Ethics of Disaster Recovery and Data Breaches

Coming December 10 at 1:00 pm Eastern, 10:00 am Pacific – a lawyer’s ethical duties in responding to disasters and data breaches. Featuring ABA Formal Opinion 483: Lawyers’ Obligations After an Electronic Data Breach or Cyberattack and Formal Opinion 482: Ethical Obligations Related to Disasters (2018).

This session will offer real-life examples on how to recover from a disaster or a data breach — ethically.

Disasters and data breaches bring with them conflicting priorities to resolve. Duties of disclosure compete with those of confidentiality for your attention. The responsibility to provide legal services for which your clients have contracted may be adversely affected by disaster. Model Rules 1.4 and 1.6 provide the standards and the recent ABA opinions flesh out your ethical duties in the event of a disaster (natural or man-made) or a data breach (which is of course a very specific form of a disaster!).

Join our panel of experts as they guide you through these opinions with practical examples of how best to ensure you and your clients are protected in the face of this new world and all it has to throw at you.

This is a free CLE for ABA members. Register here.

All Rights Reserved 2019 Beverly Michaelis

Coping with Holiday Stress

You may feel there’s nothing you can do about stress. The bills won’t stop coming, there will never be more hours in the day, and your work and family responsibilities will always be demanding. However, you have more control over stress than you might think. No matter how stressful your life seems, you can take steps to relieve the pressure and regain balance.

How? By using the four A’s: avoid, alter, adapt, or accept.

For specific advice on how to cope with holiday expectations and holiday-related stress, review these articles from the Oregon Attorney Assistance Program:

All Rights Reserved 2019 Beverly Michaelis

Capture Text Messages for Use in Court

A reader recently asked for an app to capture text messages – a very understandable request. Here are some DIY options to consider.

Screenshot Method

Most everyone is familiar with this irritating and incomplete approach, which involves taking partial images of texts that end up overlapping. Screenshots are a pain, often lack date and time stamps, don’t capture contact information or other metadata, and must be combined somehow to form a PDF. Not a great way to go. Next, please.

Decipher TextMessage and Tansee for iOS

The Decipher TextMessage app uses five simple steps to capture text messages for export to PDF. Unlike the screenshot method, it automatically grabs date and time stamps, attachments, and accurate contact information for senders and recipients. It can also recover deleted conversations.

Decipher TextMessage is $29.99 and uses the iTunes interface. If you’re dubious about spending thirty bucks sight unseen, take advantage of the free trial, but this app has a lot going for it. Read more about Decipher TextMessage here.

Tansee iPhone Transfer SMS is another great DIY solution at the same price point for a three-year license. It uses its own proprietary software installed on your desktop rather than iTunes.

The clean printout rendered by (Tansee) allows for a seamless production. (Users can) Bates-stamp each PDF page and produce the thread in one comprehensive file, rather than in disjointed screenshot images pieced together in an unorganized manner. Use of this software allows for a more efficient in-house review process, as well as a more transparent production set to opposing counsel.

A disadvantage of this software is that it does not retain the actual native file, merely an organized photocopy with some of the relevant metadata attached to each message.

Cell Phone Extraction for the Small Firm.

SMS Backup+ for Android

SMS Backup+ is a free app in the Google Play Store that allows users to store texts in a gmail account. Conversations can be printed to PDF using a web browser. Sounds simple enough, but since this is a backup program it can only capture what is presently stored on a phone. There is no mechanism to restore deleted conversations. Another downside: reviewers say the app is buggy. However, as one noted: “I tried other SMS Backup apps, but they are not the same or as good! This app is significantly better (in my opinion).”

Other Options

For other print-to-PDF choices consider:

iOS

Print Utility Lite, Xerox Print Portal, To Print, Mobikin or iPhone Backup Extractor.

Android

Mobile PrintShare, Printhand Mobile, or Mobikin.

Evidentiary Concerns

The evidentiary concerns surrounding use of text messages are substantial. As mentioned, accurate date and time stamps and true identities of senders and recipients are critical. Capturing location data, attachments, and special characters can be troublesome. See How to Print Text Messages for Use as Evidence.

As this post points out, before extracting evidence from smart devices consider employing expert forensic help – not just to get it right, but to secure an independent witness if authenticity isn’t stipulated.

All rights reserved 2019 Beverly Michaelis

On Demand CLE – Need Credits?

If you missed the recent live CLEs “Abandoned Funds: Trust Account Dilemmas” or “Getting Paid,” don’t worry! You can order both online.

These offerings, along with other programs, are accredited by the Oregon State Bar and available on demand. Check out the complete list below.

NEW TO ON DEMAND CLE in 2019

CURRENT CLE

Cost

All programs are $25. Every on demand CLE purchase includes: MP4 download (combined audio and video file); M4a download (audio only); written program materials, including presentation slides and resources; answers to polling questions asked during the live CLE; and MCLE Form 6 to track individual screening of programs. To obtain credit, add the screening activity to your OSB MCLE transcript online.

All Rights Reserved 2019 – Beverly Michaelis

Tiplet: Bank Holds on IOLTA Deposits

Most lawyers are aware that funds held in trust cannot be disbursed until they are fully cleared. Deposits submitted electronically or by wire speed up the process, as does cash. Credit card payments are generally settled and in your account within one to three business days. Checks are usually the slowest to process and are not “cleared” until they are collected and paid by the issuing bank, even if the lawyer’s bank has a policy of making funds available in a shorter period of time. See Sylvia Stevens, Waiting for ‘Go’ Dough: A primer on disbursing client funds, OSB Bulletin 21 (June 2006).

The Professional Liability Fund recommends:

For an ordinary transaction with an established client or known third party, wait three banking days for locally written checks, five banking days for checks written within Oregon, but outside your local area, and ten or more banking days for out-of-state checks. Note, that checks for
$5,000 and over may be held by banks for seven banking days, whether drawn on a local, instate, or out-of-state bank, therefore allow sufficient time for these checks.

To avoid the growing problem of check scams, wait at least ten banking days before disbursing funds in the following circumstances: (1) the transaction is with a new client or a client you are unsure about; (2) the check is very large; (especially compared with the extent of legal services
provided, if the check is a retainer); (3) the check is from an unknown third party; or (4) any aspect of the transaction raises (or should raise) your suspicions. Remember that drafts or other instruments may take longer than ten days to process. To verify that funds have been collected, ask your bank to contact the issuing bank.

Source: “Frequently Asked Trust Account Questions.” From the PLF website, select Practice Management > Forms > Trust Accounting.

How to shorten bank holds

When are holds applied?

Holds may be applied by your local branch at the time of deposit or overnight during processing. Since checks over $5,000 are the most likely to present problems, review your accounts carefully. If in doubt, contact your bank.

 

All Rights Reserved 2019 Beverly Michaelis