January 2013 | Volume 14, Number 1

Continued on page 3

Market pressures in today’s competitive environment are beginning to pique more attorneys’ interests in the significance of data and information. Because of this new reality, attorneys are seeking more effective ways to plan for, execute, and manage legal work. In each of these areas, data usage can help practitioners meet new business challenges, engage their clients, enhance service delivery, and expand their practice. Further, each of these areas is a “hook” by which you can capture support, and create attorney advocates for data and information usage. With some encouragement and subtle positioning, the most classic lawyer can now become a champion of the use of data and information.

The term “raw data” smacks of a topic that attorneys went to law school to avoid. Having worked with a large number of attorneys, I can confidently say that data and processed data, more commonly known as “information,” are not concepts that enamor the typical practitioner. Instead, the traditional notion of attorneys is that those concepts are too attenuated

from the practice of law to matter to them. Or, if data and information do matter, they are someone else’s concern.

However, because of a myriad of factors, the significance of data and information is beginning to pique more attorneys’ interests. And, with some

encouragement and subtle positioning, the most classic lawyer can now become a champion of the use of data and information.

In 2005, at even the most progressive firms, it would have been difficult for anyone to provide guidance in this area. Most engagements were billed by the hour. Work was plentiful. The practice of law was fairly insulated from outside threats. And so on. The prevailing theme was, “Why fix what isn’t broken?” Generally, data did not matter—or at least not to the extent it should have. But that was then. The last eight years have shaken the legal industry in significant ways, and market pressures now impact individual attorneys and law firm strategies in a tangible manner.

Competition within the market is fiercer than ever, and new variables have entered the equation. Fixed fees, alternative business structures, reverse auctions, and legal process outsources are no longer theoretical concerns. Because of this new

By Andrew M. Baker, Director of Legal Technology Innovations Office, Seyfarth Shaw LLP, Chicago, Ill.

Making Attorneys Champions of Data and Information Usage

Please direct any comments or questions to either of the editors in chief:

William P. ScarbroughBarnes & Thornburg LLP171 Monroe Avenue, NW Suite 1000Grand Rapids, MI 49503-2694616.742-3933email: wscarbrough@btlaw.com

Janet AccardoSkadden, Arps, Slate, Meagher & Flom LLPFour Times SquareNew York, NY 10036-6522212.735.2345email: janet.accardo@skadden.com

PracticeInnovations

In This Issue EDITORS IN CHIEF

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Sharon Meit Abrahams, Ed.D.National Director of Professional DevelopmentFoley & Lardner LLP Miami, FL

Silvia CoulterPrincipalLawVision GroupBoston, MA

Elaine M. EganManager, Information Center Shearman & Sterling LLP New York, NY

Rhonda FischDirector of Research and Library SystemsReed Smith LLP Pittsburgh, PA

Lisa Kellar GianakosDirector of Knowledge Management Pillsbury Winthrop Shaw Pittman LLP Washington, D.C.

Jean O’GradyDirector of Research Services DLA Piper, US, LLP Washington, D.C.

Don PhilmleeLegal Technology ConsultantWashington, D.C.

Lynn R. WatsonDirector of Information Resource TechnologiesHogan Lovells US, LLP Washington, D.C.

Linda WillManager of Libraries Thompson & Knight LLP Houston, TX

William P. ScarbroughChief Human Resources OfficerBarnes & Thornburg LLP Grand Rapids, MI

Janet AccardoDirector of Library Services Skadden, Arps, Slate, Meagher & Flom LLP New York, NY

EDITORIAL BOARD

At the Crossroads of Lawyering and Technology: Ethics

By Lynn Watson

Technology has had a significant impact in the way lawyers practice. Today, attorneys are able to respond to clients’ needs 24/7 from anywhere in the world.

Voice Activated Computing – Does It Really Work?

By Don Philmlee

It is astonishing to have a computer accurately interpret and comprehend the amorphous blob of natural language quickly and accurately, yet today’s newest smartphones and tablets often manage to accomplish this in just seconds and with a device that typically costs only a few hundred dollars.

Essential Technology for the Minimalist Lawyer

By Conrad J. Jacoby, Esq.

A surprisingly small amount of technology is sufficient to build the core tool set required for lawyers to be functional practitioners.

You Can’t Manage What You Can’t Measure: A Sneak Peek at Westlaw Analytics

By Brian Knudsen

Westlaw Analytics responds to the need for a modernized reporting environment that helps firms better understand their legal research trends and integrate those understandings flexibly into their evolving client billing strategies.

Making Attorneys Champions of Data and Information Usage

By Andrew M. Baker

Market pressures in today’s competitive environment are beginning to pique more attorneys’ interests in the significance of data and information.

Security in Era of Mobile Devices and Cloud Computing

By Bobby Kuzma

Mobile devices and cloud computing can provide gains in efficiencies and responsiveness for legal professionals, but they can provide significant security risks if not implemented with appropriate planning and forethought.

3Practice Innovations | January 2013 | Volume 14, Number 1

Making Attorneys Champions of Data and Information Usage — Continued from page 1

reality, attorneys are seeking more effective ways to plan for, execute, and manage legal work. In each of these areas, data usage can help practitioners meet new business challenges, engage their clients, enhance service delivery, and expand their practice. Further, each of these areas is a “hook” by which you can capture support and create attorney advocates for data and information usage.

PlanningAttorneys now engage in deeper matter planning than in the past. In the “old normal,” precedent and experience drove an engagement. Formal execution plans were uncommon. But, again, times have changed. Attorneys are now tasked with setting scope and expectations, creating road maps for execution, determining pricing structures, setting appropriate staffing—among other duties. To compound matters, the sophistication sought by clients in these areas is increasing steadily.

Getting these pieces right is difficult. How are attorneys to harness and leverage the past experiences of their firm and their peers? The answer to that question requires structured and unstructured data and information about those matters. By making this connection clear and, hopefully, by enabling them to take their first steps with the data in hand, you can begin to change their view on how to meet these challenges.

ExecutionTo best complete a matter, attorneys and their clients will want to know the progression of work, how they got to a given point, and what was produced along the way. Legal Project Management (LPM) took root as a means to provide tighter controls in this area. LPM has created a considerable amount of excitement within the last four years. One goal of a comprehensive LPM program is to ensure that the right people are executing the right work on a particular matter at the right time. For clients, that improves quality and leads to a more efficient outcome. The emphasis on LPM has made data, and the control it can bring, more compelling.

Billing systems and, in some cases, workflow tools can help facilitate the execution of work. They are not a replacement for a mature LPM program, but they can drive legal teams to some of the same ends. It is the data from these systems that can help divulge where you are in a given piece of work. Pinpointing “where” can be a challenge, but, as the saying goes, “Do not let perfect be the enemy of the good.” The ability to track

at any level will improve coordination, effectiveness, and greatly benefit the client.

ManagementLawyers and clients are also looking for ways to identify problems and receive early warnings related to matters, whether the problems of note are financial in nature or related to the process or circumstances of a matter. Attorneys, legal teams, and, most importantly, clients detest surprises. However, with the right data, you can mitigate risk and surprises in compelling ways.

