William C. Martucci, who holds an LL.M. from Georgetown University in Washington, D.C., practices nationally in business and employment litigation. He focuses on complex class litigation, including wage and hour litigation, in California, Massachusetts, and New York, as well as business-to-business litigation, executive compensation disputes, business torts, and unfair competition. A nationally regarded trial lawyer, Martucci is often sought out for high-stakes jury work. His jury work has been featured in The National Law Journal.

Burcu Erbaz defends clients in business and employment litigation matters. She graduated first in her class at the University of Missouri-Kansas City School of Law, where she was on the editorial board of the UMKC Law Review. Erbaz also served as a judicial intern for Hon. Stephen R. Bough in the U.S. District Court for the Western District of Missouri, conducting legal research and drafting memoranda.

Minha Jutt represents clients in business litigation matters, including complex commercial disputes, restrictive covenants and trade secrets, and design and construction. Her experience extends to all stages of litigation, ranging from initial client counseling and fact investigation to dispositive motion practice to preparation for appeal. An honors graduate of the University of Kansas School of Law, where she served as the executive comments editor of the Kansas Law Review, Jutt clerked for Hon. Julie A. Robinson, U.S. District Court for the District of Kansas.

The integration of artificial intelligence into the legal profession has rapidly shifted from an experimental novelty to a foundational technological trend, representing in many respects a transformational shift comparable to earlier technological revolutions in the law practice. 

AI systems — especially generative AI tools such as large language models — are being adopted across law firms and courts to support key functions like legal research, drafting, document review, and administrative workflow automation. These technologies can process vast amounts of information and surface relevant statutes, precedents, and legal arguments more quickly than traditional manual methods, ultimately increasing efficiency and enabling legal professionals to prioritize strategic thinking over routine tasks. 

Missouri lawyers now routinely encounter AI in research platforms, document drafting tools, litigation analytics, and client-facing technologies. Used properly, these tools offer meaningful efficiencies, including faster access to information, assistance with initial drafting, and improved access to justice for self-represented litigants. Used improperly, however, generative AI poses serious ethical and professional risks. 

What distinguishes generative AI from earlier tools is not merely speed or convenience, but autonomy. Generative AI systems do not solely retrieve information; they generate content. That distinction is ethically significant. AI-generated outputs are statistical in nature and can produce inaccurate or misleading information, often referred to as “hallucinations.” These hallucinations are not rare anomalies; they are a known limitation of large language models.¹ 

These issues have already drawn judicial ire. As courts across the country have now documented, generative AI can fabricate case law, misstate holdings, and present false information in a manner that appears authoritative.² Several U.S. courts recently sanctioned lawyers for submitting briefs containing fabricated citations derived from unchecked AI output.³ 

Missouri’s ethical legal framework does not prohibit the use of AI. To the contrary, Missouri has long recognized that lawyers must adapt to technological change.⁴ Rule 4-1.1 of the Missouri Rules of Professional Conduct requires competent representation, and Comment [6] expressly includes a duty to stay abreast of “the benefits and risks associated with relevant technology.”⁵ Missouri Informal Opinion 2024-11, issued by the Office of Legal Ethics Counsel, confirms that generative AI is simply the latest technology subject to this longstanding principle.⁶ 

For Missouri lawyers, the ethical issue is not whether AI may be used, but how it may be used consistent with duties of competence, candor, confidentiality, and supervision.⁷ Missouri Informal Opinion 2024-11 properly frames generative AI as analogous to a nonlawyer assistant or external service provider: It’s a tool that may assist the lawyer, but it can never replace the lawyer’s independent judgment or responsibility for accuracy.⁸ 

Using AI in legal practice 

In various practices, perhaps one of the most widely advertised uses of AI is performing traditionally labor-intensive tasks in initial discovery, such as document review and e-discovery. Proponents of AI contend that AI-assisted tools can expedite labor-intensive tasks such as locating key documents, identifying key custodians, and summarizing documents. When performed accurately and thoroughly, these functions can streamline lawyers’ processes and save client expenditures on discovery — ultimately permitting lawyers to expend more time and client funds on more strategic and substantive phases of legal practice. 

Proponents of AI also contend that AI-assisted tools have the potential to streamline legal research by assisting lawyers in quickly locating on-point statutes and case law amidst vast databases. While the accuracy of these tools remains largely untested, they may develop into beneficial aids moving forward. 

AI platforms also have predictive analytic capabilities based on historical data. These capabilities can assess potential case outcomes and settlement ranges, as well as the possibility of the success of a motion based on district and judge-specific data. 

On the transactional side, AI-assisted tools can analyze dense legal terminology to spot inconsistencies, vague or unclear language, and potential risks and unfavorable terms. 

Ultimately, while these developing technologies may streamline and enhance the efficiency of various legal tasks, lawyers remain responsible for ensuring their use of AI complies with their professional obligations. 

Developing guidelines and case law: Missouri ethics and national enforcement trends 

Missouri’s ethics-first approach 

Missouri has addressed the use of AI primarily through ethical interpretation rather than prescriptive court rules. Informal Opinion 2024-11 provides a comprehensive road map for Missouri lawyers considering the use of generative AI.⁹ The opinion emphasizes several core principles:

• Competence (Rule 4-1.1): Lawyers must understand how generative AI works, what it can and cannot reliably do, and the risks associated with its use.¹⁰
• Confidentiality (Rule 4-1.6): Lawyers must evaluate whether AI platforms store, reuse, or expose client data and must make reasonable efforts to prevent unauthorized disclosure.¹¹
• Candor to the tribunal (Rule 4- 3.3): Lawyers may not submit false statements of fact or law, including fabricated citations or mischaracterized authority.¹²
• Supervision (Rules 4-5.1 and 4-5.3): AI output must be supervised just as work performed by nonlawyer assistants, vendors, or junior lawyers is supervised.¹³

The opinion is explicit that lawyers may not rely blindly on AI-generated content. Any work product generated with AI assistance must be independently reviewed and verified by the lawyer before it is used in representation.¹⁴ 

In parallel with these ethical guidelines, Missouri legislators have also proposed statutory guidance over the last couple of years, including in 2025 through HB 1462, the AI Non-Sentience and Responsibility Act.¹⁵ This bill, which did not pass the Missouri Legislature, attempted to codify key principles regarding the legal status and responsibilities associated with AI systems, including:

• Nonsentience: AI systems would have been declared nonsentient and could not hold legal personhood, personal relationships, or corporate roles.
• Human accountability: Owners, developers, and manufacturers would have remained legally responsible for AI outputs, including harm caused through intended or unintended use. Misuse by users would not transfer liability to the AI itself.
• Oversight and safety: Owners would have been required to maintain proper supervision and risk controls over AI systems, with liability for negligence or foreseeable harm. Developers and manufacturers would have to prioritize safety mechanisms and assess risks proactively.
• Piercing corporate veils: The statute made clear that corporate structures could not shield human actors from liability if AI-caused harm resulted from recklessness, negligence, or deceptive practices.

Together, the informal opinion and the proposed legislation reflect a dual approach in Missouri: The ethical guidance ensures lawyers remain competent and responsible in practice, while legislation could establish a clear legal framework assigning human responsibility and preventing AI from being treated as a legal actor. Both underscore that reliance on AI does not absolve lawyers or organizations from accountability. 

Missouri case law: Kruse v. Karlen 

Missouri courts have already enforced these principles. In Kruse v. Karlen, the Missouri Court of Appeals sanctioned a litigant for submitting an appellate brief containing fictitious AI-generated case citations.¹⁶ The court dismissed the appeal and imposed damages, emphasizing that citing nonexistent authority violates fundamental appellate obligations regardless of whether the error arose from AI use.¹⁷ 

Kruse is significant because it demonstrates that Missouri courts do not view AI misuse as a technical lapse, but as a serious breach of professional responsibility.¹⁸ The decision aligns squarely with Informal Opinion 2024-11’s insistence on verification and supervision.¹⁹ 

The federal approach and the push for certification 

Federal courts have likewise responded forcefully to AI-related misconduct. 

