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  • 10/18/2018 6:00 AM | Denise Bashline (Administrator)

    ABA Journal News 

     

    Legal Ethics

     

    ABA ethics opinion offers guidance on data breaches

    By Jason Tashea

    Posted October 17, 2018, 4:20 pm CDT

     

    Data security

    Image from Shutterstock.

     

    Lawyers have to safeguard client data and notify clients of a data breach, and the ABA Standing Committee on Ethics and Professional Responsibility has issued a formal opinion that reaffirms that duty.

    In Formal Opinion 483, issued Tuesday, the standing committee also provided new guidance to help attorneys take reasonable steps to meet this obligation.

     

    “Lawyers today face daunting challenges from the risk of data breaches and cyber attacks that can lead to disclosure of client confidences,” says Barbara S. Gillers, chair of the standing committee. “Formal Opinion 483 offers helpful guidance on how the ABA Model Rules of Professional Conduct should inform lawyers’ approaches to these risks in order to comply with the duty to protect client information.”

     

    This opinion builds on the standing committee’s Formal Opinion 477R released in May 2017, which set forth a lawyer’s ethical obligation to secure protected client information when communicating digitally.

     

    “When a breach of protected client information is either suspected or detected, Rule 1.1 requires that the lawyer act reasonably and promptly to stop the breach and mitigate damage resulting from the breach,” Formal Opinion 483 says.

     

    To that end, this week’s new formal opinion only discusses the breach of client data, not other data breaches that may also require action on the part of an attorney or firm.

     

    The ethics opinion implicates Model Rule 1.1 (competence), Model Rule 1.4 (communications), Model Rule 1.6 (confidentiality of information), Model Rule 1.15 (safekeeping property), Model Rule 5.1 (responsibilities of a partner or supervisory lawyer) and Model Rule 5.3 (responsibilities regarding nonlawyer assistance).

     

    Like many ethics opinions regarding technology, this opinion does not endorse particular hardware or software, but rather presents “reasonable” steps a lawyer could take.

     

    “As a matter of preparation and best practices, however, lawyers should consider proactively developing an incident response plan with specific plans and procedures for responding to a data breach,” states the opinion. “The decision whether to adopt a plan, the content of any plan and actions taken to train and prepare for implementation of the plan should be made before a lawyer is swept up in an actual breach.”

     

    These recommendations are to be tailored to a lawyer’s particular needs and potential threats.

     

    The opinion states that these efforts may include restoring or implementing technology systems where it is practical, but also declining a technology solution if a task does not require it. The idea here being that internet-enabled services increase a firm’s vulnerabilities. The opinion also recommends, in a footnote, that firms should have data retention policies that limit their possession of personally identifiable information.

     

    The opinion ends on a somber reminder that even if attorneys follow the Model Rules and make “reasonable efforts” to prevent disclosure and access to client information, they may still experience a data breach. “When they do, they have a duty to notify clients of the data breach under Model Rule 1.4 in sufficient detail to keep clients ‘reasonably informed’ and with an explanation ‘to the extent necessary to permit the client to make informed decisions regarding the representation,’” the opinion closes.

     

     

    http://www.abajournal.com/news/article/aba_ethics_opinion_offers_guidance_on_data_breaches

     

     

  • 10/18/2018 5:58 AM | Denise Bashline (Administrator)

     

    Logikcull Logo

     

     

    I

    n the eyes of cybercriminals, legal professionals are an easy and lucrative target. Law firms are often a one-stop shop for incredibly sensitive information and you might not be doing enough to protect the data in your possession.

     

    And ethics watchdogs are taking note. Just yesterday, the ABA released Formal Opinion 483, providing new guidance on attorneys' duties to protect against data breaches.  

    Join us next week a free webinar on this new ethics opinion and how cybersecurity and professional responsibility overlap. 

     

     

    Cybersecurity & Your Ethical Duties

     

    How Lax Data Security Threatens You and Your Clients

     

    Thursday, October 25 at 11 AM Pacific // 2 PM Eastern

     

     

    Sign up here!