My firm is somewhat unique in this area. Seyfarth Shaw is almost eight years into a journey that entails pulling concepts from Six Sigma and Lean, and recombining them to improve the way it delivers legal services. As the firm’s approach matured, it has been branded as SeyfarthLean. Because of our program’s genesis, an emphasis on data has been a part of our world for a while. Over time, that emphasis has rippled through our firm’s attorney ranks. What we have found is that if we track our processes better, we can then manage our matters better. And, if we can manage these engagements better, we can be more successful in the eyes of our client. Ultimately, this leads to more work and a healthier enterprise.

Nevertheless, a Six Sigma, Lean, or Lean Six Sigma program is not needed in order to reap the benefits of data and information in the management of matters. Most time entry systems provide the ability to capture task codes, which can aid the specific or systematic tracking of matters. Reporting systems can be built to leverage those data points to better control legal work. Further, combine that with timekeeper information, and you can get a sense of who is involved in a given set of work and in what capacity. Managing timekeeper sprawl alone can yield significant benefits to clients and the long-term health of a relationship.

However, once attorneys leverage task code data and related financial information, they typically yearn for more. For instance, at Seyfarth Shaw, we have a custom Matter Management System that provides timekeeper, task code, and budget information. At first, attorneys thought it was too much information. Now, we are constantly exploring new ways to gain value from our task information. We have even gone so far as to create a separate system to better track matter process data. But the first step is critical. Attorneys need to begin recognizing that there is value in that information. Once the recognition is there, they become critical

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Article Title | Continued from page 1Making Attorneys Champions of Data and Information Usage

champions in communicating that value to others and pushing for broader efforts within this space.

Continued Responsibilities of the Information StewardThough the market is helping to drive attorneys to embrace data usage, individuals looking to drive change and innovate within the practice of law cannot take their hands off the wheel. Those in practice support roles need to continue to do their part to steer and drive their organization. We have to make things easier. There are three main ways to increase the pace at which we create data usage converts.

First, we have to continue to design systems that make it easier to create, collect, and digest data. And, we need to do so with an eye toward using that data in meaningful ways in the future. If we can limit rework by attorneys and minimize obtrusion in their daily lives, we are more likely to succeed. Our goal, even if aspirational, should be to have data be a natural externality or exhaust from the firm’s legal work. If not a natural exhaust, it should be the byproduct of an endeavor in which they understand the purpose of the extra steps in the process. In the future, gamification may lead to additional data points of value, making data creation almost “fun.” However, most firms are several steps away from taking that approach seriously.

Second, we need to make data and information easier to consume. Dashboards and graphical modes of conveyance have helped. But we need to continue to push in this area, taking information design and data visualization disciplines seriously. This includes looking outside of the legal vertical for best practices. This area has seen tremendous growth in the last five years, and legal is now positioned to embrace the lessons learned within that domain.

Third, where possible, we need to create instant gratification. We need to serve up that information in a quick, meaningful way so that attorneys can use the data as soon as possible to make better decisions and enhance awareness. Assuming the collection of data requires some work by the attorney, this will help incentivize practitioners to continue feeding the system.

At all points, be aware that attorneys are a skeptical and pessimistic lot. There is research to back up that opinion now.1 Further, they tend to be slightly less altruistic than other groups.2 Advocating data for data’s sake or in hopes of benefiting others in your firm will not get you far. As you hone your message, you will need a direct tie to an acute need, and that acute need should be related to the success of their practice. By focusing on how the data can help attorneys plan, execute, and manage work, you will be in the best position for success.

In the long run, whether you make information champions of your attorneys or not will matter little. There is a gravitational pull toward increased usage of data and information in the practice of law. It’s the same “pull” that has led to big data, Hadoop and related technologies appearing outside of legal. The practice of law will eventually end up down the same path. However, if attorneys can become champions of data usage before their competitors, they will be better positioned for future success and future profit.

Sources1. Sirkin, M., Ph.D., July 26th, 2012, The Attorney Personality: Knowing and Harnessing Your Practitioners’ Tendencies, presented at an ILTA KM Peer Group Webinar.

2. Id.

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5Practice Innovations | January 2013 | Volume 14, Number 1

You Can’t Manage What You Can’t Measure: A Sneak Peek at Westlaw Analytics

Westlaw Analytics responds to the need for a modernized reporting environment that helps firms better understand their legal research trends and integrate those understandings flexibly into their evolving client billing strategies.

Very few businesses have had to adjust to a more profoundly different marketplace than large law firms have in recent years.

Corporate clients are under enormous pressure to manage costs and improve efficiency, and this has often played out in clients exerting more control on the staffing and processes of outside counsel. It’s a buyer’s

market. Corporations are putting more work out for bid. Requests for proposals are on the rise, as are alternative fee arrangements (AFAs), such as fixed fee billing. In a recent survey conducted by Thomson Reuters, 88 percent of firms said AFAs are here to stay.

It’s a new world for large firms, and those that have good project management processes in place and good awareness of what they know, what they’ve done and how they did it, are in a much better position to prosper in today’s tough marketplace. The self-awareness of these firms will allow them to better understand their costs and thresholds, and that means they can establish more predictable pricing that will deliver satisfactory client outcomes while producing a sound bottom line.

Firms are not only expected to explain their billing to the client, but they also must demonstrate that they are delivering significant and measurable value—all while trying to satisfy their own need for growth. Firms are exploring a variety of alternative business models, service models, and technology solutions in order to identify and focus on more profitable work, and leverage efficiency to turn realization rates around. Solutions providers like Thomson Reuters are developing new tools and programs to support transformation and better realization for law firm clients. For instance, earlier this year, Thomson Reuters introduced simplified pricing on WestlawNext to make it easier for users to understand potential client charges and for firms to communicate specific research costs with clients. Firms that have adopted simplified pricing are generating customer charges that are clearer, and are also deriving far more value from their contract.

Firms need better tools, and today’s cost recovery solutions are just not enough. Law firm librarians need to drill deeper to investigate billing and analyze research—getting closer to user activity through details around queries performed and documents viewed. Tomorrow’s tools, if they are going to be of real service to law firm customers, must help identify better ways to analyze utilization against the firm’s legal information contract—by user, practice area, location, and role. These tools must provide greater transparency and granularity—and must be simple to use.

By Brian Knudsen, Vice President, Strategic Marketing, Thomson Reuters

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You Can’t Manage What You Can’t Measure: A Sneak Peek at Westlaw Analytics

Such a window into research activity will help firms predict future costs, benefiting both the firm and its clients. In the current state of the economy, everyone is trying to spend less and get more for their money. With these demands, legal professionals must have information to help them predict their costs and determine matter by matter if handling a case is right for them.

Addressing the needs of the legal industryThomson Reuters is developing a new product for WestlawNext to address the need for powerful analytics that will help law firms better understand how they are conducting legal research in order to better manage it and be more successful. Although the approach will depend entirely on each firm and its clients, the technology and cost recovery solutions will provide opportunities for every firm to be more efficient and potentially recover more of its online legal research costs.