Missouri federal courts 

Some judges in the U.S. District Court for the Eastern District of Missouri have individualized standing orders emphasizing the proper use of AI. As an example, Rule 18 of U.S. District Judge Joshua M. Divine’s requirements provides: 

Mandatory Certification Regarding Generative Artificial Intelligence: All attorneys and pro se litigants appearing before the Court must file a certificate on the docket, together with their notice of appearance, attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey. AI, or Google Bard) or that any language drafted by generative artificial intelligence will be fully checked for accuracy by a human being, using print reporters or traditional legal databases.²⁰

In addition, the Eastern District of Missouri has issued guidance for self-represented litigants that prohibits filings drafted by any form of AI and emphasizes that litigants — including lawyers — are responsible for the contents of their filings, including portions generated with AI, under Federal Rule of Civil Procedure 11.²¹ 

Kansas federal courts 

Newly promulgated Standing Order 26-01 guides the use of artificial intelligence in preparing court filings in the U.S. District Court for the District of Kansas.²² The order cautions that AI tools may generate false statements of fact or law, including fabricated citations, and reminds litigants that they remain fully responsible for the accuracy of all filings submitted to the court. 

Lawyers and parties must review and verify any AI-assisted content — including legal authority, quotations, factual assertions, and legal analysis — before filing. The order further warns that failure to verify AI-generated material may result in sanctions, including the striking of filings, monetary penalties, referral to disciplinary authorities, disqualification of counsel, filing restrictions, or dismissal of claims. In addition, the court retains discretion to require parties to disclose the use of AI in filings and to certify that any AI-generated material has been personally reviewed and verified for accuracy. 

In a decision on Feb. 2, 2026, District Judge Julie A. Robinson sanctioned multiple lawyers for their improper use of generative AI without independently verifying the legal authority cited in their filings.²³ The court imposed monetary sanctions of $1,000-$5,000 after five lawyers signed briefs containing fabricated and misrepresented case law generated by an AI tool.²⁴ The court emphasized that the use of generative AI in legal practice is not inherently improper; rather, the violation arose from the lawyers’ failure to verify that the cited authorities actually existed and supported the propositions for which they were cited.²⁵ 

As the court explained, the duty to conduct a reasonable inquiry into the law is nondelegable under Federal Rule of Civil Procedure 11, and lawyers who sign filings certify that the legal authorities contained therein have been reviewed and verified through human judgment.²⁶ Robinson further stressed that reasonably competent lawyers should be aware of the well-publicized risks associated with unverified generative AI research, including the potential for hallucinated legal authority, and that reliance on such tools without verification falls short of the objective standard required by Rule 11.²⁷ 

In Moore v. City of Del City,²⁸ the 10th U.S. Circuit Court of Appeals dismissed an appeal as a sanction after a pro se litigant cited numerous fabricated cases that the court determined were generated by AI.²⁹ The court emphasized that failure to verify citations wastes judicial resources and undermines confidence in the legal system.³⁰ Importantly, the 10th Circuit imposed a prospective certification requirement, ordering the litigant to disclose future AI use and verify citation accuracy under penalty of perjury.³¹

While Missouri has not adopted a formal certification rule, a functional equivalent already exists. Every Missouri lawyer who signs a pleading or brief certifies — by signature — that the authority cited exists and supports the propositions asserted.³² The use of AI does not alter that obligation. 

National cases 

In Mata v. Avianca, Inc., lawyers relied on ChatGPT to draft a motion that cited six nonexistent judicial decisions.³³ The U.S. District Court for the Southern District of New York found that counsel failed to verify the AI-generated authorities before filing and imposed $5,000 in sanctions, while also ordering the lawyers to notify the judges whose names had been falsely attributed to fabricated opinions.³⁴ Widely regarded as the first major sanctions decision addressing generative AI in federal litigation, Mata established the now-frequently cited principle that the use of AI does not excuse violations of Rule 11.³⁵ 

More recently, in February 2026, the 5th U.S. Circuit Court of Appeals reaffirmed that traditional sanction rules adequately govern AI-related misconduct. In Fletcher v. Experian Information Solutions, Inc., the court observed that although generative AI represents a new technology, existing procedural rules already provide sufficient mechanisms to address inaccurate or fabricated legal citations.³⁶ The court emphasized that the same professional and procedural obligations apply regardless of whether legal research is performed by traditional means or assisted by AI.³⁷ 

Similarly, in Lifetime Well LLC v. Ibspot.com, the U.S. District Court for the Eastern District of Pennsylvania highlighted the supervisory responsibilities of lawyers when AI tools are used in preparing filings.³⁸ The court warned that a lack of diligence and supervision — particularly where less experienced lawyers rely on generative AI without adequate review — may lead to both monetary and nonmonetary sanctions when filings contain false or fabricated legal authority.³⁹ 

Together, these cases reinforce a consistent judicial message: While AI may assist with legal research and drafting, the responsibility for verifying legal authority and ensuring the accuracy of court filings remains squarely with the lawyer. 

The American Bar Association 

The American Bar Association issued formal ethical guidance on lawyers’ use of AI in ABA Formal Opinion 512 and through interpretations of the ABA Model Rules of Professional Conduct. These authorities do not prohibit the use of AI in legal practice but instead require that lawyers employ such tools in a manner consistent with their professional obligations. 

Formal Opinion 512 explains that existing ethical rules fully apply when lawyers use AI-assisted tools.⁴⁰ The duties of competence, confidentiality, supervision, candor to the tribunal, and reasonable fee practices remain the responsibility of the lawyer.⁴¹ Lawyers must independently review and verify AI-generated outputs before relying on them in legal work and must take care to avoid entering confidential client information into publicly accessible AI systems.⁴² 

The opinion further encourages law firms to implement internal policies and supervisory measures governing the use of AI.⁴³ In addition, lawyers must ensure that court filings contain verified legal authority and may need to disclose the use of AI to clients when it materially affects legal strategy, confidentiality, or costs.⁴⁴ 

In essence, once again, the responsibility for the final legal work product rests with the lawyer — not with the AI system — and lawyers remain accountable for verifying the accuracy and integrity of any AI-assisted work.

Judicial AI misuse 

A recent Bloomberg Law article reported that two federal judges issued erroneous rulings after chambers staff used generative AI tools without adequate review.⁴⁵ While these incidents sparked concern about judicial oversight, their relevance to Missouri lawyers lies elsewhere: They reinforce that accountability follows authority.⁴⁶ Just as judges remain responsible for opinions issued under their names, Missouri lawyers remain responsible for filings submitted under theirs. 

Considering AI in practice 

Proper training 

While AI-assisted tools continue to be developed, they are not infallible. Law firms should provide training to their lawyer and nonlawyer employees about the ethical and practical considerations to be made regarding the use of AI. Law firms should also establish clear policies regarding permissible uses of AI. 

Lawyers must familiarize themselves with the extent of the capabilities and limits of the AI-assisted tools. Just as law students and lawyers traditionally underwent training for Westlaw and LexisNexis, they should similarly undergo training for each AI-assisted tool they intend to deploy. A lawyer should be able to understand and articulate the mechanism an AI tool uses in its analysis, especially when that analysis influences an important strategic decision. 

Beyond attending vendor-led trainings, lawyers should independently explore and test AI-assisted tools to ensure they can fulfill their intended purposes. For example, a lawyer may ask an AI-assisted tool to review and summarize an email or contract the lawyer has already reviewed before deploying the tool more widely. 

Confidentiality

Lawyers must ensure that AI-assisted tools preserve the confidentiality of the information — both client confidentiality and any information marked as confidential through a protective order or similar mechanism. Under Missouri law, lawyers must make reasonable efforts to protect client information. In the context of AI, law firms and lawyers should ensure all AI systems used are “closed,” meaning the systems store information in protected databases. Law firms should consult with IT or cybersecurity professionals to assess risks associated with security, data privacy, and unauthorized data retention. Lawyers should review applicable terms of use for each platform to assess the risk of unauthorized disclosure. 

Lawyers should further advise their clients regarding the use, risks, and benefits of AI before obtaining informed consent from the client if necessary. 

Supervision 

All work products generated with AI assistance should be independently reviewed and verified by a lawyer before the work product is used in client matters. As numerous case law and anecdotal examples demonstrate, AI is not infallible. Lawyers should scrutinize all AI-generated work product for accuracy, bias, and thoroughness and correct any deficiencies. 

Over-reliance 

Lawyers should not over-rely on AI-assisted tools for tasks such as legal research, contract analysis, or predictive capabilities. Instead, lawyers should assess case needs, client goals, varying strategies, possible outcomes, and risks to make an informed decision regarding the best use of AI to supplement the lawyer’s own analysis rather than replace it. 