     

     

    Join the webinar to learn:

    • The implications of Formal Opinion 483 and others
    • Where professional responsibility and cybersecurity intersect
    • What steps attorneys must take to protect client data
    • How the "reasonableness" of cybersecurity protections is determined
    • And more!

     

    Featuring Eli Wald, Professor, Sturm College of Law

     

    eli_wald_circleA professor of legal ethics at the University of Denver’s Sturm College of Law, Eli was one of the first academics to investigate the ethical implications of law firm cybersecurity, or, as he terms it, “legal ethics’ next frontier.”

     

    A frequent author and speaker on ethics and professional responsibility, his work has appeared in leading journals such as the Fordham, Stanford, University of Colorado and Wisconsin law reviews, and the Georgetown Journal of Legal Ethics. Eli’s articles have also been cited in ABA ethics opinions and excerpted in legal ethics casebooks.

     

     

    Can’t make it? Sign up anyway and we’ll send you the recording.

    Trouble signing up? Reply to this email and we’ll walk you through the steps.

     

     

    Logikcull

     

  • 10/17/2018 8:30 AM | Denise Bashline (Administrator)

    ABA Journal

     

    Legal Rebels Podcast

    Could 80 percent of cases be resolved through online dispute resolution? (podcast)

    October 17, 2018, 7:00 am CDT
    By Angela Morris

     

    Colin Rule

    Colin Rule is vice president for online dispute resolution at Tyler Technologies

     

     Perhaps in five to seven years, as Colin Rule sees it, half of U.S. citizens who file court cases will have access to online dispute resolution software walking them step by step through their matters, resolving up to 80 percent of cases.

     

    “I’ve been talking about online dispute resolution a long time, and it sounded really futuristic and pie in the sky,” says Rule, vice president of online dispute resolution for Tyler Technologies, which runs e-filing and case management systems for courts. “Now I sort of feel like the dog that caught the car.”

     

    A Legal Rebel Trailblazer, Rule notes that ODR uses information technology and telephone communication to resolve a dispute. Most people who’ve handled a customer service issue with an online company have used ODR. In this episode of the ABA Journal’s Legal Rebels Podcast, Rule speaks with Angela Morris about the possibilities–and pitfalls–for this technology.

     

    Rule, a nonlawyer mediator, started doing ODR in 1999 by co-founding Online Resolution, one of the first ODR providers. In 2003, he started doing ODR for PayPal and eBay. In 2011, he co-founded Modria, an ODR company that served e-commerce clients, arbitrators and property tax assessors. And last summer, Tyler Technologies acquired Modria and pledged to transform it into an ODR tool just for courts.

     

    ODR promises to increase access to justice because it enables people to file cases online, educate themselves about their case type, negotiate with their opponent, work with a mediator, and find a streamlined path to resolve the dispute.

    “It turns every cellphone into a point of access to justice and really reduces the time to resolution,” Rule says.

       

    ODR is perfect for low-dollar civil cases in family, small claims and workplace disputes. That’s where Tyler Technologies plans to implement Modria first. But Rule has spoken with judges who’ve talked about using ODR to resolve parking and traffic tickets, probate matters and even criminal cases.

     

    Many lawyers might fear what ODR technology will do to the legal industry, Rule says. Their first instinct might be to fight it or try to slow it down. But he explains that technology such as Gmail and iPhones changed the public’s expectations, and the legal system must innovate to meet those expectations.

     

    Modria doesn’t want to replace the courts, lawyers, case managers, mediators or court employees, he says. It won’t automate the whole court process. Modria just wants to create an online environment—an easy tool—where parties can come together to resolve disputes.

     

    “There’s probably somewhere between 30 to 50 courts doing online dispute resolution in the U.S. right now,” he says. “And I expect that number to double over the next year.”

    LawPay logo.

    “This podcast is sponsored by Thomson Reuters Westlaw Edge, the most intelligent legal research platform ever. Powered by state-of-the-art AI technology built upon more than 100 years of attorney-edited annotations, Westlaw Edge delivers the fastest legal answers and most valuable insights. Experience Westlaw Edge for yourself, including the next generation of legal search, integrated litigation analytics, overruling risk indicators, and more. Visit WestlawEdge.com today.”

