Make More Rain : legaltech 2008, technology

Yet Another Reason Attorneys Should Encrypt Email

Admin — Wed, 06 Feb 2008 08:00:20 GMT

Last Friday I wrote about the dangers of sending sensitive emails to clients unencrypted. Please read the comments Tom Mighell wrote - he made some very good points.

Today I read that sensitive settlement negotiations were discovered after a lawyer mistakenly emailed sensitive documents to a New York Times reporter rather than co-counsel.

What would have happened had the lawyer sent this email encrypted? It wouldn't have sent at all, since the encryption software wouldn't have recognized the recipient as having an encrypted key and would have thrown a warning to the sender. The sender would then know to place the correct recipient in the email.

Of course, there is a concern that you could send an encrypted email to the wrong party who is also set up to decrypt emails from you. This is a good reason to not set up encryption with everyone but rather just with those you expect to share privileged sensitive information.

The way around sending email to the wrong person, assuming you use Microsoft Outlook, is to turn off the feature "suggest names while completing to, cc, and bcc fields" in the advanced options of email options (under tools>>options).

Morepartnerincome.com is sponsored by Juris®. For information about Juris products and services for increasing law firm performance and partner income contact Juris National Sales Center:

877/377-3740, e-mail info@juris.com or go to www.Juris.com.

LegalTech Day 1 Wrap

Admin — Wed, 06 Feb 2008 03:00:10 GMT

Lots of vendors, lots of people. The show is targeted to litigation attorneys, and within that, mostly defense litigators. I did talk to a few who were corporate counsel and there may have been tracks that attracted those in transactional practice, but I didn't see it.

It won't be until tomorrow afternoon til we'll see the first session on financial management. You can bet I will be attending the session "Firm Profitability: Best Industry Practices".

I wish I had more insight on today's events, but there wasn't really much about which to write from my perspective. I think it may have to do with my placement (standing in a booth for most of the day didn't help) so tomorrow I will plan better to get around and see more sessions.

Morepartnerincome.com is sponsored by Juris®. For information about Juris products and services for increasing law firm performance and partner income contact Juris National Sales Center:

877/377-3740, e-mail info@juris.com or go to www.Juris.com.

Unencrypted Emails Between Attorneys and Clients May Not Be Privileged

Admin — Fri, 01 Feb 2008 08:00:00 GMT

The days of unencrypted email communications being protected under the attorney/client privilege may be numbered. The latest evidence of this comes from New York, where Judge Charles W. Ramos ruled last fall that emails from a doctor to his lawyer sent via a hospital's business email server weren't privileged after they were discovered by the hospital (source: Wall Street Journal Law Blog).

Judge Ramos rejected the privilege largely because, he found, the plaintiff didn’t have any real expectation that the messages were private. The hospital had a policy of prohibiting email for personal purposes, and that policy was disclosed to employees.

This is another shot across the bow to law firms. When courts have waived the privilege in situations like the above, it has been due to a lack of expectation of privacy. There have been similar cases in the past (Kaufman v. SunGard Invest. Sys., 2006 U.S. Dist. LEXIS 28149 (D.N.J. 2006)), In the bankruptcy proceeding In re Asia Global Crossing, Ltd., 324 B.R. 503 (Bankr. D.N.Y. 2005), the Southern District of New York held that email between an attorney and client left on the corporate email system waived the privilege. The court held found that the following four factors should be taken into consideration in that analysis:

(1) does the corporation maintain a policy banning personal or other objectionable use,

(2) does the company monitor the use of the employee's computer or e-mail,

(3) do third parties have a right of access to the computer or emails, and

(4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

What if the client was communicating to the attorney with encrypted email? Does that offer the client an “expectation of privacy?”

In order for a client to invoke the protections of the attorney client privilege, four elements are required:

the client is seeking legal advice;
from a professional in his capacity as an attorney;
the communication relates to the legal advice; and
the confidential communication is between the client and the attorney.