Looking ahead: Practical and ethical implications for Missouri lawyers 

Missouri is entering a phase of normalization of AI usage coupled with heightened accountability. AI will remain embedded in legal practice, but tolerance for careless or unsupervised use is rapidly disappearing. For Missouri practitioners, the road map is clear. 

First, courts are increasingly unwilling to accept ignorance, delegation, or automation as excuses for inaccurate filings. Therefore, verification must become routine. Missouri lawyers should assume courts will expect every citation, quotation, and legal proposition — whether AI-assisted or not — to be independently confirmed. This expectation is not merely aspirational, it is increasingly being enforced, and the risk of sanctions is real. As Kruse and Moore demonstrate, courts are expanding sanctions beyond monetary penalties and are willing to dismiss cases, strike filings, and impose prospective restrictions when AI misuse results in false authority or misrepresentations of the law. 

Second, law firms must address supervision explicitly. Verification obligations apply regardless of who uses the AI — lawyer, intern, nonlawyer assistant, or law clerk. Informal Opinion 2024-11 makes clear that partners and managers bear responsibility for ensuring that lawyers and nonlawyers understand appropriate AI use. 

Third, confidentiality analysis is essential. Missouri lawyers must scrutinize AI platform terms of service and data-handling practices, particularly where client information is involved. 

Finally, Missouri lawyers should resist the false choice between innovation and ethics. Banning AI outright is neither realistic nor desirable. The ethical path forward is informed, careful, and accountable use. 

Looking forward, Missouri courts may consider whether to formalize AI practices through standing orders, appellate rules, or administrative guidance, particularly as federal courts experiment with disclosure and certification requirements. Even absent such rules, Missouri’s existing Rules of Professional Conduct and Missouri Informal Opinion 2024-11 already supply a workable ethical framework: Educate yourself on the technology, safeguard confidentiality, supervise its use, verify its output, and never abdicate professional judgment. 

Generative AI does not change the lawyer’s role as gatekeeper, advocate, and officer of the court. It amplifies that role. It is a powerful tool that magnifies both competence and carelessness. For Missouri lawyers, the ethical question is not whether AI will be used, but whether it will be used in a way that preserves the competence, candor, and integrity of the profession.⁴⁷

Endnotes 
1 What are AI Hallucinations?, Google Cloud, https://cloud.google.com/discover/what-are-ai-hallucinations (last visited Dec. 30, 2025). 
2 Moore v. City of Del City, No. 25-6002, 2025 WL 3471341, at *2 (10th Cir. Dec. 3, 2025); see also Wadsworth v. Walmart Inc., 348 F.R.D. 489, 497 (D. Wyo. 2025) (“It is ... well-known in the legal community that AI resources generate fake cases.”). 
3 Daniel Wu, Lawyers Using AI Keep Citing Fake Cases in Court. Judges Aren’t Happy, WASH. POST (June 3, 2025), https://www.washingtonpost.com/nation/2025/06/03/attorneys-court-ai-hallucinations-judges/. 
4 MO. RULES OF PRO. CONDUCT R. 4-1.1 cmt. [6] (2025). 
5 Id.
6 MO. INFORMAL OP. 2024-11. 
7 MO. INFORMAL OP. 2024-11, supra note 4. 
8 Id. 
9 Id. 
10 Id.; MO. RULES OF PRO. CONDUCT R. 4-1.1. 
11 Id.; MO. RULES OF PRO. CONDUCT R. 4-1.6. 
12 Id.; MO. RULES OF PRO. CONDUCT R. 4-3.3. 
13 Id.; MO. RULES OF PRO. CONDUCT R. 4-5.1 and 4-5.3. 
14 MO. INFORMAL OP. 2024-11, supra note 4. 
15 AI Non-Sentience and Responsibility Act, H.B. 1462, 101st Gen. Assemb., Mo. (2025), available at https://legiscan.com/MO/text/HB1462/id/3141592 (last visited Mar. 16, 2026). 
16 Kruse v. Karlen, 692 S.W.3d 43, 49 (Mo. Ct. App. 2024), reh’g and/or transfer denied (Apr. 9, 2024). 
17 Id. at 53–54. 
18 Id.
19 MO. INFORMAL OP. 2024-11, supra note 4.
20 Requirements, Hon. Joshua M. Divine, U.S. Dist. Ct. for the E.D. Mo. (revised August 2025), available at https://www.moep.uscourts.gov/judge/joshua-m-divine. 
21 See Guidance for Self-Represented Litigants on the Use of Generative Artificial Intelligence (United States District Court for the Eastern District of Missouri), available at https://www. moed.uscourts.gov/self-represented-litigants-srl. 
22 U.S. Dist. Ct. for the Dist. of Kan., Standing Order No. 26-01 (2026), available at https://www.ksd.uscourts.gov/news/notice-proposed-amendment-local-rules-issuance-so-26-01-and-changes-form-protective-order (last visited Mar. 16, 2026). 
23 Doc. 218, Memorandum and Order, at 1, Overstock.com, Inc. v. Lexos Media IP, LLC, No. 2:22-cv-02324-JAR-ADM (D. Kan. Feb. 2, 2026).
24 Id. at 35–36. 
25 Id. at 20–21. 
26 Id. at 19–21. 
27 Id. at 26–28.
28 25-6002 (10th Cir. Dec. 03, 2025).
29 Moore, 2025 WL 3471341, at *3, supra note 5. 
30 Id. at *2.
31 Id. at *3.
32 MO. RULES OF PRO. CONDUCT R. 4-3.1.
33 Mata v. Avianca, Inc., 678 Fed. Supp. 3d 443, 451–52, 465–66 (S.D.N.Y. 2023). 
34 Id. 
35 Id. at 461–62 (explaining that fabricated authorities generated by AI cannot constitute "existing law” for purposes of Rule 11); see also Wadsworth v. Walmart Inc., 348 F.R.D. 489, 493 (D. Wyo. 2025) (sanctioning attorneys under Rule 11 for filing a motion that cited multiple nonexistent cases generated by AI). 
36 Fletcher v. Experian Info. Sols., Inc., No. 25-20086, 2026 WL 456842, at *3 (5th Cir. Feb. 18, 2026). 
37 Id. at *5–6. 
38 Lifetime Well, LLC v. Ibspot.com, Inc., No. 23-cv-02203, 2026 WL 195644, at *1 (E.D. Pa. Jan. 26, 2026). 
39 Id. at *4–5. 
40 See ABA Formal Op. 512 (2024). 
41 Id. at 2–4, 7–10 (2024). 
42 Id. at 5–6. 
43 Id. at 10. 
44 Id. at 7–9. 
45 Justin Henry, Judges Admit to Using AI After MadeUp Rulings Called Out, BLOOMBERG LAW (Oct. 23, 2025), https://news.bloomberglaw. com/business-and-practice/judges-called-out-for-nonfactual-rulings-admit-to-use-of-ai.
46 Stephen Gillers (Prof., NYU Law), quoted in Judges Admit to Using AI After MadeUp Rulings Called Out, BLOOMBERG LAW, supra note 47 (discussing the need for judges and lawyers to verify AI-generated citations); For additional insights regarding AI in this context of judicial engagement, see generally Anika Jaitley, Daniel W. Linna Jr., Hon. Xavier Rodriguez, V.S. Subrahmanian & Siyu Tao, Artificial Intelligence in Federal Courts: A Random-Sample Survey of Judges, 27 SEDONA CONF. J. __ (forthcoming 2026). 
47 See generally New York State Bar Association, Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence (April 2024). “Among the many comments and insights offered in connection with the New York State Bar Association Task Force on Artificial Intelligence, the conclusion is instructive in the insights provided. This report offers no “conclusions.” As AI continues to evolve, so will the work of NYSBA and the groups tasked with ongoing monitoring. As a profession, lawyers and judges must continue to refine the initial guidelines suggested in this report and audit the efficacy of proposed rules and regulations. Legal professionals are encouraged to liken this journey to the mindset of ancient explorers: Be cautious, be curious, be vigilant, and be brave.”

Jeffrey Schoenberger is a senior consultant at Affinity Consulting Group LLC.

