforce@wsba.org. The task force continues to meet monthly through the end of the year. Read the interim report here.

Free Access to PACER

This past week, the ABA Journal reported a potential end to PACER fees:

A new bill before the U.S House of Representatives would prohibit the federal courts from charging for public documents. The Electronic Court Records Reform Act would require that documents downloaded from the PACER database be free. Currently, the repository for federal court documents charges up to 10 cents a page.

The article notes that PACER has become a reliable money-maker for federal courts, pulling in $150 million in fees in 2015 alone.

Of further interest to federal court practitioners, the proposed bill would require documents to be posted to PACER within five days of being filed in federal court in a manner that allows for easy searching and linking from external websites.

Additionally, it would require consolidation of the Case Management/Electronic Case Files (CM/ECF) system, allowing for one-stop shopping when searching for federal court cases. Presently, each court operates its own separate CM/ECF system.

Free Data Breach CLEs in Bend and Medford

The Professional Liability Fund is offering two free data breach CLES in October:

These CLEs will explain data breach, what you can do to protect your client’s information, your ethical duties, and what to do if a breach occurs. For more information, follow the links above. Register for the Bend CLE by emailing DeAnna Shields at deannas@osbplf.org. Register for the Medford CLE by emailing Eric B. Mitton at eric.mitton@cityofmedford.org.

All Rights Reserved – 2018 – Beverly Michaelis

Focus on Security – More from the 2018 ABA TECHSHOW

We all know that securing our law firms and protecting client information is our ethical duty. Thus, the continuing focus on security at this year’s ABA TECHSHOW.

Among the topics:

Of course, there were the usual reminders: don’t use unsecured WiFi, don’t click without thinking, watch out for keyloggers when using public computers, and use strong (and unique) pass phrases for all accounts.

Even so, reminders don’t hurt.  And we need to stay on top of trends like how to secure your phone when traveling or Internet-connected printers, TVs, baby monitors, or appliances that may be spying on us.

So get a cup of coffee or tea, and take five with me.  Check out these “best of” summaries of what the experts at TECHSHOW shared:

For more summaries of 2018 ABA TECHSHOW tips, advice, apps, websites, and other useful resources for lawyers, see my main Wakelet page.

All Rights Reserved 2018 Beverly Michaelis

A New Ethics Standard for Client Email?

A long time ago, in a galaxy far, far away the ABA issued Formal Ethics Opinion 99-413, the gist of which was to give law firms a free pass when it came to email encryption. Since 1999, technology has evolved by leaps and bounds, the ABA has updated its model rules, and cybersecurity is a national concern.  Therefore, it should be no surprise the ABA chose to revisit its 18 year-old position on email and electronic communications.

The New ABA Standard

Is email encryption required by the new ABA opinion?  Yes and no.

As Bob Ambrogi reports in his blog:

In this new opinion, the committee declined to draw a bright line as to when encryption is required or as to the other security measures lawyers should take. Instead, the committee recommended that lawyers undergo a “fact-based analysis” that includes evaluating factors such as:

  • The sensitivity of the information.
  • The likelihood of disclosure if additional safeguards are not employed.
  • The cost of employing additional safeguards.
  • The difficulty of implementing the safeguards.
  • The extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

However, special security precautions may be required “to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.” ABA Formal Opinion 477.

The Oregon Standard

The last bit of ABA Formal Opinion 477 may sound familiar to Oregon lawyers.  In this article written by Helen Hierschbiel in 2010, the bar gave us some insight on the topic of electronic communications, including email:

Although use of electronic communications is not a per se violation of the duty of confidentiality, special precautions may be necessary in particular circumstances. For example, if information is particularly sensitive or subject to a confidentiality agreement, a lawyer may need to implement special security measures. Also, if a client requests it, a lawyer may be required to avoid, or be allowed to use, a particular type of electronic communication notwithstanding expectations of privacy in the communication method.

While the article cites to a model rule that was later amended, the parallels between Hierschbiel’s language and that of the new opinion are hard to miss.  Bottom line? Email encryption is required if the circumstances warrant it.

Choosing an Email Encryption App

Fortunately, Bob Ambrogi has come to our rescue yet again.  In his article, Encryption so Easy a Lawyer Can Do It, Bob discusses three incredibly simple solutions that allow lawyers to send encrypted messages.  No more clunky interface requiring the sender to transmit keys before the recipient decrypts the message.  No more need for both parties to use the same software.  (Although a simple plug-in may be needed, depending on the software you choose.)

With secure cloud-based solutions Enlocked, Virtru, or Delivery Trust, Ambrogi concludes:

What all three programs have in common is that they make encryption as easy as the push of a button.  If you use email to communicate with clients or colleagues about sensitive matters – and what lawyer does not? – you have no excuse not to encrypt.

What To Do Next

  • Encrypt all client email, not some client email.  Why?  Mainly to eliminate guesswork, reduce risk, and preserve your sanity.  Not convinced?  Consider how clients might view on again/off again encryption: some messages are worth protecting and other’s aren’t?  Hmmm….
  • Put sensitive content behind a secure client portal.  Many practice management programs have this functionality, but if yours doesn’t, consider Slack.
  • Discuss electronic communication policies with clients and reiterate them in your fee agreement or engagement letter.

All Rights Reserved Beverly Michaelis 2017

The Best Legal Blog Posts of 2016

2016-word-cloudIf you’ve followed my blog for a year or more, you know I generally publish a “Year in Review” post.  This December I thought I’d take a slightly different approach. Instead of a comprehensive list, I’m filtering it down to my personal favorites. And while it may be controversial, I’m calling this compilation The Best Legal Blog Posts of 2016.  There is plenty of good stuff out there, but this is the best that has appeared here.  Mostly my content, but also sourced from other great writers.

Client Relations

eCourt and court procedures

Finances

Marketing

Security

Staffing

Technology

Time Management

All Rights Reserved 2016 Beverly Michaelis