Westlaw Analytics responds to the need for a modernized reporting environment that helps firms better understand their legal research trends and integrate those understandings flexibly into their evolving client billing strategies. The new solution will have sophisticated customer analytics tools and will provide a modern predictive analytics environment to support effective client billing.

At launch, Westlaw Analytics will allow greater transparency into the firm’s Westlaw usage than has ever been available to law librarians before. The tool will allow easy navigation through all the details of every research session. Now when a librarian or practice area lead is trying to better understand a Westlaw charge, he or she can look up details of

the research session in question, including queries performed, documents viewed, and actions taken.

For example, Westlaw Analytics’ billing investigation functionality will allow firms to perform detailed research on user activity and associated costs to support client billing inquiries, searchable by time frame, client ID, user, or location. From inside the tool, administrators can customize the WestlawNext sign-on experience to allow additional options to capture data that informs the reporting detail. For instance, a research session could be tagged non-billable because it was supporting a pro bono matter. Data from the Elite financial management system can also be integrated

into the analytics, and all of these attributes will appear during the billing investigation.

Greater visibility to each user and session will give associates a better understanding of how they are doing their research. By giving a more granular report of the data being used, law librarians, for instance, will be able to hone in on their training for future associates, see if associates are researching outside of the firm’s subscriptions, and find patterns in research that would otherwise go undiscovered.

Predicting costs The comprehensive

information in Westlaw Analytics will be analyzed and available in a data format to allow associates to use predictability to determine the workload of future cases. This information is valuable for both associates and clients. For instance, an administrator could look for trends in research management across multiple matters to help the firm better budget for projects or manage an AFA proposal.

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You Can’t Manage What You Can’t Measure: A Sneak Peek at Westlaw Analytics

AlertsA menu dedicated to notifications allows law firm librarians and practice leads to set alerts for client or user activities to help proactively manage researchers and better align with client expectations. At launch, there will be simple alerts for out-of-plan usage that will be sent via e-mail. Threshold-based alerting, client-specific alerting, alerting based on role or practice area targets, and deviation from benchmarks will be available in future releases.

And did we mention that it’s simple?The simplicity of Westlaw Analytics and the intuitiveness of the user interface belie the searching, sorting, and organizational power that make up the product’s nervous system. Librarians and practice group leads will easily move from trends and charts to rich details associated with a research session or a particular client, matter, or user. Moreover, Westlaw Analytics will be an important proof point for Thomson Reuters’ strategy of integrating its solutions to support the workflow and efficiency of its customers.

We now know that the new normal is a reality to adapt to more than it is a period of time to endure. Westlaw Analytics is a new mirror to help customers see and understand themselves and their work in powerful new ways to help them meet the changing marketplace head-on—and grow. And it’s also a set of measurement tools that will offer law firm customers an entirely new set of metrics to help them manage and lead.

Westlaw Analytics has been in beta testing during 2012, with full launch in early 2013.

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About 10 years ago, lawyers were told to invest heavily in technology or face imminent professional collapse. Failing to embrace the latest tools, it was argued, would perpetuate inefficiency, reduce revenue and profits, and push clients toward more tech-savvy attorneys. And, indeed, many tools that were just starting to become economically viable

at that time did have the potential to dramatically change how certain legal tasks were performed. In particular, better and cheaper databases provided the foundation for affordable document management, case management, and knowledge management systems that helped lawyers leverage work product like never before. Since then, an entire new wave of portable computing devices, including smartphones and tablets, have freed lawyers to remain connected to their offices and their clients, regardless of physical location. And, cloud-based applications and data storage have fundamentally challenged established ways of purchasing and managing technology.

And yet, fast-forwarding from 2000 to 2012, the practice of law still helps support the same type of business deals and resolves the same types of disputes in the same courtrooms that have existed for decades. Dusty piles of gadgetry and computers, representing hundreds of thousands of dollars in

Essential Technology for the Minimalist Lawyer

A surprisingly small amount of technology is sufficient to build the core tool set required for lawyers to be functional practitioners.

wasted investments, litter the storage rooms of large and small law firms alike. In the end, given all the options available, what technology is really needed by lawyers?

This article suggests that a surprisingly small amount of technology is sufficient to build the core tool set required for lawyers to be functional practitioners. This is not to say that other technology, especially software designed to help support specific practice areas (e.g., document assembly, litigation support databases, and e-discovery management tools), will not further help support a law practice. In addition, managing client funds and effectively screening new work for potential conflicts of interest are only two essential administrative tasks that can be significantly streamlined through the use of good technology, and this article should in no way be seen to minimize the value of such tools. However, all these tools require, at a minimum, basic foundational tools before they can be of any use to any lawyer, whether “big law” or solo practitioner.

1. Laptop ComputerIt goes without saying that lawyers need a personal computer to perform their work today. Whether it’s drafting documents, conducting research, or communicating with clients, a good computer is the most frequent tool that a lawyer uses in day-to-day work. For decades, the question has not been whether a lawyer needs a computer, but rather, the type of computer that a lawyer needs.

For their own hands-on work, today’s lawyers are probably best served by using a reasonably powerful laptop computer rather than a traditional desktop computer and monitor. A computer, with its e-mail, word processing, and

By Conrad J. Jacoby, Esq., Senior Attorney, Winston & Strawn LLP

9Practice Innovations | January 2013 | Volume 14, Number 1

Essential Technology for the Minimalist Lawyer

client-facing documents, such as letters, memoranda, and invoices, should look as professional as possible. A laser printer, even a very basic model, is a tested and proven way to consistently achieve this goal.

Ink-jet printers, the major alternative to laser printers, offer some apparent advantages. Most are less expensive than a comparable laser printer while simultaneously offering the ability to print color documents on demand. Advances in printing technology have also decreased the speed difference between laser (generally faster) and ink-jet (generally slower) printers. And, many ink-jet printers are smaller and lighter than their laser printer counterparts.

However, these advantages are eclipsed by some significant disadvantages. Even today’s fast-drying inks will still run or smear if water is spilled on them. Equally important, these inks will fade over time, which can be a critical problem for contracts, wills, and other legal documents that are expected to have an extended life. The fused plastic toner used by laser printers has neither of these shortcomings; printed on acid-free paper, laser-printed documents have an estimated archival life measured in decades, if not centuries.

A final consideration for selecting a laser printer over an ink-jet alternative is operating costs. Ink-jet ink costs are much higher than comparable laser toner costs. In an office that has even modest printing needs, laser printers will rapidly prove cheaper to use. As an added benefit, toner cartridges do not dry out from lack of use, as seldom-used ink-jet cartridges are prone to do. Thus, the same toner cartridge in a lightly used laser printer may last several years, compared to the 90-day life of some modern ink-jet cartridges.