     

     

    In This Podcast:

    Colin Rule

    Colin Rule is vice president for online dispute resolution at Tyler Technologies. Tyler Technologies acquired Modria.com, an ODR provider that Colin co-founded, in 2017. From 2003 to 2011, Rule was director of online dispute resolution for eBay and PayPal. He has worked in the dispute resolution field for more than 25 years as a mediator, trainer and consultant.

     

     

    http://www.abajournal.com/legalrebels/article/rebels_podcast_episode_033

     

     

     

  • 10/15/2018 6:30 PM | Denise Bashline (Administrator)

    California justices take rare step of recusing themselves

    October 15, 2018

     

    SAN FRANCISCO (AP) — The California Supreme Court on Monday took the unusual step of disqualifying itself from considering a case.

     

    The justices issued an order recusing themselves from a lawsuit saying state judges were owed millions of dollars in back pay and benefits. The court normally has seven justices, but it is down to six after the retirement last year of Associate Justice Kathryn Werdegar.

     

    The justices last all recused themselves in 2010, according to court officials.

     

    The court said other judges would be assigned to decide whether to take up an appeal in the case. The court did not explain its decision, but the lawsuit also affects the salaries of state Supreme Court justices.

     

    The case was filed in 2014 by a former judge who said California mostly underpaid its judges from 2008 through 2016 as it made cuts during the recession. The court in its order Monday said any new judges assigned to the case will have taken office after June 30, 2017.

     

    An appeals court in June upheld a judge’s decision ordering the state to pay salary increases that the judge found were required as well as interest on the unpaid amount. The state is on the hook for about $40 million in back wages, interest and penalties to about 3,000 current and former judges, according to The Sacramento Bee.

     

    The state has appealed to the California Supreme Court.

     

    The justices also all recused themselves in 1989 and 1988.

     

    https://www.apnews.com/0ea26a4c432d4821a445c0f7466a0fac

     

  • 10/15/2018 6:00 PM | Denise Bashline (Administrator)

    AIDS Legal Referral Panel  

    Legal Developments in LGBTQ Employment Discrimination

     

    Sponsored by the State Bar’s Labor & Employment Law Section

     

    Tuesday, October 23rd, 5:30pm - 7:00pm

    • Presented by Lindsay Nako, Esq. and David Nahmias – Impact Fund

    • Bar Association of San Francisco, 301 Battery Street, 3rd Floor, Board Room, San Francisco, CA 94111

     

    • 1.5 Elimination of Bias CLE Credits

    • Overview: Laws prohibiting sexual orientation and gender identity discrimination have shifted rapidly in recent years. This training will describe the current state of federal and California law protecting LGBTQ workers and workers with HIV/AIDS, and identify practical considerations when advising LGBTQ, especially transgender, clients in these claims.

    All are welcome to attend the MCLE trainings. Following the training, we hope that non-Panel attorneys will sign up and support ALRP’s mission. There are many benefits to being a Panel attorney and we only ask that Panel members accept two ALRP referrals a year.

     

    The BASF Board Room (and all alternate meeting rooms) is accessible to people with disabilities. Attendees who might require a reasonable accommodation (including alternative-to-print formats of materials) are invited to contact Hannah Center in advance of the training (contact information below).

     

    ALRP provides free and low-cost legal services to people with HIV/AIDS in the San Francisco Bay Area. For questions about ALRP or our free MCLE trainings, please contact Volunteer Coordinator Hannah Center at hannah@alrp.org

     

    or (415) 701-1200 ext 303.

     

    The State Bar of California has certified ALRP, Provider #2485, to provide MCLE credit for all trainings listed.

     

     

  • 10/15/2018 6:01 AM | Denise Bashline (Administrator)

    Law Sites 

    By Bob Ambrogi on October 15, 2018

     

     heads-in-the-sand169

     

    Another state has adopted the ethical duty of technology competence for lawyers, bringing the total that have done so to 32.