Artificial intelligence is everywhere. According to a Forbes Advisor survey, 97% of business owners believe tools like ChatGPT will help their businesses.¹ At the American Bar Association’s TECHSHOW in March, there were more than 15 sessions about AI.² And yet, lawyers continue to make headlines for citing cases that never existed — because an AI platform confidently made them up. 

That contrast tells us something important. AI is powerful, but it is not magical. Like any other tool in your firm, AI can help or hurt depending on how — and where — you use it.

The goal is not simply to “use AI,” but instead to leverage AI effectively in certain situations, with minimal risks and maximum results. 

Start with the right model 

Different AI tools generally serve different purposes, and many can outperform traditional search engines when you want an answer that synthesizes several sources. Below are five “general-purpose” AIs and how they may help your firm — without using them for legal research or analysis. 

• ChatGPT has become a household name and excels at more general inquiries like brainstorming, outlining, and producing first drafts.
• Claude tends to be more cautious, more structured, and better with long inputs. It is less “salesy” and more deliberate.
• Google Gemini has the advantage of access to Google’s ecosystem and your stored data.
• Microsoft Copilot shines inside Microsoft 365 — summarizing email threads, manipulating Excel data, and helping draft responses in Outlook or Word.
• Perplexity combines AI summaries with citations, which is helpful for market research, tech evaluations, and comparisons. 

These tools are not designed to do legal research or final-form legal writing. Treating AI platforms as substitutes for legal judgment is how lawyers could end up embarrassing themselves — and worse, explaining themselves to disciplinary authorities. 

The safest and most effective approach is simple: 

• Use AI for administrative work or for early drafts in areas where you are already knowledgeable.
• If you can confidently spot errors, omissions, or bad advice, you are in the right territory. 

Example 1: marketing 

Many lawyers know what they want to say but dread sitting down to write it. Marketing content, such as blog posts, newsletters, and social media, often stalls out at the blank page stage. 

That is where AI earns its keep. 

In this example, start by asking ChatGPT for ideas. The quality of the results depends on the prompt.

An OK prompt: “Give me ideas for social media posts for an estate planning firm.” 

A better prompt: “I am the owner of a solo estate planning firm. I primarily work with single mothers, and I am a single mother myself. I need ideas for blog posts aimed at single mothers who do not yet have an estate plan.” 

Specific context produces better output. Once you find an idea you like, ask ChatGPT for a draft. If the draft misses the mark, tell it why and ask for a rewrite. 

You will still need to edit and factcheck. But if writer’s block is your bottleneck, AI can get you moving. 

Rule of thumb: If something feels wrong, fix it. If you are unsure, verify it or remove it. 

Example 2: writing email responses 

Not every email requires legal analysis. Many require clarity, tone control, or a nudge toward action. 

For example, Copilot can help by drafting a response based on your instructions: “I need to follow up politely but firmly and ask the client to respond.” 

That differs from asking for legal advice. Used this way, Copilot may save time and reduce friction. 

This can work particularly well for re-engaging clients who have gone silent for months. Sometimes the hardest part is figuring out what to say and how to say it. AI can help you get over that hump. 

Example 3: drafting firm policies 

Policies are another area where AI can provide leverage without undue risk. 

For example, suppose you want to formalize a work-from-home policy. You already know the rules: 

• Two days remote per week
• Three days in the office, and
• Two weeks’ advance notice for planned remote days. 

Feed that information into ChatGPT and ask it to draft the policy. You will likely receive a surprisingly thorough draft covering objectives, eligibility, approval processes, communication expectations, equipment, security, and acknowledgments. 

Will it make assumptions? Yes. 

Will it include things you do not want? Probably. 

But reviewing and refining a draft is far easier than starting from scratch. It may also surface issues you had not considered. 

A critical rule: Always start fresh 

One final operational note that matters more than people realize: When you switch topics, start a new chat in the AI platform. 

Reusing an existing conversation confuses the model and degrades output quality. Treat each task as a clean slate. You will get better results faster and with less frustration. 

The takeaway 

AI is neither a silver bullet nor a ticking time bomb. It is a productivity tool — one that rewards clear thinking, good judgment, and appropriate boundaries. 

Start by using it where the stakes are low and your expertise is high. That is how you can transform your legal practice using AI without becoming an example in an ethics presentation.

Endnotes 
1 Katherine Haan and Rob Watts, How Businesses Are Using Artificial Intelligence, FORBES (April 24, 2023), https://www.forbes.com/advisor/business/ software/ai-in-business. 
2 American Bar Association, TECHSHOW, Chicago, Ill. (March 25-28, 2026), https://www. techshow.com.

Jeffrey S. Krause is a senior consultant at Affinity Consulting Group LLC.

There is a common misperception that solo and small firm lawyers cannot afford the same level of tech security as larger firms. While it is true that firms with larger budgets can afford a larger security infrastructure, it does not necessarily mean their security is better than what a smaller firm can obtain. 

More likely, a larger security infrastructure results from more employees, including those whose job it is to maintain security, and from being a more prominent target. Small firms can also implement robust security to protect their firms and clients. Smaller firms may have fewer weak spots to protect, but they need to know those weak spots and implement security to guard them. They might also find they already pay for the tools they need.

Here are some easy ways to greatly enhance your firm’s security going into 2026 while spending little-to-no money. 

Duty 

One thing is clear: All lawyers have a duty to protect their clients’ data. The Missouri Rules of Professional Conduct, Rule 4-1.6(c) states: “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.”

Unless you want to argue about reasonableness, Rule 4-1.6(c) does not provide an exception for solo and small firm lawyers, giving them leeway due to firm size or budget. The duty is the same — you must take reasonable steps to protect client information. In doing so, you are also taking reasonable steps to protect business and personal information. 

Security weak spots 

High-profile security breaches are often reported as if a genius hacker cracked an elaborate system designed to prevent unauthorized access. While this occasionally happens, most security breaches are much less interesting. Users are careless with already-weak passwords that they may use on multiple sites. 

For example, an employee’s password to the firm’s Clio may be the same as their Netflix password, their Facebook login, and, most dangerously, that one sketchy website they visited four years ago. Affinity Consulting’s resource on password managers, located in the connect.MOBAR forms bank, can help you familiarize yourself with good password principles and password management programs. 

Some organizations do not require strong passwords or an additional layer of security if a password is compromised. Devices may be lost without the data being properly secured. In other words, solo and small firm data security is about protecting data from our own mistakes. 

Microsoft 365 

The good news is that you likely have the tools to provide sophisticated security to your clients and their data. Microsoft 365 is nearly ubiquitous among solo and small firms and provides many of the features needed to protect data. Microsoft 365 Business Standard costs $12.50 per user per month and provides almost everything you need. You might also consider Microsoft 365 Business Premium, which has additional features related to security, at $22 per user per month. 

Both the standard and premium plans include multi-factor authentication and an extensive list of security defaults. Both plans provide anti-spam, anti-malware, and anti-phishing features, and allow users to control access to SharePoint and OneDrive files. Correctly using these features provides a significant level of security.

The premium plan adds conditional access features, advanced anti-phishing, safe links and safe attachments, sensitivity labels, and data loss prevention services. You may decide the $9.50 per user per month is worth it to protect yourself from unforced errors. For example, the data loss prevention service notifies you when you attempt to share credit card numbers or content falling under HIPAA and may catch you from sharing that information in an insecure way. The service also provides a report of any information you shared. Proactive features like this help prevent errors, break bad sharing habits, and give you a list of information you have released “into the wild.” 

Passwords and multi-factor authentication 

An easy way to address security weak spots is to consider password strength. With any Microsoft 365 plan, you can set password policies. Interestingly, Microsoft’s guidance regarding passwords is different than what you may have heard previously. While it does caution against easy-to-guess passwords or passphrases, it does not state that longer is necessarily better, complex character requirements are necessary, or periodic resets serve a purpose. Instead, much of the guidance centers around multi-factor authentication. 

Most of us are familiar with MFA. It requires the user to provide two or more verification factors to gain access. For example, when a user attempts to log in from a new device or location, they enter their login and password as normal. If this information is correct, a message is sent to their phone. The message contains a code that must be entered before the user can proceed. 

Not only does Microsoft include MFA for Microsoft 365 components, MFA can also be configured to work with other applications via Azure AD (Active Directory). In addition to text message-based codes, many sites offer software-based codes, which can be stored and viewed in programs such as Microsoft Authenticator, Google Authenticator, or Twilio’s Authy. 