3. High Speed Internet AccessIt’s impossible to imagine a law practice today that doesn’t rely on the Internet for e-mail, research, networking, and business development—to mention only some of a lawyer’s professional tasks. Beyond basic connectivity and e-mail though, true high-speed Internet access is the basis for many essential services used by individual lawyers and law firms. Reliable broadband access is required to deploy online data backup solutions, cloud-based applications (aka, “software as a service”), and cloud-based data storage. In addition, the cost differential between business-class high-speed Internet access and older, more limited solutions such as DSL connectivity continues to decrease. Paying a little bit more for much better Internet access is usually a good idea, when such alternatives are available.

spreadsheet software, is the gateway to a lawyer’s work product and intellectual property. In many ways, a computer is more the lawyer’s office than the physical surroundings in which the computer sits. As a consequence, it makes little sense to anchor this office to one physical location. A laptop computer permits a lawyer to set up office at home, on the road, and even (with appropriate security, of course) in coffee shops and at the beach. In a time when clients increasingly demand support from their legal counsel outside regular business hours, it makes no sense to limit the ability to service these clients as necessary.

Many arguments can be made as to the best screen size and traveling weight for a lawyer’s laptop computer. It is fair to say that the type of work that lawyers perform and their physical needs must drive this decision. Road warriors will naturally gravitate towards smaller, lighter computers, while lawyers with lower travel requirements may opt for heavier computers with more comfortable keyboards and larger built-in displays. Battery life is also an important consideration; less expensive laptop computers tend to use less energy-efficient components and may also be coupled with smaller batteries. This combination can exhaust an entry-level laptop computer’s internal battery charge in as little as 2.5 hours, compared with 9 or more hours for a higher-end, more efficiently configured model.

Regardless of size and weight, though, one important consideration for all lawyers is the maximum screen resolution provided by a given laptop. A higher screen resolution offers the ability to display more information, whether through the built-in screen or an attached external monitor. Conversely, a lower resolution screen may have a frustratingly small window in which to perform work, significantly reducing productivity. The intentionally limited resolution of ultra-light, inexpensive netbook computers is one reason that these devices have become relatively unattractive compared to higher-resolution ultrabook and tablet devices. Though a more powerful graphics card offers potentially valuable ancillary features, most technology consultants believe that a 1366-by-768-pixel resolution provides the minimum effective resolution for working with current office productivity software and websites. Netbooks, by comparison, offer a maximum 1024-by-600 resolution—only 59 percent of the display visible on 1366-by-768 screens.

2. Laser PrinterEvery legal practice, no matter how virtual or “paperless,” still generates some printed materials. In addition, it’s a matter of plain common sense that

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Essential Technology for the Minimalist Lawyer

A more interesting—and less settled—related question is whether mobile high-speed Internet access, provided through a cellular modem or portable Wi-Fi device (e.g., a MiFi), is equally essential for lawyers, considering that so many locations and businesses offer complimentary or low-cost Internet connectivity for visitors and guests. On one hand, many lawyers use these guest networks without hesitation, finding them convenient and inexpensive. Other practitioners, however, prefer to use their own Internet connectivity to provide them with greater security over the data being received and transmitted. After all, most guest Wi-Fi hotspots feature prominent disclaimers about the public nature of the service, and not all of these wireless network providers support the use of virtual private network (VPN) or other security measures that can be deployed to encrypt and secure sensitive information even when it is transmitted through a public connection.

Many lawyers have found that a combination of these two solutions works best for them. Public Internet access may offer greater convenience and faster throughput that is more than adequate when working with normally sensitive information. Conversely, dedicated mobile Internet access will provide connectivity even when no public service is available, and it will also provide a greater degree of security for the transmission or receipt of highly sensitive information. In addition, the continually increasing availability of pay-as-you-go mobile Internet access has dropped the cost of maintaining dedicated mobile service to as little as $20/month—a fraction of what this service cost only a few years ago.

4. Portable E-mail AccessE-mail, more than text messaging, remains a staple in how lawyers communicate with colleagues and clients. In addition, critical documents are now more commonly sent electronically than via couriers and overnight delivery. Thus, even when out of the office, a lawyer may need to monitor e-mail to respond to questions or provide other guidance; clients and colleagues alike expect this level of availability. Fortunately, lawyers have multiple ways to remotely access e-mail, though a combination of more than one solution may provide the best balance of functionality and convenience.

Smartphones—cell phones that include added computer-like functions—are one obvious way to send and receive e-mail when away from the office. Most lawyers already carry a cell phone, so this solution requires no additional device to misplace or break. On the downside, though, even the largest smartphone screen may not display file attachments with any level of detail, and only a select few attorneys have

developed any semblance of their usual typing speed when drafting text on a tiny cell phone keyboard. In a very real way, convenience trumps total functionality.

Many lawyers have started carrying tablet devices, such as the Apple iPad and the Samsung Galaxy Tab (to mention only two of dozens of competing models), as a more robust way than smartphones to keep in touch when away from the office. Some of these tablets can be fitted with dedicated cellular modems for full-time connectivity like a smartphone; other tablets require a connection to a wireless network. These devices offer a larger screen and a much larger virtual keyboard for entering text than smartphones. It’s both easier to read incoming messages and to reply to them. In addition, thanks to their larger screen and greater processing speed and operating memory, many tablets offer higher quality Internet browsing than a lawyer might experience when using a smartphone for the same purpose. However, a tablet is an additional device for lawyers to carry and maintain. In addition, by the time an enterprising lawyer adds a tablet carrying case with built-in stand, a wireless physical keyboard for even faster text entry, and a supplemental battery pack in case the tablet’s built-in battery runs out, the total weight of the tablet and its accessories may weigh as much as, or more than, a small laptop computer.

Finally, as noted earlier, some lawyers find it most convenient to use their laptop computers as their remote e-mail access device. Although this may be the heaviest solution in terms of weight, it also offers the maximum flexibility for the lawyer. A laptop fitted with a dedicated cellular modem card can send and receive e-mail messages without sacrificing any functionality. In addition, the lawyer’s laptop computer typically also stores extensive client and colleague contact information and software for opening and creating any number of files that may be required. The newest breeds of ultrabook laptop computers also offer professional-grade performance at a weight only a pound or so heavier than the most popular 10-inch display tablet devices.

5. A Cell Phone that Sounds like A PhoneSmartphones are a popular and powerful tool for lawyers, permitting them to send and receive e-mail and text messages, research urgent questions on the Internet, and carry a full set of client contact information wherever they go. Unfortunately, in the quest to pack the most functionality into the smallest possible package, some cell phones have compromised an important feature: phone call quality. Some otherwise well-regarded smartphones are notorious for their tendency to drop voice calls and make the caller or

11Practice Innovations | January 2013 | Volume 14, Number 1

Essential Technology for the Minimalist Lawyer

provider may have the right to delete a customer’s entire hosted repository if the provider is not timely paid. Thus, it is theoretically possible for an entire law firm’s accumulated work product to vanish if something goes wrong with the logistics of the payment mechanism. A third concern is that it takes more time to upload and download large volumes of cloud-based data than it does to manage these materials locally. While that increased time may not be particularly noticeable when working with individual memos, briefs, and other lawyer work product, data transmission time can be a significant factor when working with volumes of discovery documents that need to be reviewed for relevance and then produced to a requesting party.