     

    Related: Full list of states that have adopted the duty of technology competence.

     

    This week, the Vermont Supreme Court ordered amendments to the comments to Rule 1.1 of the Vermont Rules of Professional Conduct. The amendments track the 2012 changes to the ABA Model Rules of Professional Conduct, and specifically include Comment 8’s duty of technology competence:

     

    To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)

     

    The court also adopted comments 6 and 7, pertaining to outsourcing work by

    lawyers.

     

    The court entered its order on Oct. 9, 2018, and the changes take effect on Dec. 10, 2018.

     

    https://www.lawsitesblog.com/2018/10/chalk-another-state-adopted-duty-technology-competence.html

     

     

     

  • 10/14/2018 5:00 PM | Denise Bashline (Administrator)

     

    Logikcull Logo

     

     

    A photo of a cat. A series of emojis. A message from a bot. This isn’t your uncle’s Facebook page or the comment thread of some website. It’s how millions of corporate professionals are communicating today. It’s Slack.

     

    Slack is the massively popular file sharing and messaging system meant to make collaboration easy and seamless.

     

    But if you’re a legal professional, Slack could upset your traditional processes. That’s because Slack and similar chat and collaboration tools are quickly supplementing, if not displacing, email and discrete documents. And legal teams are used to documents, not chat rooms.

     

    Join us for an upcoming webinar, on October 16 at 11am Pacific, 2pm Eastern, as we look at how Slack is changing communications and discovery as we know them—and what you can do about it.

     

     

    The Lawyer's Guide to Discovery and Investigations in Slack

    Tuesday, October 16 at 11 AM Pacific // 2 PM Eastern

     

     

     

    Register Now!

     

     

     

     

     

    Featuring:

     

     

    Mark PikeMark Pike, Sr. Product Counsel, Slack: Mark Pike is an expert in privacy, technology policy, and intellectual property law. As senior product counsel at Slack, Mark works with product managers, designers, and engineers to create products that are compelling, engaging, and legally compliant. 

     

     

    SlarskyDavid Slarskey, Founder, Slarskey LLC: David Slarskey is an experienced commercial litigator with more than a decade of experience in litigation, trial, arbitration, and appellate practice. As a forward-thinking attorney, he's led the charge to bring Slack discovery into his cases, and successfully defeated discovery objections in the process.

     

     

    DodgeMatthew Dodge, Customer Success Manager, Logikcull: Matthew Dodge is a seasoned eDiscovery expert and customer success manager at Logikcull, where he helps legal professionals implement, manage, and simplify their discovery processes. Prior to joining Logikcull, Matthew worked as a director for the Association of Certified eDiscovery Specialists, providing training and certification for Fortune 500 companies and service providers. 

     

     

    Michael Simon Portrait cMichael Simon, Principal, Seventh Samurai: Nerd turned lawyer turned nerd, Michael Simon is an attorney and consultant with over 15 years of experience in the eDiscovery industry. Principal at Seventh Samurai and adjunct professor of law, he regularly writes and presents on pressing eDiscovery issues throughout the country.

     

     

    Can’t make it? Sign up anyway and we’ll send you the recording.

    Trouble signing up? Reply to this email and we’ll walk you

     

     

     

     

  • 10/14/2018 6:32 AM | Denise Bashline (Administrator)

     

    PTAB Bar Association Regional Event - USPTO Patent Commissioner and PTAB Speak

    The Silicon Valley USPTO is pleased to collaborate with the Silicon Valley PTAB Bar Association (link is external) for their regional event at our West Coast regional office. This CLE program is designed for all practitioners, students, and others interested in patent prosecution and Patent Trial and Appeal Board (PTAB) proceedings. Hear from USPTO Commissioner for Patents Andrew Hirshfeld on Subject Matter Eligibility, Functional Language, and USPTO priorities, and from PTAB Vice Chief Judge Scott Weidenfeller on the new updates to the Trial Practice Guide, SOP 1 and 2, Final Rule on Claim Construction, and other current developments before the board.

