TRENDS IN LAW PRACTICE MANAGEMENT - CALCULATING THE RISKS

NICOLE GARTON-JONES

DAVID J. BILINSKY

WHAT QUESTIONS DO YOU WANT ANSWERED?

What:• Issues• Topics• Questions

do you want answered to make this session a HIT?

Speak up now!!!

LET’S MAKE THIS INTERACTIVE!!!

Please don’t hesitate to add a comment, suggestion or ask a question!

Aiming at sharing some ‘out of the box’ ideas!

The more we share today, the more we all get out of the day!

ON WITH THE PRESENTATION!!

The world hates change, yet it is the only thing that has brought progress. Charles Kettering

TOPICS TO BE COVERED1. Why focus on new

technologies?

2. What are the new technologies?

3. What are the opportunities and risks of the new technologies?

WHY THE FOCUS ON NEW TECHNOLOGIES?•The democratization of information and forms on the internet, client demands for more cost effective solutions and the increasing encroachment on the profession by non-lawyers using new technologies are all driving significant changes to the legal profession

WHY THE FOCUS ON NEW TECHNOLOGIES?•Lawyers, in addition to keeping current with their practice areas, increasingly must also keep up to date with new developments in business and technology in order to effectively compete in a rapidly evolving and competitive legal marketplace

WHY THE FOCUS ON NEW TECHNOLOGIES?•Professional responsibility in the context of new technology is often discussed in reactive terms, for example ensuring the preservation of confidential and privileged information in the use of cloud computing (which we will cover)

WHY THE FOCUS ON NEW TECHNOLOGIES?•There is also a pro-active professional responsibility in regards to technology, specifically a duty to keep abreast of innovation to ensure that you are delivering the most cost effective, timely and high quality legal services possible

•An idea is not a single thing. Rather, new idea is a network on the most elemental level – a new network of neurons firing in synch with each other inside your brain. It’s a new configuration that has never formed before.

•How do you get your brain in these environments where these new networks will form? Specifically, what is the space of creativity?

WHERE DOES INNOVATION COME FROM?

• the “slow hunch” - important ideas take a long time to evolve

•the process is to borrow from other people’s hunches, combine them with our own hunches and then create something new

•“chance favours the connected mind”

•To differentiate your firm and practice from competitors, consider trying new technologies and tools that expose you to lots of new and different ideas

WHERE DOES INNOVATION COME FROM?

•Columbia University law professor Tim Wu weaves together stories of information empires to examine how disruptive technologies enter and develop within society

•Ultimately, new companies that champion new and superior technologies win out

•Wu relies on Joseph Schumpeter’s concept of “creative destruction” and Clayton Christensen’s notions of disruptive and sustaining innovations to explain the eventual supplanting of the old dinosaurs by robust, entrepreneurial newcomers

THE CYCLE

•The cost of delay for innovation and for consumers is often substantial

•Think shrinking profit margins for traditional law firms and the access to justice crisis facing general society

•Who will solve these problems? Lawyers, or our non-lawyer competitors?

THE CYCLE

•Richard Susskind poses a challenge for legal readers to identify the capabilities that they possess that cannot, crudely, be replaced by advanced systems or by less costly workers supported by technology or standard processes, or by lay people armed with online self-help tools

THE END OF LAWYERS?

•four main pressures that lawyers now face: to charge less, to work differently, to embrace technology and to deregulate

•Susskind predicts that many traditional law jobs will be eroded or changed by two forces: a market pull towards commoditization and a pervasive development and uptake of information technology

THE END OF LAWYERS?

•Independent of concerns of profitability and business survival, it is also important to note that innovations in practice management and specifically legal technology are not peripheral to the fundamentals of legal thought and practice

• Rather, commentators have harkened back to Marshal McLuhan’s aphorism that “the medium is the message” and have noted that changes in the structure and delivery of legal information are also changing the legal mind

THE MEDIUM IS THE MESSAGE

•Legal practice is increasingly more about editing existing electronic precedents, managing e-discovery and mining for information held in private and public knowledge management systems

•Add the ever presence of social media, and the assault on traditional legal thought and reflection is magnified

THE MEDIUM IS THE MESSAGE

2. WHAT ARE THE NEW TECHNOLOGIES?

Today, we are going to focus on:

•Cloud Computing (SaaS, Storage Clouds, IaaS)

•Virtual law practice, including unbundling of legal services

•Social Networking

THE CLOUD

TYPES OF CLOUDS

TYPES OF CLOUDS

“Traditional”

Hosted by 3rd party

Accessible via the Internet

TYPES OF CLOUDS

Internally hosted

Appear to be on the cloud

Remain at all times within the control of the enterprise

“Virtual Cloud”

Microsoft Sharepoint enabled

TYPES OF CLOUDS

Blend of ‘public’ and ‘private’ applications

Typical for most organizations

TYPE OF CLOUD SERVICES

Software as a Service (SaaS):

• Gmail or Clio or RocketMatter

Storage Cloud:

• Dropbox or SpiderOak

Infrastructure as a Service (IaaS):

• Rackspace, i-worx

SAAS: PROTECTING CLIENT DATA ONLINE

•lawyers must ensure that client information is protected in the hands of the technology provider or the hosting company the firm chooses

SAAS: PROTECTING CLIENT DATA ONLINE•Companies providing practice management technology will host application data either in their own servers or will have a relationship (usually a lease) with a third party provider that owns the data centre where it houses the data on its servers

•If the provider offers geo-redundancy, then the law office data will be housed in two different data centres in different geographic locations

SAAS: PROTECTING CLIENT DATA ONLINE CON’T

•Research the technology provider and understand the terms of service agreement

•Understand the relationship and review any agreement covering data access and confidentiality that may exist between the service provider and the hosting company

SAAS: PROTECTING CLIENT DATA ONLINE CON’T•Understand: data return and retention policies, transferring data and compatibility issues for restoring data, backups, export features and offline versions of the software, third party hosting, server locations and geo-redundancy, international laws that may apply if the services are located in another country, response time of the provider and tech support, confidentiality of law office data (including who has access, procedures for government and civil search and seizure actions, procedures for potential breach of confidentiality) and the provider’s industry reputation and infrastructure to support growth

SAAS: PROTECTING CLIENT DATA ONLINE FURTHER READING

•Black, Nicole, Cloud Computing for Lawyers, ABA/LPM, January 2012

•Law Society of British Columbia, Report of the Cloud Computing Working Group, July 15, 2011

ETHICS OF PRACTICING ON THE CLOUDCloud is moving ahead of the ethics curve

ABA Ethics 20/20 Commission

“Impact of Internet technology on the delivery of legal services, both globally and within the United States”

Law Society of BC Cloud Computing Working Group Final Report - hailed as a leading thoughtful document

LSBC CLOUD REPORT GUIDELINESLawyers must ensure:

• Confidentiality and privilege are protected

• Ascertain where the data will be stored

• Ownership of data does not pass

What happens if:

• Cloud provider goes out of service?• Circumstances under which a cloud

provider cuts off access?• Access to source code/software?

LSBC CLOUD GUIDELINES

Does the Cloud provider:

• Support e-discovery and forensic investigations?

• Sell or commoditize the data?• Releases independent audits of their

security?

LSBC CLOUD GUIDELINES

Compare:

• Cloud service with existing services

• Determine if cloud is appropriate

Document all this due diligence!

• May be important if something goes Wrong

LSBC CLOUD GUIDELINESAsk Yourself:

• How easy can you migrate the data to a different provider?

• Who has access to the data?• Under what circumstances do they

gain access?• What are the archive times for the

provider? Do they match the LSBC requirements?

• Is data ‘deleted’ or ‘erased’?• What are your remedies if they breach

the SLA, privacy policy, terms of service, security policy?

WHAT IS A VIRTUAL LAW FIRM?1. A law firm where legal services

are delivered to clients entirely online through a secure web-based portal;

2. A law firm with a centralized administration, management and brand but the lawyers work remotely (at client sites, home, satellite offices etc.)

PRACTICING ENTIRELY ONLINE:EXAMPLES

Online Firms:

https://www.kimbrolaw.com/

http://www.marylandfamilylawyer.com/divorce.asp

http://www.heritagelawonline.com/ - shut down in 2011

Vendors of Online Platforms:

http://www.vlotech.com/

http://www.directlaw.com/

CENTRALIZED IT, MANAGEMENT & BRAND BUT REMOTE LAWYERS: EXAMPLES

http://www.fsblegal.com/

http://www.virtuallawpartners.com/

http://www.rimonlaw.com/

http://www.valkyrielaw.com/index.html

UPL RISKS IN ELAWYERING/VIRTUAL LAW FIRMS•When using online methods of elawyering, a lawyer must ensure that geographic boundaries are monitored to avoid the risk of unauthorized practice of law in a particular jurisdiction

•The firm website and online advertising should clearly define the scope of the firm’s practices and contain disclaimers explaining the reach of the firm and how technology will be used to deliver legal services online

USING TECH TO UNBUNDLE LEGAL SERVICES•Unbundling or limited scope representation is a growing trend in the delivery of legal services as new technologies for online practice management make unbundling easier for traditional firms

•Entire web-based practices can be created providing only unbundled legal services online

•Document assembly and automation programs may be used to streamline the creation of legal documents for review by the lawyer

UNBUNDLED LEGAL SERVICES BEST PRACTICES

Lawyers should understand the following:

•How to draft a limited scope agreement, how to define the scope of unbundled services online, using document assembly and automation programs, how to deliver clear guidance and instructions to the client on how to complete their matter, how to use fixed fee or value billing, how to integrate unbundled services into a full service firm by offering existing clients additional services online and other best practices

UNBUNDLED LEGAL SERVICES READING LIST

Kimbro, Stephanie, Limited Scope Legal Services: Unbundling and the Self-Help Client, ABA/LPM 2012