A somewhat different and potentially larger issue with respect to cloud-based storage is the issue of compliance with U.S. and European Union data privacy protection, as well as potential intellectual property and U.S. export control consequences of having certain information leave the United States. The cloud provider business model is based on the idea that a provider should have the ability to store client information wherever it is most efficient and cheapest. In practice, this may mean that cloud providers maintain data repositories outside the United States in countries like Mexico and Thailand. This can, theoretically, create problems for client or work product materials that must remain inside the United States.

Ensuring the location of cloud-based data is further complicated by the fact that cloud providers routinely shift data around their servers and data centers to load-balance and stage materials for faster or slower access. This load balancing is sufficiently automated that it is not always easy for a provider to know the specific physical location of where a client’s data is being stored, and it can be similarly difficult to ensure that it remains in the same physical location. Some cloud providers are addressing this potential issue by classifying data as to whether it must be stored inside (or outside) specific countries, but this naturally limits the flexibility of the cloud provider and necessarily raises the cost of this service.

ConclusionA robust law practice requires many different tools and administrative tasks to operate smoothly and efficiently, and these baseline tools are likely to provide only the starting point for many lawyers. Even without significant enhancement, though, these six tools alone should provide much of the critical infrastructure needed to grow a successful—and modern—practice.

listener sound like they’re calling from the bottom of a well.

At a time when the average American citizen spends less and less time talking on the telephone in favor of e-mail, text messaging, and Twitter, lawyers still hold a lot of business-related conversations. Moreover, clients expect to understand their lawyers—and be understood by them—when they do talk on the phone. When choosing a cell phone that will be used for business purposes, make sure that it has appropriate “call clarity.” Many organizations regularly test cell phones, so finding reviews about specific models is usually quite simple. In addition to reading reviews, it’s also important to test a given cell phone in the location where it will be used most often. Phones that work very well in the greater Los Angeles area, for example, may perform poorly in New York City, and vice versa. In addition, the same model phone may perform differently on different carriers.

6. Cloud-Based StorageOne recent but increasingly important technology that is having a very significant impact on the practice of law is cloud-based data storage. Many lawyers already use cloud-based data storage in their personal lives. Gmail, Yahoo, and other hosted e-mail environments store countless petabytes of e-mail conversations and attachments. Lawyers who purchase audio, video, and e-book files from Amazon or Apple iTunes Store automatically receive access to a cloud-based archive of their purchases. These solutions offer convenience and value.

In the business context, storing data in the cloud removes the requirement of storing it locally on devices that can break or be stolen, increasing data security. In addition, cloud-based data can be accessed from multiple authorized devices and easily shared with colleagues and clients. Data stored in the cloud also solves the critical problem of data backup and business continuity. Data stored locally, such as on an office network or individual personal computer, disappears if that storage repository becomes unavailable or breaks. This can have deep-reaching and significant consequences. Cloud-based data, moreover, includes outsourced data backup, greatly reducing the problem of data loss—at least, as long as an Internet connection is available.

Cloud-based storage is not without limitations though. If Internet connectivity is lost, cloud-based information becomes as inaccessible as if it were stored on a crashed hard drive. In addition, though the specifics very much depend on the service level agreement executed between customer and cloud provider, the

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Voice Activated Computing – Does It Really Work?

The world of fiction is full of amazing examples of talking interactive computers, from the misbehaving HAL 9000 in the movie “2001: A Space Odyssey,” to Deep Thought in the “Hitchhikers Guide to the Galaxy,” to the extremely interactive computer in “Star Trek.” For many years a vocally interactive computer has been relegated to the realm of science

fiction, leaving us mere mortals in the real world to either push buttons on a keyboard, click a mouse, or touch a screen.

In the past few years voice technologies have advanced and we appear to be on the verge of a tectonic change.

Where are the voice-enabled computers today?Speech technology is undergoing a renaissance. Today you can pick up your smartphone and say, “Send text to Don – ‘Meet you in an hour.’” And what happens? Your phone doesn’t miss a beat. It will quickly comply and accurately generate a message for you to send. No fuss. No muss. It is astonishing to have a computer accurately interpret and comprehend the amorphous blob of natural language quickly and accurately, yet today’s newest smartphones and tablets often manage

to accomplish this in just seconds and with a device that typically costs only a few hundred dollars.

Today even the lowly automobile GPS can talk and give directions. Mobile phones, tablets, computers, and cars are now talking. Not only have computers gained a “voice,” but they are also starting to interact with us in our daily lives in real and dynamic ways.

Inherent Problems Getting to this technological plateau has not been easy. To appreciate this technology, it helps to know some of the problems that have been overcome.

The world is a noisy place – For a computer to interpret what you are saying, it needs to hear your voice. While this can be an easy thing to do in a closed office, hotel room, or at home, it is a much more challenging accomplishment in today’s world of users that talk-as-they-walk, work at a noisy Starbucks, or inhabit a cubicle hive. Computers today often include noise-canceling microphones to better isolate extraneous noise, and software that can focus more tightly on your voice when you are speaking.

Computers are too slow – The human brain can process speech quickly, and so we can talk very quickly to communicate what we want. In the past, computers just haven’t been geared for this task and just could not keep up. However, in the past few years this has changed as speech processing is now “baked” right into both the

It is astonishing to have a computer accurately interpret and comprehend the amorphous blob of natural language quickly and accurately, yet today’s newest smartphones and tablets often manage to accomplish this in just seconds and with a device that typically costs only a few hundred dollars.

By Don Philmlee, Legal Technology Consultant Washington, D.C.

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Voice Activated Computing – Does It Really Work?

underlying hardware and into mainstream operating systems like Windows, Apple Macintosh, or Android.

Varieties of Human Speech and Language – Controlling a computer with a human voice is tough. A computer not only has to differentiate the words being spoken, but it must discern the correct context and meaning of what is being said. This can be an exceedingly difficult task as voices and language can vary in timbre and tone. A single language is fluid, and meaning can vary with dialects, new slang, and local phrases. This issue comes down to sampling. For instance, to correctly recognize the word “aluminum” a computer needs to know that it is English and be able to differentiate between the distinctive ways various people will pronounce the word. If it has vocal samples to choose from, it can quickly identify the word correctly. The typical solution for this problem is to limit the languages the computer will recognize and have the user laboriously train the computer.

Training is tedious – Training the computer to recognize your voice can be time consuming and frustrating, and has been a major stumbling block to the acceptance of voice technology. However a new solution has arisen that doesn’t involve training. It involves “modeling” large samples of spoken language to create a high quality language model. Extensive sampling results in superior voice recognition, with no training. As these models tend to be large and grow even larger, they are often hosted and accessed from the Internet. Much of today’s consumer-grade voice recognition technology is built upon this concept, most notably Apple’s personal assistant Siri (see below) and Google’s Voice Search.

Privacy Issues – As mentioned above, to improve the speed and efficacy of voice recognition, the language model often resides on and is accessed from the Internet. As such, anything you dictate is recorded and sent to the vendor (Apple, Google, etc.) to convert what you say into text. Certain metadata might also be sent, such as your name, the names of your address book contacts, or more. While all of this data is ostensibly and solely used to help the device (such as a smartphone or tablet) better recognize what you say, it does pose a potential privacy issue for your data.