    Agenda:

    10:00 - 10:30 a.m. -  Registration

    10:30 - 10:35 a.m. -  Welcome by Silicon Valley USPTO Director       

     

    10:35 - 11:30 a.m. -  Keynote: Commissioner for Patents Andrew

    Hirshfeld on Subject Matter  Eligibility, Functional Language, and USPTO Priorities

     

    As Commissioner for Patents, Mr. Hirshfeld manages and leads the patent organization as its chief operating officer. He is responsible for managing and directing all aspects of this organization which affect administration of patent operations, examination policy, patent quality management, international patent cooperation, resources and planning, and budget administration.  Read More

     

    11:30 a.m. - 12:30 p.m. -    Networking Lunch with USPTO Executives 

     

     

          Lunch provided by PTAB Bar Association

     

     

    12:30 - 2:30 p.m. -  PTAB Panel Discussions on Recent Developments, including new Trial Practice Guide, SOP 1 and 2, and Final Rule on Claim Construction

     

    Moderator:           Frank Bernstein, PTAB Bar Association
                                  (Squire Patton Boggs (US) LLP)

     

    Panelists:               PTAB Vice Chief Judge Scott Weidenfeller
                                   PTAB Leda Judge Matt Clements
                                   PTAB Judge Tina Hulse
                                   PTAB Judge Christa Zado

     

    As a Vice Chief Judge at the Patent Trial and Appeal Board, Vice Chief Judge Scott Weidenfeller manages operational and administrative aspects of the Board, including providing guidance on legal issues and the impact of changes to internal Board procedures.

      

    Three (3) hours of California MCLE credit is offered for this event. Please register by October 15, 2018.

     

     

    Register Now (link is external)

     

     

    Please note that the Silicon Valley USPTO is a Federal facility. Attendees are required to present a valid form of government-issued identification (driver license or passport) and may be subject to security screening.

     

     

    This event is accessible to individuals with disabilities. To request a reasonable accommodation, including captioning, sign language interpreting, or other, please email SiliconValley@USPTO.GOV (link sends e-mail) or call 408-918-9900.

     

    Event Summary

     

    October 16, 2018

     

    10:00 AM PDT - 2:30 PM PDT

    Silicon Valley USPTO

    26 S. Fourth Street

    San Jose , CA 95113

     

     

  • 10/14/2018 6:30 AM | Denise Bashline (Administrator)

    2 Civility 

    Posted on October 11, 2018 by Laura Bagby

     

    affordable legal services

     

    Closing the Justice Gap

    In an effort to close the justice gap, Utah is poised to become the second state to license paralegals to practice law in limited circumstances. In November, the Utah Supreme Court is expected to approve and enact the final rules for a new class of legal professionals, called licensed paralegal practitioners (LPPs), who will provide legal advice and assistance to clients in certain areas of law without the supervision of a lawyer. This would make Utah the second state to use paralegals in place of lawyers to provide under-served clients with access to more affordable legal services in specific areas. Washington initiated a similar program in 2015.

    To continue:

     

    https://www.2civility.org/utah-second-state-license-paralegals-practice-law/

     

     

  • 10/12/2018 8:00 AM | Denise Bashline (Administrator)

    ABA Journal 

    By Lorelei Laird

    Posted October 10, 2018, 11:55 am CDT

     

     Money, gavel and handcuffs

    Image from Shutterstock.

     

    Updated: The American Bar Association filed an amicus brief Tuesday asking the California Supreme Court to affirm a decision critical of that state's bail schedule.

    The case involves a habeas corpus petition filed by Kenneth Humphrey, who was charged with theft and making threats in May 2017 and was unable to make the initial $600,000 bail. The San Francisco Chronicle has more on Humphrey’s case. In January, California’s First District Court of Appeal ruled that the bail schedule the trial judge used is unconstitutional, because it doesn’t permit judges to consider defendants’ individualized circumstances.