With MFA, compromised passwords cannot be used to gain full access unless the bad actor also possesses and is able to successfully log in to the device to which the message is sent. This is where device encryption comes in. 

Device encryption 

Encrypting your computers, laptops, tablets, and phones is another critical step in protecting data. If you enter a code to access your tablet or phone, you are already using encryption. Entering the wrong code too many times can lock or even erase the device. Good luck getting the MFA code from a locked phone. This simple encryption protects against a lost or stolen phone being used to compromise your data.

For computers and laptops, a little more work is required. For Windows Pro devices, turn on BitLocker to encrypt the device hard drive. It does not stop someone with the credentials from accessing the computer. However, a thief would have to know how to access the stolen laptop. If they do not know the credentials, they may attempt to remove the hard drive and access data that way. They cannot do this without the BitLocker code. A similar encryption tool, FileVault, is available for Mac users. 

Conclusion 

No security is bulletproof, and a short article cannot cover every aspect of security. However, Microsoft 365 and Windows, which most solo and small firms already use, offer powerful security features. Implementing just a few of them can fortify the most common weak points in your firm’s security. Combined with strong passwords, your security fortifications will rival most firms, irrespective of size.

Jeffrey S. Krause is a senior consultant at Affinity Consulting Group LLC.

Jeffrey R. Schoenberger is a senior consultant at Affinity Consulting Group LLC.

For lawyers, relationships are not just important — they are fundamental to success and longevity. While most of the business world uses customer relationship management software, the legal industry has been slow to adopt it, despite the undeniable importance of relationships in legal practice. 

This slow adoption represents a missed opportunity. CRM software can provide essential tools for lawyers to track important information about the people they meet and turn that information into mutually beneficial business relationships, helping foster strong, long-lasting connections. 

Keep track of facts 

You know the names of your client Sally’s spouse and children, her hobbies, favorite sports teams, and so on. Knowing that Sally’s spouse is Jim, she has a son, Thomas, in high school who plays volleyball, and she enjoys building ships in bottles has no bearing on legal work for her small business. But, of course, it’s courteous, it could be interesting — maybe you like ships in bottles, too — and it builds connections and rapport. 

For basic facts like these, you don’t need a heavyweight program. David Rockefeller, chief executive of Chase Manhattan Corporation, did it all with Rolodex cards.¹ 

Whether you use Apple or Google Contacts, Microsoft Outlook, or just a folder with text files in your default notes app, capture the relevant information in a way that makes sense to you. Complexity can hinder, especially if you value mobile access. 

In Apple Contacts, for example, in addition to name, phone, email, and address, it includes a “related name” field. Based on the example above, you could add two related names and relationships: “spouse” for Jim and “son” for Thomas. The related name field can hold whatever you like. Instead of just Thomas, you could write “Thomas (volleyball; middle blocker).” It’s just a text field. Outlook contains a similar feature. 

What about hobbies (ships in bottles), business wins, or other news Sally shares? You will find contact apps limiting. You could use a combination of the notes fields and a TextExpander snippet to keep a log of events, as one example. Suppose Sally said September was her business’s first month of $200,000-plus sales. You could open Contacts, click in the “note” section, type the date, and then type “first month of over $200,000 revenue.”

Whether it’s Apple Contacts, Outlook, or a cross-platform notes app, this system travels with you.

Use facts for business growth 

What the above-described system offers in simplicity, speed, and mobility, it sacrifices in flexibility, reporting, and automation. For example, to us humans, “court clerk,” “ct clerk,” and “clerk of courts” are the same person or office. Not to a computer. If you wanted to create an email list of everyone you noted talking to about an issue with the court clerk’s office, it’d be a mess to pull together because the data isn’t “sanitized.” You’re looking at a labor-intensive process to assemble an email list. 

Programs like Clio Grow, Lawmatics, and HubSpot provide organizational structure, reporting, and communications tools that humble contacts apps cannot match. Fullfledged CRM programs manage all stages of recruiting a new client or a new matter for an existing client. Suppose Sally wants to buy the building she currently rents for her business. You would create a new matter in Lawmatics (or an intake in Clio Grow) and add Sally as the contact. You can now track all interactions with Sally in persuading her to hire your firm to handle the commercial real estate purchase. 

CRM software tracks matter stages such as new lead, under review, engagement agreement, and retained. Each matter contains a calendar-centric timeline where you can add notes, schedule appointments, track emails, assign tasks, and send and receive documents. 

These capabilities may remind you of practice management software. While there are similarities, significant distinctions come in reporting and marketing tools. The more you use the CRM software, the more you can report on — for example, what percent of commercial real estate prospects greater than $500,000 become clients. Or how many inquiries resulted from an educational event you held at the community center. Or the average estimated value of clients who hire you versus those who do not. Where do you see the best return on your time? Does reporting show that Sally introduces you to lots of individuals who become clients? 

This is where CRM software shines. Lawyers traditionally market in one of two ways. One way is loud. They broadcast their name in any way they can, obtain a large number of leads, and hope that some are of sufficient quality. The other way is to quietly rely on word of mouth. Not as many leads come in, but they tend to be of higher quality. Unfortunately, neither of these methods are very targeted.

CRM software allows you to identify patterns you might miss and take advantage of them. If you market loudly, is your television ad working as well as your radio ad or your billboard? Which timeslot is working best? If you market quietly, what patterns can you identify in your best referral sources? Which sources are providing you with the best referrals? What patterns exist in those referrals and the work you do for them? This type of information lets you put your marketing dollars to work where they are most effective. 

Where practice management software focuses on handling matters for clients, CRM software focuses on the steps from prospect to signed client. In our example, once Sally agrees to representation on the purchase, a CRM tool like Lawmatics can send an engagement agreement template for her to electronically sign along with an option to pay any retainer. It can then transfer the collected information to practice management programs. 

Get started

For facts and mobility, start with either Apple Contacts or Google Contacts. Both support related names and notes. Google Contacts also supports user-defined fields. Each is accessible from the web. 

For a complete CRM solution, look for one that connects with your practice management system. A robust integration will save you time as you turn more tidbits into leads into clients.

Endnotes 
1 Joann S. Lublin, David Rockefeller’s Rolodex Was the Stuff of Legend. Here’s a First Peek. The Wall Street Journal (Dec. 5, 2017), www.wsj.com/articles/davidrockefellers-famous-rolodex-is-astonishing-heres-a-first-peek-1512494592.

The Missouri Bar and Smokeball recognize the important role solo and small firms play in every local community. By providing Smokeball Bill at no cost, all members of The Missouri Bar will now have access to a user-friendly software solution that ensures trust accounting compliance and simplifies billing.  

“By providing Smokeball Bill at no cost to all Missouri Bar members, we hope to assist them with running efficient and compliant law firms so they can even better serve their clients,” said Shelly Dreyer, 2024-2025 Missouri Bar president.

Manually managing trust accounting can lead to compliance errors and malpractice claims. Smokeball Bill makes it simple for members to easily comply with trust accounting regulations. The software also helps firms send and collect invoices and bills.

“By providing Smokeball Bill software, which typically costs $588 per user/per year, at no cost to Missouri Bar members, we aim to enhance the resources accessible to the legal community as a whole and to the clients they serve,” said Jane Oxley, CRO and co-founder of Smokeball.

This is Smokeball's 14th no-cost product partnership with a state bar, following the announcement of partnerships with state bars including the State Bar of Texas and the Oklahoma Bar Association. To learn more about Smokeball’s no-cost product offering with The Missouri Bar or to sign up, please visit www.smokeball.com/missouribill.

About Smokeball - Smokeball is your partner to drive your law firm into the future. As the industry's leading cloud-based legal practice management software, Smokeball empowers you to run your firm specific to your area of law. Our platform gives you all the insights and tools you need to work smarter, not harder: automatic time tracking and invoicing, streamlined workflows for your specific practice area, a library of over 20,000 standard legal forms and documents, and actionable reports. Smokeball is a member benefit of over 20 U.S. bar associations. Learn how to run your best firm at smokeball.com.

About The Missouri Bar - The Missouri Bar was created in 1944 by order of the Supreme Court of Missouri. Its mission is to improve the legal profession, the administration of justice, and the law on behalf of the public. Through educational programs, publications, and more, The Missouri Bar serves as a valuable resource for members — and for the citizens of Missouri.