What can you do today? Broad advances in the underlying speech recognition algorithms and in processing power on both mobile devices and the servers that they access have given us a new generation of voice technology that is responsive, interactive, and requires little or no training. The following discussion of technology is a small example of what is going on in the world of voice recognition.

Microsoft

Microsoft has voice recognition baked right into its Windows operating system. You can use specific voice commands to control your computer and it can be used for dictation, but requires a modicum of training. Despite being a fairly powerful feature for Windows, it does not get the kind of publicity it deserves. Also, Windows 8-based phones include a conversational and interactive speech recognition system that is similar to the Siri feature on Apple’s iPhone or iPad.

Google

Google’s voice offerings are wide, varied and sometimes confusing, but they work very well. They currently do not provide conversational interaction. Their applications include:

1. Voice search: Vocally search your desktop and mobile device.

2. Voice actions: Search and control your phone including GPS and SMS.

3. Voice input: Why type? This feature lets you just type what you want in your Google Android phones and tablets.

Apple

Apple’s Macintosh operating system can translate words translated to text. Like Windows, it is not a separate application but is baked right into the operating system. As with Microsoft Windows, this feature works in any application where text can be entered. No training is required.

Another Apple product, Siri, is a marquee application available for the iPhone and iPad. Remarkably it goes beyond just understanding your voice and interacts with you using natural language. Using a conversational style of intuitive responses, Siri almost seems to have a personality. It represents a paradigm shift in how we interact with computers.

Nuance

The 900-pound gorilla of voice technology is a company called Nuance Communications. They are the purveyors of the long popular and effective voice recognition software Dragon Naturally Speaking. They are very deeply involved in voice technology from user applications, to corporate and cloud applications, to military applications. They are rumored to provide the servers that power Apple’s Siri application, which is mentioned above.

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They provide voice dictation and voice search applications for mobile phones, computers, tablets, cars, and more. Their products go beyond basic dictation and can help you vocally format a document, search the Web, send e-mail, and more.

Where is this technology going? As the voice technology matures, the online vocal “sampling” datasets collected by companies like Apple, Microsoft, or Google will continue to grow and mature. This will allow voice technology to expand into new and unpredictable places in our work and home lives.

When voice technology proliferates, a voice-enabled system might always be ready and waiting to tell you what you need to know. It could synchronize with other computers and provide a uniform and unbroken “conversation” as you move from home to car to office (or other locations) and interact with it.

As voice recognition improves you may see it interpret more than the meaning of your words:

• Emotional or mood recognition - Imagine calling a support line and having the system detect if you are angry.

• Footstep recognition - As you are moving thru your office or home the computer can identify you and prepare for your arrival.

Developers are creating a mirror for the bathroom that talks to you, shows you news headlines, updates your prescriptions, schedules appointments, and even helps you match articles of clothing and more, all by simply asking it to do so.

Voice technology will likely be infused with more and more artificial intelligence. This technology will involve much, much more than just good voice recognition. The computer must interact and reason with you. This level of technology is not commonly available to corporations or consumers yet, but it is only a matter of time before it is.

Today, applications like Apple’s Siri often seem “intelligent” but the app is merely recognizing your words and then outputting a guessed response based on those words. It does not truly understand you, but it is recognizing a pattern in your words. So your smartphone is not so smart, quite yet.

But this distinction between whether a voice app is truly “intelligent” may soon be moot. Today a human can easily exhaust the conversational possibilities of apps like Siri that may only have 100, or possibly 1,000, available responses. We can easily recognize that it is not an artificial intelligence. But what happens when such a voice recognition app has over a million possible responses and it becomes extremely adept at interacting with you? That is when voice technology will become truly amazing.

Sources“Intel Says Future Ultrabooks Will Come with Touchscreens, Voice Recognition,” PCWorld, January 9, 2012, http://www.pcworld.com/article/247579/intel_says_future_ultrabooks_will_come_with_touchscreens_voice_recognition.html

“Apple’s Siri and the Future of Artificial Intelligence,” Forbes, October 15, 2011, http://www.forbes.com/sites/erikkain/2011/10/15/apples-siri-and-the-future-of-artificial-intelligence/

“Many Cars Tone Deaf To Women’s Voices,” AOL Autos, May 31, 2011, http://autos.aol.com/article/women-voice-command-systems/

“NY Time’s R&D Lab Brings Voice-Activated Computing To The Bathroom Mirror,” Maximum PC, September 21, 2011, http://www.maximumpc.com/article/news/ny_times_rd_lab_brings_voice-activated_computing_bathroom_mirror

“Toronto Trio Develops Voice-Activated Computer,” The Globe and Mail, September 7, 2012, http://www.theglobeandmail.com/report-on-business/small-business/starting-out/toronto-trio-develops-voice-activated-computer/article4527470/

“With Siri, Apple Could Eventually Build a Real AI,” Wired Magazine Cloudine, October 17, 2011, http://www.wired.com/cloudline/2011/10/with-siri-apple-could-eventually-build-a-real-ai

“Chinese Room Argument,” Internet Encyclopedia of Philosophy, http://www.iep.utm.edu/chineser/

“Windows Phone 8 Lets You Have ‘Conversations with Apps,’” June 20, 2012, The Verge, http://www.theverge.com/2012/6/20/3098818/windows-phone-8-app-speech-features

Voice Activated Computing – Does It Really Work?

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15Practice Innovations | January 2013 | Volume 14, Number 1

Security in Era of Mobile Devices and Cloud Computing

Mobile devices and cloud computing can provide gains in efficiencies and responsiveness for legal professionals, but they can provide significant security risks if not implemented with appropriate planning and forethought.

and “hosting,” a term often used in earlier times for not owning or controlling the hardware that the data is stored and processed on.

Many services that the legal industry uses are available today via cloud providers: e-mail, spam-filtering, backup, file storage, document management, customer relationship management, timekeeping, and even complete server environments. These are just a few of the things that can be outsourced to cloud providers. Today, it’s possible to start and run a law office without purchasing a single piece of software or hardware beyond a desktop PC.

When selecting a cloud provider, you need to ask careful questions about how they will store and secure your data, and what their internal controls look like. Any service handling your sensitive information needs to be vetted. Many cloud services are built to handle consumer data, with no true security safeguards, no ability to audit, and no redundancy or backups. Many providers advertise that they’ve completed SAS 70 audits. These audits show that a provider has and follows a set of internal controls surrounding and including an assessment of the effectiveness of those controls. When assessing outsourced providers, I consider having a successful SAS 70 audit as a minimum baseline for evaluating the security capabilities of a cloud provider.

The second factor to keep in mind is whether or not you can extract, export, or download all of your data from the service. For some applications, like file storage or

We are in the midst of a pair of revolutions that already have changed the face of how both individuals and businesses use technology. Mobile technologies such as smartphones and tablets change the way we access and interact with data, while cloud computing is in the process of changing the way we store and process information. While independent, these new paradigms complement each

other, and the successes in one drive development and innovation in the other.