Kimbro, Stephanie, Serving the DIY Client: A Guide to Unbundling Legal Services for the Private Practioner (April 2012) – e-book

INTERNET SECURITY•Lawyers need to understand basic Internet security in order to responsibly communicate with clients and collaborate with others online (for e.g,, how a hacker accesses unsecured data from a public hotspot and how to safely work on a wireless network)

•Know best practices for securing hardware and mobile devices as well as safe practices for using web-based or cloud computing applications to protect clients’ confidential information

INTERNET SECURITY•Things to know: encryption, secure socket layer (SSL) and https, wireless networks, remote access to firm computers, mobile device security, security of cloud-based services, VPNs, security risks on public computers and networks, the most common online security breaches and computer vulnerabilities, enabling encryption hardware and software firewalls, password protections and disposing of hardware when upgrading

INTERNET SECURITY FURTHER READING

Legal Technology Resource Centre. Resources on Wireless Networking and Security. American Bar Association, Web.

Securing Your Clients’ Data While on the Road, David Ries and Reid Trautz http://apps.americanbar.org/lpm/lpt/articles/tch10081.shtml

Cyberspace Under Siege: Law firms are likely targets for attacks seeking to steal information off computer systems, Ed Finkel http://www.abajournal.com/magazine/article/cyberspace_under_siege/

SOCIAL NETWORKING•Microblogging - Twitter

•Social Networking - Facebook, LinkedIn, Legal OnRamp, Martindate Hubbell Connected

•Videos – YouTube, Vimeo

•Slides & document sharing: SlideShare, Docstoc, JD-Supra

• Location sharing – FourSquare

•Review & rating sites: Avvo, Yelp

SOCIAL NETWORKING RISKS•Drawing the line between personal and professional networking in online social environments is difficult because the applications were created with the purpose of sharing with as many people as possible

•User error: imprudent posts, breaching client confidentiality, “friending” a judge

SOCIAL NETWORKING RISKS•At each step, the user must consider who has access to and control of the account info he or she is providing to the social media application

•Applications change privacy and account options and the user will need to monitor his or settings regularly, as well as the content posted

•Be wary of third party applications; may be third party applications running on social networking websites that request access to user information and contact databases

SOCIAL NETWORING FURTHER READING

• Nicole Black and Carolyn Elefant, Social Media for Lawyers: The Next Frontier, American Bar Association, 2010

• Steve Bennett, Ethics of Lawyer Social Networking, 73 Alb. L. Rev. 113 (2009)

• Adrian Dayton, Social Media for Lawyers: Twitter Edition, Ark Group, 2009

MS SHAREPOINT

All about team collaboration

• “War rooms” containing: shared documents, tasks, calendars, to-do’s, integrated with Office 2010 and enabled by remote access etc…

PBWORKS

PBWORKS

Secure, encrypted collaborative workspaces

Inside and outside the firm

Case management, client extranets, knowledgebases, deal rooms, document hosting and more…

*Wish* it had the online/offline “Box” capability of Dropbox

PBWORKSCraft a separate workspace for every file

Upload documents, assign and track tasks, have chats and conferences and share documents

Customizable security settings

Craft dealrooms and share documents without email

SPIDEROAK

Mac, Windows or Linux

“free online backup, synchronization, sharing, remote access, and storage.”

‘zero knowledge’

You create your password on your own computer

no trace of your original password is ever uploaded to SpiderOak

SPIDEROAKSpiderOak cannot know even the names of your files and folders. All that SpiderOak can see: sequentially numbered containers of encrypted data.

You alone have responsibility for remembering your password!

SPIDEROAK VS DROPBOX

Dropbox

price:• 2GB free• 50GB $9.95/mth• 100GB $19.95/mth

easy to use

Security• staff: see file names• reset password

online

Spideroak

price:

• 2GB free• 100GB increments

$10/mth or $100/yr

more powerful

Security

• staff: see #'d containers

• can't reset password online

CLOUD SUPPORT QUESTIONS:

Are the servers in Canada?

Review SLA with Cloud provider

Review Privacy statement

Review Security audits

CLOUD QUESTIONS

Uptime record (reliability)?

Availability (support)?

Proprietary software?

Bandwidth (capacity)?

Reporting (feedback)?

Capacity?

Security:• By user, employee & in-transit

BACKUP AND DISASTER RECOVERY

Help desk hours

Emergency contact list and procedures to recover data

Backups and recovery• Recovery Point and Time to

Restore

LSBC or other regulatory compliance

What is/are your role/duties?

COMMENTS AND QUESTIONS

QUESTIONS?Nicole Garton-Jones

• Heritage Law

• nicole@bcheritagelaw.com

• 778 786 0615

• http://twitter.com/NGartonJones

• www.bcheritagelaw.com

Dave Bilinsky

• Practice Management Advisor• Law Society of British Columbia• daveb@lsbc.org • 604 605 5331• http://twitter.com/ david_bilinsky• www.thoughtfullaw.com