Solo and small firms often find the role of a bookkeeper tough to fill. Most small firms may not need a full-time bookkeeper, leading them to try incomplete solutions or handle the work themselves. In many small firms, no single person plays the consistent everyday role of ensuring orderly finances. Regardless of how simple you believe your firm’s finances to be, having a constant form of oversight is valuable. A bookkeeper can streamline your finances and prevent costly errors, helping your firm stay compliant and financially healthy.

Here are eight key bookkeeping tasks that require consistent attention.

1. Time entry

If you bill by the hour, someone must be certain that time is entered into the billing system. Time entry is not the bookkeeper’s responsibility, but you should have an enforced policy of contemporaneous time entry. Then, your bookkeeper looks at daily or weekly reports to ensure people stay current with time entry. Trying to recall what you did for a client on March 3 – when it’s now March 31 and you are about to run bills – is a recipe for frustration and lost money.

2. Expense entry

If you advance costs for clients, you must have an expense recovery process and a set of eyes reviewing your bills and identifying opportunities to recover costs. Many small firms overlook this step. The partner/owner/solo runs to the courthouse for a hearing, tosses a $5 parking fee on their personal debit card or the company credit card, and then forgets to enter the recoverable expense on the client’s matter. A dedicated bookkeeper would be tasked with reviewing the company credit card, check register, bank statement, and bills to ensure all costs advanced have been properly invoiced for recovery.

3. Prompt billing

Bills should be sent out every month, or every quarter – whatever frequency you have adopted – but it should be consistent. You cannot get paid if you do not send bills.

4. Collections

Bills that go out should be paid by your terms. When they are not, someone should be following up for payment. Solo and small firms are not positioned to finance their clients’ legal bills.

5. Accounts payable

You want to get paid, and so do your vendors. Often paying bills is done when the partner/owner/solo has time. They get a bill and simply pay it without regard to the balance in the operating account, or without considering what other bills are coming due. Managing accounts payable is just as important.

6. Bank reconciliations

All operating accounts and trust accounts should be reconciled monthly. Too often, we log into online banking, see a positive balance, and assume we have money available. Be aware of the Rules of Professional Conduct governing your clients’ funds, trust account reconciliation, use of trust accounts, and the like.

7. Reports/month end

What’s your AR (accounts receivable) balance? What’s scheduled to be paid? What are the bank balances? How much WIP (work in progress) awaits billing? Someone should be responsible for running these reports and making sure the partner/owner/solo understands them.

8. Payroll

Even if payroll is outsourced, someone must ensure it’s submitted on time – weekly or monthly.

While this list appears long in article format, it might not represent 40 hours of work per week, and you may not want to increase your firm’s overhead with the cost of another employee – including salary, benefits, technology, office space, PTO, health insurance – even on a part-time basis. In that case, outsourcing is the answer for your firm.

Danielle DavisRoe, Esq., is a senior consultant at Affinity Consulting Group LLC.

Ready to take the leap into solo practice in 2025? Building a tech-savvy law firm is no longer optional – it is essential. From drafting documents to sending bills, technology makes it all happen.

Investing in the right technology will save you time and frustration for years to come. While you don’t need to buy everything up front, here’s a list of things to consider as your business grows. 

Hardware 

When selecting a laptop, focus on processor speed and RAM. The more powerful your laptop is, the faster it will run and the more time you can devote to even better serving your clients and communities. Screen and keyboard size are only important if you plan on working remotely frequently. 

Invest in a docking station to use large monitors, a full-size keyboard, and a mouse from your desk. When selecting a docking station, ensure it supports as many monitors as you plan to use and has enough USB ports for all your ancillary hardware. 

Most ancillary hardware, including wireless keyboards and mice, require a USB port. Depending on the laptop model and docking station, you may quickly run out of ports. While Bluetooth keyboards and mice cost more than other wireless devices, they don’t need USB ports to work. 

Consider investing in at least two monitors. If your laptop and docking station can support three monitors, get three. It may be tempting to get one extra-wide monitor, but if you ever need to share screens on a video conference, it’s easier to control what you share when you have multiple monitors. 

Remember to purchase a quality webcam and audio device for video conferencing. While most laptops have webcams, speakers, and microphones built into them, they are rarely of sufficient quality. The webcams built into laptops are usually placed at awkward angles and aren’t useable when your laptop lid is closed while docked. 

If your firm will handle papers, invest in a quality desktop scanner to easily scan incoming paper. Laser printers cost less than inkjet printers over time. 

Software 

Before your firm opens its doors, you’ll need an email client, a word processor, a PDF editor, and accounting software. 

It’s tempting to go with Google Workspace for email and word processing, but you may want to consider Microsoft Office. Word is a more powerful word processor than Google Docs, and Excel has several features Google Sheets lacks. You can also use Microsoft Teams for your phone system with the right Microsoft 365 subscription. 

Microsoft users can also use Teams for video conferencing. Teams makes it easy to share videos and screens with attendees, record calls, and activate background noise cancellation. Alternatively, consider Zoom for video conferencing. 

Your law firm will handle hundreds of PDFs, so consider an Adobe Acrobat subscription, which includes Adobe Sign to make it easy to collect digital signatures. To Bates number and properly redact PDFs, you’ll need Acrobat Pro. Other quality PDF applications include Kofax Power PDF and Foxit PDF Editor. 

While QuickBooks seems like the obvious choice for accounting software, it isn’t designed to accomplish everything lawyers need to do. You’ll need another program to send bills, and if you bill hourly, you’ll need a way to track your time. A word processor and spreadsheet might work while your matter volume is low, but they aren’t scalable. As your business grows, you’ll need software that can grow with you. 

Instead of QuickBooks, look for an all-in-one practice management solution that handles matter management, time entry, billing, and accounting. Most practice management solutions also have some document management and automation features. There are countless cloud-based systems that make it easy to work from anywhere. 

Marketing 

Remember to make room in your budget for marketing. Even if you don’t expect many clients to find you through a Google search, you need a website to give your firm a professional online presence. You can hire someone to create a quality homepage with contact information and include additional information later. 

Set up social media business pages for your firm anywhere you think clients may search for you. Even if you aren’t planning on doing much marketing on social media, you want people to find your firm if they are looking for it. 

Check out 99designs for budget friendly logo, website, PowerPoint, and business card designs. With 99designs, designers compete to create winning designs. You select the winner and get full rights to use the winning design. You can also hire quality web designers and graphic artists on sites like Fiverr and Upwork. 

By investing in the right technology that best aligns with your firm’s unique needs and goals, you can streamline your workflow, boost your efficiency, and elevate your legal services. As you prepare to hang your shingle, access no-cost comparison charts, white papers, checklists, and more at MoBar.org/LPM.

Microsoft Outlook allows you to create and save email templates that can help you even better serve your clients by communicating more effectively and efficiently.  If you’re familiar with templates in a word processing program like Microsoft Word, you see the power email templates offer. Rather than rewriting the same email frequently or finding an old email where you answered similar questions, you can create a customized template with default language.  

Some situations where email templates may be useful include new matter request forms, instructions to a client, directions to your office, etc. 

Currently, Microsoft has three versions of Outlook and all support email templates. Windows users could be running “Outlook (new)” or “Outlook (classic).” The icon you click in the task bar or start menu indicates your version. Mac users have only “Microsoft Outlook.” Although it isn’t labeled as “new,” its interface behaves mostly like “Outlook (new)” for Windows. 

Below are steps for each program on (a) how to create and save an email template for later use, and (b) how to use a saved email template to create a message. 

Outlook (classic) on Windows 

(a) Creating and saving an email template 

1. Open Outlook and click New Email to create a new message. 
2. Write the email message you'd like to save as a template. Leave placeholders (e.g., Xs or email space) for parts you may customize later. 
3. Click File in the message window (not the main Outlook window). 
4. Select Save As. 
5. In the Save as type dropdown, choose Outlook Template (*.oft). 
6. Navigate to the folder where you want to save the template (default is the Templates folder). 
7. Name the template and click Save. 

(b) Using a saved email template 

1. Go to the Home tab and click New Items in the ribbon. 
2. Select More Items > Choose Form. 
3. In the Look in dropdown, select User Templates in File System. 
4. Browse to find the saved template, select it, and click Open. 
5. Make any edits to the email and send it.