These technologies have the potential for providing great gains in efficiencies and responsiveness to legal professionals, but they can add significant risks if not implemented with appropriate planning and forethought. In this article I’ll share some critical points to consider to keep your mobile devices and cloud deployments safe and secure.

While I’m sure that everyone has a clear picture what mobile devices are, there is significant confusion about just what exactly the “cloud” is. “Cloud” is a marketing term that encompasses a wide variety of techniques, methodologies, and service delivery models about which nobody agrees. The two main commonalities that most cloud services have are a “pay as you use” model

By Bobby Kuzma, CISSP, President, Central Florida Technology Solutions, Inc., Lakeland, Fla.

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Security in Era of Mobile Devices and Cloud Computing

backup, this isn’t a huge problem or concern. However, for more specific applications, like time or document management, gaining possession of your data may be a Sisyphean task. Ensure that any agreement includes clear provisions for defining your right to extract your own data, in a format that is compatible with other industry applications.

One of the biggest benefits of adopting cloud solutions is that they are designed around being accessed remotely over the Internet. Due to that design, it is usually equally easy to access these services from a fixed office location, from home, or even from the road. In many cases, laptop computers are falling out of favor and are being replaced by tablets and smartphones. While these mobile devices bring immense gains in portability, they add new risks that need to be addressed.

Due to the size of today’s mobile devices, they’re easy to leave behind accidentally, and are attractive targets for thieves looking to make a quick buck. To combat this, we need to insure that only the legitimate user of the device can access it without special tools, to be able to track the physical location of the device, and to be able to remotely destroy any sensitive data on the device.

Requiring the use of a passcode or password on the device is an important first step. Some devices can be configured to automatically wipe themselves if an incorrect password is attempted several times in a row. If you are dealing with sensitive information that may be present in your e-mail, this really is the absolute minimum step that you should have in place.

Enable the device’s native tracking technology, so if you lose the device, you can determine a rough location. Bear in mind that this functionality depends on both GPS and data connections, and varies in accuracy. The utility of this function should be weighed against the risk of an attacker subverting this function to track the location of the device’s owner.

Have a policy in place regarding when to remotely wipe a missing device. Depending on risk level, this could range from a multi-day waiting period to a requirement

that devices be wiped immediately after being found missing. Each type of mobile device has its own mechanism for performing remote wipes, and most devices that can integrate with Microsoft’s Exchange e-mail server can be wiped via that software.

Think about your backup strategy: Most mobile devices have a means to wirelessly back up data to a cloud service, as well as local backups to a computer via a connector cable. Make sure that these backups are complete, and are encrypted to prevent outside parties from accessing the contents.

Be careful what apps you install. Mobile devices are the next big thing for malicious software authors. Recently, malicious software has been found in the wild for ALL major smartphone and tablet operating systems.

Setup a Virtual Private Network (VPN) to secure communications from the device to your office network from eavesdropping. Any time you access the Internet via a guest wireless network, such as those found at hotels and coffee shops nationwide, you open up the possibility that your communications can be intercepted.

As a final security measure, it may be worth developing a virtual desktop solution that is accessible from mobile devices. In this type of setup, the mobile device will securely connect to a system at your office. No sensitive data is ever stored on the mobile device, and you gain the benefit of having a consistent user experience.

The confidentiality, integrity, and availability of sensitive client and firm data is of paramount importance, but with proper risk mitigation, both mobile devices and cloud services can safely enhance the IT capabilities of your firm. A little due diligence, and some common sense are all it takes.

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17Practice Innovations | July 2012 | Volume 13, Number 12

Technology has had a significant impact in the way lawyers practice. Today, attorneys are able to respond to clients’ needs 24/7 from anywhere in the world. Technology allows attorneys to be mobile and it allows them to have invaluable information at their fingertips no matter where they are. However, this same technology opens up a whole new realm of risks regarding the privacy and security of the data in question. Attorneys need to be fully aware of the potential risks and how they weigh against the more obvious benefits. Attorneys have an ethical responsibility to protect their clients’ records and files, to represent them competently, and to guard their privacy, and leveraging technologies such as wireless communications, a smartphone, a thumb drive, or cloud computing may have the potential to undermine these responsibilities.

At the Crossroads of Lawyering and Technology: Ethics

Imagine the scenario:

You’re out of the office for a much needed vacation. The client calls the office with an urgent request and you’re the only one on the team with the expertise to address it. You’re on the road and in a hurry so you have a colleague e-mail you the specifics of the inquiry. You log on to your firm’s network and copy the

merger and acquisition (M&A) agreement you’ve been working on to a thumb drive for easier access. You proceed to make your changes on your laptop, and when you’re done, you load the document up to a storage repository hosted in the cloud that you are sharing with your client. Now you go on about your day; the crisis has been averted and the client has what he or she needs.

Technology can be a great partner. It allows you to be efficient, productive, responsive, mobile, and it aids you in meeting the ever-increasing demands of

clients. However, this same technology can be your worst nightmare if you haven’t taken adequate precautions in the use of that technology. Major questions have arisen regarding:

• How these new technologies impact the practice of law

• The implications for attorneys

• Attorneys’ ethical obligations to protect clients’ confidential information and preserve clients’ records and files

• Attorneys’ obligations to provide competent representation? (Mayfield 2007)

In the prior scenario alone, there are many “holes” that could expose the attorney, firm, and client and make them vulnerable to attack or misuse their data. For example, was the e-mail encrypted? Could it have been intercepted? Was the attorney on a wired or wireless network? Was it secure? Does the attorney use his wife’s name as his network password? Did the attorney encrypt the data that he or she stored on the thumb drive? Was the drive at least stored in a safe place? What if the attorney inadvertently left his laptop at the airport

By Lynn Watson, Deputy Chief Knowledge Officer, Hogan Lovells US, LLP Washington, D.C.

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At the Crossroads of Lawyering and Technology: Ethics

by mistake; was it encrypted or at least password protected? Was the cloud provider safe; had that service been thoroughly vetted? If there were additional support staff assisting from the office, do they know what procedures and policies are required to interact with this data?

These are all questions that are coming to light as technology moves front and center in our practices. There are real threats out there, both internal and external, and attorneys need to be aware of steps they must take to help protect their relationships with their clients.