In Nat'l Econ. Research Assocs. v. Evans, 21 Mass. L. Rep. 337 (Mass. Super. Ct. 2006), the Massachusetts Superior Court held that when the employer did not specify in its manual that it could monitor email and the employee took “reasonable” steps to protect the emails (the court considered deleting the emails and running a disk de-fragmentation program sufficient), then the privilege isn’t waived. Ernest Sasso, on his firm site, wrote a comprehensive article regarding email and client confidentiality which supports the argument that encrypted email would make arguments for waiver of privilege moot. To my knowledge, the issue of encrypted mail being challenged to waive privilege has still not been litigated (please correct me if I am wrong).

If you are communicating via email to clients regarding your case, stop it now. Or, take evasive action. Use encryption in all communications with clients expected to contain privileged information. In my opinion, you have a stronger argument for an expectation of privacy even with minimal encryption (read: ease of use and implementation) than with none at all. Plus, the cost of software (for the client end) can be billed to the client as an up-front expense if the client desires to communicate via email.

The above is just a cursory look at the law to alert you to the potential danger of communicating with clients via unencrypted email. Logon to Lexis.com to research the above in more detail. And to avoid being the next victim, encrypt now.

Some encryption providers:

The above isn’t even close to comprehensive. Have your IT staff research solutions that will work with your firm.

Morepartnerincome.com is sponsored by Juris®. For information about Juris products and services for increasing law firm performance and partner income contact Juris National Sales Center:

877/377-3740, e-mail info@juris.com or go to www.Juris.com.

More Signs of Recession For Law Firms in 2008

Admin — Thu, 31 Jan 2008 08:00:58 GMT

Rob Millard's blog Adventure of Strategy takes a second look at recessionary pressures against law firms in 2008. He links to a new Client Advisory from Hildebrandt and CitiBank that is a depressing read.

According to the Advisory, 2007 started out with high expectations and ended in uncertainty. Litigation doesn't look as good since some companies appear to be settling out of potentially protracted litigation. Merck was used as the example with their recent announcement that they were settling their Vioxx claims. (Of course, news yesterday that Merck is back on the defensive may dampen that bleakness and provide hope for trial attorneys on both ends of the aisle.)

The Advisory warned of the "perfect storm" in which finance, transactional, and litigation work have all trended downward at the same time, with no offsetting surge in work related to the economic downturn itself.(p 2)

Breaking down the reasons for their bearish outlook:

The cost of leverage. The Advisory compares the economic downturn of today and 2001 and notes that the relatively high level of equity partners in 2001 in firms allowed for the use of leverage to increase profits. De-equitizing partners and increasing the barriers to equity partnership have left firms with little wiggle room to work in this economic downturn. This may be true for large firms, but it certainly isn't the case for mid-size firms who are still very much top-heavy according to the 2007 Law Firm Economic Survey from LexisNexis. If leverage was a method of bailout for large firms in the economic trough in 2001, then mid-size firms stand to profit from utilizing it in 2008. This pre-supposes firms have the will to make the admittedly difficult decisions in the more personal environment of the mid-size firm. It stands to reason that a struggling business that wants to survive will make the hard decisions to prevail in hard times. Interestingly, the Advisory argues the negative impact of increasing leverage in the firm that may necessitate a revisit to this subject. In our surveys, increased leverage has been correlative to increased income. Is the Advisory making the argument that you can be over leveraged? Is utilization of associates not the only factor?
Realization Rates. Realization rates are lower now than in 2001, placing additional pressure on increasing rate. Which leads to the next point -
Client push back. Clients, in spite of firm predictions of increasing rates, are placing price pressures on firms that place a premium on firms who are efficient at providing legal services. That, combined with lower realization rates, hurts profits.
The Challenge of Laterals. There are more lateral hires now than in 2001. According to the Advisory, laterals are the first to leave the firm when hard times hit. Perhaps for similar reasons, perhaps not, respondents to the LexisNexis 2007 Survey confirmed that they have more success with new hires than with laterals.

Lack of Offsetting Practices. It's the "perfect storm" of no transactional, litigation or finance work (although I personally think that may be a bit overstated).

Is this a pre-warning? Click here to read the Advisory in its entirety.

Morepartnerincome.com is sponsored by Juris®. For information about Juris products and services for increasing law firm performance and partner income contact Juris National Sales Center:

877/377-3740, e-mail info@juris.com or go to www.Juris.com.