Outlook (new) on Windows 

(a) Creating and saving an email template 

1. When creating your first email template in Outlook (new), start with step 1. When creating subsequent templates, you can begin with step 5. 
2. Open Outlook and click New Email. 
3. Click the Insert tab > Enhance Outlook with apps. 
4. Search for My Templates. 
5. Right-click on My Templates and select pin. This adds an icon for templates to your Insert ribbon. It looks like a page with a lightning bolt at the bottom right. 
6. Click the My Templates icon you just added to the Insert ribbon. 
7. In the sidebar that opens, select the blue Template button at the bottom. 
8. Give your template a name and write the text you'd like to save as a template. 
9. Click Save. 

(b) Using a saved email template 

1. Open a new email window. 
2. Navigate to the Insert ribbon and click the My Templates icon. 
3. In the sidebar that opens, click on the saved template you wish to use. The content appears in the email. 
4. Make any changes and send the email. 

Outlook for Mac 

(a) Creating and saving an email template 

1. Open Outlook and click New Message. 
2. In the message toolbar, click the ellipses (…) and select My Templates. 
3. In the sidebar that opens, select the blue Template button at the bottom. 
4. Give your template a name and write the text you'd like to save as a template. 
5. Click Save. 

(b) Using a saved email template 

1. Open a new email window. 
2. In the message toolbar, click the ellipses (…) and select My Templates. 
3. In the sidebar that opens, click on the saved template you wish to use. The content appears in the email. 
4. The template content will load into the email. Edit as necessary and send. 

For more resources to help you build, manage, and protect your practice, visit The Missouri Bar’s Law Practice Management Resource Center. 

For many law firms without a trained bookkeeper or accountant, the general ledger is the aspect of accounting that confuses them the most. Debits and credits, journal entries, and the chart of accounts can feel like foreign concepts. Here’s a simplified breakdown of these bookkeeping/accounting concepts.

Chart of accounts 

The chart of accounts is the list of all accounts within your general ledger. There are typically six main types of accounts: 

— Asset accounts include your bank accounts, your furniture, your equipment, and any other assets the firm may own.

— Liabilities accounts include credit cards and banknotes owed by the firm.

— Equity accounts, sometimes grouped with liability accounts, show the amount of capital a partner or shareholder may have in the firm. These are grouped with liabilities as they represent the equity due to the shareholder or partner. 

— Income accounts reflect the amount of fee income, interest income, etc., that has come into the firm during a given period. 

— Expense accounts reflect the various expenses incurred by the firm for things like payroll, rent, supplies, and other overhead-related costs. 

— Retained earnings accounts are automatically calculated within the accounting system, based on how all other accounts on the financial statements add up. Essentially, retained earnings represent the cumulative net worth of the firm. 

Journal entries 

Every entry on the general ledger is two-sided – a debit and a credit. Most journal entries are made automatically by the accounting software based on the transaction you entered. Occasionally, however, you may need to make a manual journal entry. 

An automatic journal entry happens when you enter a payment from a client into the system. The payment is for fees only. The accounting system sees that and automatically debits the bank account and credits fee income. It also happens when you write a check to the landlord for rent. It would automatically credit your bank account and debit the rent expense account. 

The hardest thing for most people to understand is when something is considered a debit versus when it is a credit. Most transactions affect your bank account somehow. If you can remember that money going into the bank account is a debit, and money coming out of your bank account is a credit, then the other side of the transaction is always going to be the opposite.

Financial statements 

An income statement, sometimes referred to as a Profit & Loss (or P&L), is the net income of the firm for the current fiscal period. It shows income versus expenses. The difference between them is the net income for the period. At the end of every fiscal year, the income and expenses zero out and the new fiscal year starts fresh. The net income is used for tax reporting, and it moves over to the balance sheet as part of total retained earnings. 

A balance sheet compares the assets to the liabilities/equity. The difference between the two is the total retained earnings. The assets and liabilities do not zero out at year end, but rather carry from year to year. The current year retained earnings should always match the net income year to date on the income statement. 

A trial balance represents a combination of all accounts on the chart of accounts, giving the full financial picture, essentially combining the income statement and the balance sheet. It typically gives a starting balance for each account, shows the net change to the account, and the ending balance for it. For some accounts the net change will be a debit and for others it will be a credit. Therefore, the total net change for all accounts during a particular period should be equal. If they are not, then somehow your general ledger has gotten out of balance and should be corrected. Checking the trial balance at the end of each accounting period should be a standard procedure. 

Budgeting 

Budgets are very important. Any good back-office software product will allow you to budget expenses and income, realistically mapping out your cash flow for the year. As you print your financial statements month to month, you can see how your firm is faring compared to the budget number and compared to prior months or years. This will help you identify trends before it’s too late. 

Conclusion 

Lawyers went to law school and passed the bar to practice law, not to do accounting. But it is a fact of life that part of owning any business is cash flow and billing/accounting. Also, your firm has a duty to responsibly manage your clients’ funds and provide proper accounting of services to each client.

Follow the guidelines above, familiarize yourself with the Rules of Professional Conduct, and make sure you have some checks and balances in place. By doing this, your firm will be able to focus on the practice of law, rather than worrying about finances. 

Correction: This article was updated at noon on Jan. 15, 2025, to correct the description of “expense accounts.”

Last year, Microsoft rolled out a new Outlook interface that closely mirrors its web interface. For now, the new interface is optional for those on a business or enterprise Microsoft 365 plan, but there will come a time when everyone is pushed over to the new interface.

As a legal professional, time can feel scarce. Learn how to use the new Outlook effectively and be prepared for the changes so you don’t waste time looking for features that were moved or done away with.

New features

The interface comes with some exciting features that weren’t previously available in the desktop application, including tools for handling an onslaught of email.

Snoozing emails

Snoozing emails temporarily moves them out of your inbox. They will reappear in your inbox at the time you set. If you need a snoozed email earlier, you’ll find them in your “snoozed” folder.

Pinning emails

You will be able to pin emails you want to be able to quickly reference to the top of your inbox.

Message reminders

Want to be reminded of emails you need to reply to or emails you haven’t received a response to? You can turn on message reminders to bring those emails to the top of your inbox. You’ll find this option under “mail settings” on the layout page.

Undo send

You no longer need a rule to delay sending emails. The new Outlook has a setting to delay every email from being sent for up to 10 seconds. If you turn this setting on, you will get an undo button at the bottom of the screen after you send a message.

You’ll find this option under the mail settings on the compose and reply page.

Customize actions

The new Outlook comes with more options for the actions and add-ins you’ll see when you select a message to read. You’ll find these actions in the upper right corner of an email. Customize these to include the actions you take most often and save yourself time when processing emails.

These options are under the mail settings on the customize actions page.

Differences

Some things won’t work the same way in the new Outlook.

Read/unread quick filters

The read/unread quick filters will be gone from the top of the inbox. To quickly filter for unread email, you will need to click on the funnel icon at the top right of your emails list.

Dragging and dropping email

You can’t drag and drop emails to the calendar or task icons to quickly create a new appointment or task. You can, however, drag and drop emails to the “My Day” panel to create new appointments and tasks.

Tasks replaced by To Do

With the new Outlook interface, tasks will no longer be available. They will be replaced with To Do. To Do offers task management with a more modern interface, including a mobile app for easy task list management on your phone.

With To Do, you can easily create shared task lists, delegate tasks to others, and add tasks to your “My Day” list.

Your Outlook tasks will also automatically be brought into To Do, so you don’t have to worry about missing anything with the transition.

Shared inboxes

If you use shared inboxes, you’ll discover you can no longer add those to your favorites lists. You can’t move them to the top of your folders list either. You’ll find your shared inboxes under a “shared with me” folder.

Consider assigning yourself a daily task or calendar appointment to remind yourself to check the shared inbox. Alternatively, you could set up a rule to forward all of those emails to your regular inbox, but neither of these options are ideal.

Focused inbox

The focused inbox works the same as before, but the on/off switch for it has been moved to the settings dialog under Mail.

Add-ins

Many traditional Outlook add-ins are “COM add-ins.” Things like your PDF editing software, document management system, and practice management system likely use COM add-ins to help you deal with emails faster.