     

    The ABA’s brief cites the association’s policy, adopted as Resolution 112C at the 2017 ABA Annual Meeting, calling for an end to bail schedules that set financial bail according to the crime rather than the defendant’s level of danger to the community or flight risk. The ABA Criminal Justice Standards for Pretrial Release also call for jurisdictions to use financial bail as a last resort, with consideration of the defendant’s ability to pay. Financial bail lets wealthy people who may pose a risk buy their freedom, the brief says, while people of modest means are stuck in jail regardless of their risk levels. This violates their constitutional rights, the brief argues.

     

    “In addition to treating defendants differently and arbitrarily depending on their financial status, money-bail systems violate the fundamental constitutional right to due process,” the brief says.

     

    Humphrey was released in May into 24-hour home detention at a drug and alcohol treatment facility, where he also must wear an ankle monitor.

     

    The case is part of an effort to drastically reform California’s bail system, which culminated in September with the passage of a bail-reform bill, known as SB 10. Lawmakers hailed it as a good first step, but even those sympathetic to that cause are skeptical about California’s recently enacted bail reform law, NPR reports.

     

    Among those expressing doubts is Chesa Boudin, an assistant public defender for the city and county of San Francisco. When Boudin spoke to the ABA Journal for an April 2016 article about financial bail—the practice of charging money for the freedom of a person awaiting trial—he was clear that he thought it hurt the poor and could coerce people into pleading guilty just to get out of jail.

     

    “If you plead guilty, you get out of jail today. If you assert your innocence, you’re staying in jail,” he said then. “To see that sort of coercive pressure exerted on people to waive their constitutional rights because they’re too poor to pay for their freedom is unbelievably frustrating.”

     

    But Boudin told NPR that he thinks California’s new bail scheme, currently called SB 10 after the bill that passed through the state legislature and was signed in August, will make things worse, not better.

     

    “I was disappointed and I felt betrayed,” Boudin told NPR. “The new SB 10 doesn’t actually change the racist system of mass incarceration. It just expands it.”

     

    The trouble, Boudin and others say, is that the law is broadly written enough to give prosecutors the power to seek pretrial detention for any crime, regardless of its seriousness or whether the defendant has a prior conviction. This puts more power in the hands of judges and prosecutors.

     

    John Raphling of Human Rights Watch adds that this could allow prosecutors to use pretrial detention as a way to coerce guilty pleas, just like before.

     

    “This happens every day,” says Raphling, an attorney and a senior criminal justice researcher with Human Rights Watch. “Now you’re just giving them a whole other mechanism to keep people in.”

     

    Reformers are also concerned about California’s plans to use a computer program to do a pretrial risk assessment. Pretrial risk assessments are one solution offered by bail reformers, but critics of computerized risk assessment are worried that the data it uses to determine risk can be biased by police or prosecutorial biases, leading to decisions that look like objective evaluations of facts but aren’t. NPR reports that it’s not clear yet what software would be used, and that each of California’s 50-plus counties may make or buy its own.

     

    Cherise Fanno Burdeen is the executive director of the Pretrial Justice Institute who’s worked on ABA policy on this issue through the Criminal Justice Section. She says it’s possible that not much will change. After all, she says, these decisions have always been in the hands of judges who may be biased. She believes SB 10 will give those judges new guidance that could help reduce bias.

     

    “All that the new system will do is help courts make better decisions,” she told NPR. “It should also result in the right people being identified as a threat to public safety. And it should result in fewer people being needlessly incarcerated pending trial.”

    As NPR notes, the California bail industry is attempting to repeal the law through California’s ballot initiative system, which could put the bail industry on the same side as legal groups that would prefer to eliminate that industry. The ABA Journal previously reported that a lobbyist for the California Bail Agents Association has promised a strong pushback.

     

    “You don’t eliminate an industry and expect those people to go down quietly,” lobbyist David Quintana told the Sacramento Bee in August. “Every single weapon in our arsenal will be fired.”

     

    Updated at 1:28 p.m. to include the ABA’s amicus brief.

     

     

    http://www.abajournal.com/news/article/bail_reformers_critical_of_california_bail_reform_law

     

     

     

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