Here are some facts:

• The FBI says that cyber-attacks against law firms are on the rise. Firms house large repositories of critical data, whether it’s related to health-claims and e-discovery or M&A or intellectual property. (Mintz 2012)

• Some firms have, or are considering, cyber-liability insurance to cover them for security-related events, such as the failure to provide access or prevent access to client data, and the failure to protect the confidentiality and privacy of client data. (Reed 2010)

• The ABA has weighed in with their ABA Commission on Ethics 20/20, which outlines how technology has changed the practice of law and how the regulation on lawyers should be updated to reflect these changes. (ABA 2012)

• Privacy laws such as HIPAA, HITECH, Sarbanes-Oxley, Graham Leach Bliley, as well as a host of state-sponsored privacy laws, all emphasize the need to protect electronic data and electronic communications. (Mintz 2012)

• Since 2009, over 80 major law firms in the United States have had their systems hacked. (Jones 2012)

It is widely known that attorneys’ files are not well-protected from cyber attacks and it is generally easier for a hacker to break into a law firm’s network to steal client data than it is to hack into the clients’ networks to steal the data. (Mintz 2012) Attorneys and firms, in many cases, are their own worst enemies. Even the FBI has pointed out that the culture of law firms and the power of partners can make them an easy target. (Smith 2012) Partners insist on mobility and escalated rights within their environments; they want to be able to review important documents at home, on the road, from a hotel, etc. All of these scenarios increase risk. If the attorney can get to it, the possibility that an unintended party could gain access increases as well.

So what should an attorney do? Well, it’s not clear-cut. Different states have different guidelines, and as mentioned before, the ABA has derived a set of guidelines of its own. One thing is clear: an attorney must show due diligence and have a clear understanding of the technology he or she is using and the related risks.

Cloud ComputingCloud computing offers many conveniences and can provide significant cost savings to firms. Few if any jurisdictions have ruled out the use of cloud computing; accordingly, it has one of the fastest rates of adoption. Unfortunately, cloud services can also present some of the greatest vulnerabilities. With your data in the cloud you lose control of your environment. You no longer control updates or maintenance, and you generally have minimal insight into the infrastructure / architecture itself, including security. It’s the firm’s responsibility to be vigilant up front and obtain information and set expectations, including possible security tests. (Trope) What do you consider to be acceptable down-time? Be careful, as there may be fine print with respect to how that is actually calculated. What happens if the site goes down and you are unable to access important client information to comply with a court deadline? Does this put you in contention with your obligation to provide competent representation? It might, if you take into consideration that most cloud providers, even large, reputable ones like Google and Amazon, have had major unplanned outages. (Trope) And what happens if the site is hacked and client information is stolen, or if the data is “lost” in the cloud? These scenarios have implications for an attorney’s ethical obligations. They could lead to a breach of client privacy, or in the last instance, you may have breached your responsibility to protect your clients’ files and records.

Mobility and Wireless ComputingMobility is essential in today’s work environment. Our clients are global and our firms are global. Attorneys need to be able to work 24/7, but they can’t possibly be in the office all of the time. As a result, the demands for mobility and wireless computing have grown. Attorneys want to be able to work from home, from the airport, from the hotel—from their pockets. Smartphones, iPads, net books, and laptops have all paved the way for greater mobility. Unfortunately, this great convenience has also lead to security concerns that impact an attorney’s ethical responsibilities. Once outside of the confines of the firm’s network, these devices can pose significant threats. What if they are lost? Precautions need to be taken. The devices should be encrypted and they should be backed up.

19Practice Innovations | January 2013 | Volume 14, Number 1

At the Crossroads of Lawyering and Technology: Ethics

Many of these devices have the ability to be wiped remotely, but that’s assuming it isn’t too late. Of course, the beauty of most of these devices is their ability to connect via Wi-Fi to the Internet and back to your firm. Are you using public Wi-Fi or Wi-Fi offered by your hotel? These are not safe connections; they transmit your information in a format that can easily be intercepted and read. What about at home? If you haven’t taken the necessary precautions when setting up your personal Wi-Fi in your home, you may be no more secure there.

Data Storage Similar to the convenience of the other technologies, mini drives and thumb drives greatly facilitate your ability to carry around large volumes of data. Remember those large brief bags? They could be a thing of the past. You can now fit virtually all of your client files for all of your cases on a couple of thumb drives. Unfortunately, unless you take the necessary precautions, losing that drive is like handing someone the keys to your law office. Make sure the drive is encrypted, and if you’re using the drive for client data, you probably shouldn’t store your family vacation photos on it. Once again, you need to take into account your obligation to protect your clients’ records and you need to maintain their privacy.

In the end, technology is a double-edged sword. Technology makes our lives easier and allows us to be far more productive; however, technology also brings with it risks that we often fail to consider. There’s no doubt in anyone’s mind that technology is essential, and there is an expectation from peers and clients alike that attorneys will be able to make use of the latest tools that will help them be more efficient and better informed. (ABA 2012) Technology permeates every aspect of lawyering from legal research to e-discovery, from court filings to client billing, and from communications to conflicts checking. There is no step-by-step guide for how an attorney can optimize the use of these technologies while still upholding their ethical obligations to their clients, but the ABA and different states are beginning to formulate guidelines, and the one sentiment that seems to be consistent is that attorneys need to be actively engaged and aware of the technologies that they use. They need to do their due diligence to understand the inherent risks and they need to know what can be done to mitigate those risks. Obviously, the answer is not to turn off all electronics and pull the network cables, but attorneys need to know where the point of compromise is. Traditionally, attorneys are not tech savvy, but they do adopt the technologies they need to get the job done. Under new guidelines, attorneys need to take a more active role

in truly understanding the technologies that they are using, and they need to be aware of the inherent risks associated with those technologies.

SourcesABA Commission on Ethics 20/20 (2012, August). ABA Commission on Ethics 20/20. American Bar Association. Retrieved September 10, 2012, from http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20120508_ethics_20_20_final_hod_introdution_and_overview_report.authcheckdam.pdf

Jones, L. (2012, May 11). Bar groups try to keep up with the cloud. Thomson Reuters News and Insight Legal: Legal News, Information and Analysis. Retrieved September 10, 2012, from http://newsandinsight.thomsonreuters.com/Legal/News/2012/05_-_May/Bar_groups_try_to_keep_up_with_the_cloud/

Mayfield, A. (2007) Decrypting the Code of Ethics: The Relationship between an Attorney’s Ethical Duties and Network Security. 60 Okla. L. Rev. 547, Oklahoma Law Review, Fall 2007.

Mintz, M. (2012, March 19). Cyber-attacks on Law Firms-a Growing Threat. martindale.com Blog by Martindale-Hubbell. Retrieved September 10, 2012, from http://blog.martindale.com/cyberattacks-on-law-firms-a-growing-threat

Reed, D. (2010, August). Wisconsin Lawyer August 2010: Managing Risk: New Trends in Professional Liability Risk | State Bar of Wisconsin. Home | State Bar of Wisconsin. Retrieved September 10, 2012, from http://www.wisbar.org/AM/Template.cfm?Section=Wisconsin_Lawyer&template=/CM/ContentDisplay.cfm&contentid=95599

Smith, J. (2012, June 28). Lawyers Get Vigilant on Cyber-security - WSJ.com. Business News & Financial News - The Wall Street Journal - Wsj.com. Retrieved September 10, 2012, from http://online.wsj.com/article/SB10001424052702304458604577486761101726748.html

Trope, R. L., & Ray, C. (n.d.). The Real Realities of Cloud Computing: Ethical Issues for Lawyers, Law Firms and Judges. Documation logo HTML5. Retrieved September 10, 2012, from http://ftp.documation.com/references/ABA10a/PDfs/3_1.pdf