COM add-ins are not supported in the new Outlook. Some software vendors have already made the switch to the newer, modern add-ins supported by the new Outlook. Others are actively working on a new add-in. A few are discontinuing support for their Outlook add-in.

Check with your preferred vendor to see when support will be available for the new Outlook.

Get ready

Whether you’re excited for a more modern interface or dread having to make the change, the new Outlook interface is eventually coming to you. Microsoft will continue to develop the interface, making improvements and adding in new features. Keep an eye on it, because we’ll all be forced over to it eventually.

Jeffrey S. Krause is senior consultant at Affinity Consulting Group LLC.

Or worse, your desktop computer shuts down, losing that project you’ve spent hours on. 

With winter weather on the horizon, now is the time to ensure you and your staff have everything needed to continue serving clients during power outages. 

Where to start 

In 2022, the average electric customer in the United States endured two power outages lasting a combined five-and-a-half hours.¹ In Missouri specifically, power providers averaged a little more than one interruption per customer and a total loss per interrupted customer of slightly more than two hours.² Those numbers include major events such as winter storms and tornados. 

When it comes to protecting yourself and your firm from power outages, you should apply a cost-benefit analysis. For example, if your only consideration is ensuring your laptop remains operational during an outage, adding a generator at your firm or house is probably overkill since laptop and cell phone batteries can outlast most power outages. Plus, many cell phones have the option of turning into a hotspot that can provide temporary internet access. 

On the other hand, there are plenty of critical devices that will not have power during an outage. Network connections, workstations, servers, and peripherals such as monitors and printers need continuous power to operate. 

Making the best decisions for you and your firm about backup power requires three questions: 

– What do you need to keep devices running during a power outage? 
– How long do you need them to run? 
– How much are you willing to spend? 

There is also one additional consideration you must remember: Power surges are bad for all electronics. When the lights flicker or the power comes back on after an outage, there are typically surges in power. When making decisions about backup power, you’ll want to ensure it protects against power surges. 

Power on the go 

When you are on the road, your backup power needs are limited. As mentioned earlier, your laptop and phone will outlast most power outages, and the combination of the two provides internet access if you have a cell signal and hotspot. However, both will need to charge eventually. If you will be away from any source of power for an extended period, you will need a portable battery. 

A battery that can charge a cell phone may not be the best when charging a laptop. Most portable backup batteries are like a one-gallon gas can; it won’t fill the tank but will get you out of a jam. Read the specifications of each backup battery you research but understand that every laptop is different, and it is difficult to predict how long any given battery will take to charge your laptop. 

Surge protection on the go is also easy. Consider a small power strip that includes surge protection, two to four outlets, and several USB connections. 

Options when working from home 

When working from home, there is much more to consider. Once again, your laptop and cell phone may be enough to keep you working through most outages. However, if you are using a workstation or if you have a setup that includes things like a USB dock, multiple monitors, soft phone (aka voice over internet protocol, or VoIP), or any other peripherals, you need to keep those running during an outage. In addition, you need to keep any internet-related devices operating. This includes your modem, router, Wi-Fi extenders, and a network hub if your home is cabled. 

This is where a cost-benefit analysis really comes into play. You can keep these devices running for at least a short time with an uninterruptable power supply (UPS). A UPS acts as power strip and surge protector but also has a battery backup. There are many options if you search online for “uninterruptable battery backup.” 

The hard part is figuring out what you need. Most units are designated as something like 1500VA, which indicates the voltage and amps. What you need to know is the amp hours of the battery and the wattage use of the items you plan to connect to it. 

Do the math and determine how many watts of devices you will be plugging into the UPS. For example, a desktop computer might use 75-250 watts, while a 22-inch monitor typically consumes anywhere from 20-45 watts. 

Next, determine the watt hours of the battery. A 12-volt, 9-amp battery stores 108-watt hours. That means you can power 108 watts of devices for one hour, 216 watts of devices for 30 minutes, etc. In other words, no UPS is going to run forever on battery power, but 30 minutes may be more than enough to outlast most outages and certainly enough time to save your work before powering everything down. 

Follow the same process to keep your internet-related devices running on a separate UPS. 

Lastly, consider surge protection. You can buy individual surge protectors or have a whole-house surge protector installed. 

Protecting your office 

If you lease space, you have limited options when it comes to backup generators. Your landlord may already have it covered. If not, they are unlikely to invest in a generator for just your space. On the other hand, if you are the only tenant, they may be open to the idea if you are willing to contribute to the cost or endure an increase in rent. 

Regardless, there are things that can and should be protected. This starts with your internet connection and should include any other networking devices and your server, if you still have one. All these devices should be on a UPS capable of powering them at least as long as it takes to properly turn them off. 

Consider smaller UPS devices for your desktops to ensure you can properly save things and power down. The interruption of a power outage is bad enough without losing a critical document you have been working on for the past hour. 

Conclusion 

Power outages may be infrequent and short-lived. However, they tend to come at the worst possible time and may prevent you from getting that important document completed and filed. With a few simple precautions, you can protect yourself against most outages. Or, if your situation warrants, you can spend some money to keep the lights on and continue working through much longer interruptions.

Endnotes 
¹ U.S. electricity customers averaged five and one-half hours of power interruptions in 2022, U.S. ENERGY INFORMATION ADMINISTRATION (Jan. 25, 2024), www.eia.gov/todayinenergy/detail.php?id=61303. 
² Annual Electric Power Industry Report, Form EIA-861 detailed data files, U.S. ENERGY INFORMATION ADMINISTRATION (Oct. 10, 2024), www.eia.gov/electricity/data/eia861.

Collaboration happens in two forms: asynchronous and real-time. We generally prefer asynchronous communication — text messages, emails, and perhaps voicemails — over real-time communication. How often do you text or email from your phone compared to making actual calls in a given day?  

Different forms of collaboration may be helpful for different areas of your practice. If something isn’t going smoothly, consider switching the type of collaboration you use depending on the situation. 

Asynchronous  

Asynchronous collaboration allows people to work from anywhere at any time. Early birds can collaborate with night owls. New Yorkers can collaborate with counterparts in the Far East. Time zones don’t matter. Here are tips to make asynchronous collaboration better:  

Basic document sharing  

1. If you’re not on the paperless bandwagon, start by getting a scanner to turn important papers into documents that can be shared easily. After scanning the papers, programs like Adobe Acrobat or ABBYY FineReader can convert a PDF to an editable Microsoft Word document.  

2. To work together over the internet, your document must be accessible to your collaborator. The easiest sharing platform is Dropbox, although there are plenty of competitors in this market. In fact, Apple (iCloud Drive), Google (Google Drive), and Microsoft (OneDrive) all offer free space; they just can be a bit more challenging to share from.  

3. Apple Pages, Google Docs, and Microsoft Word all offer free web-based versions of their respective word processors. If your collaborator doesn’t have the same word processor as you, they can access these free versions to edit the document you share, although they must create an account with the vendor if they don’t already have one.  

4. Each person can now edit the document.  

Share information rather than a document  

1. Microsoft’s OneNote is the most cross-platform of the note-taking or “everything bucket” solutions. Create a notebook, share it with your collaborator, and either of you can put almost anything you can imagine in there: lists; checklists; images (whose in-image text will be scanned so you can search for it); other documents like Word, Excel, or PDF files; and even handwritten notes from an Apple Pencil or Surface Pen. OneNote is available on all the major platforms (Windows, Mac, iOS, and Android). There’s even a web-based version if you’re collaborating with someone who doesn’t want to download the free app.  

2. All the major web-based practice management platforms offer some version of a client portal. But don’t be limited by the word “client”. These portals are shared spaces where anyone you allow can see and interact with information you choose to make available from your practice management program. Clio lets you share just about anything through the portal. Clients can even upload documents and send you secure communications through it. Cosmolex offers a similarly rich portal experience. Actionstep’s portal, on the other hand, is restricted to document sharing. Visit the Missouri Bar’s Law Practice Management site to get an idea of features, comparisons, and considerations regarding practice management. If you decide to buy, the bar’s Member Benefits page provides discounts for many top contenders.  

Real-time collaboration  

If you and your collaborator need to work on the same document simultaneously, consider two factors: how tech-savvy your collaborator is and how complex the shared document is (e.g., complex formatting, lots of images, etc.) 

Technophobe collaborators  

If the person you’re sharing the document with is not a technophile, the easiest thing to do is a web meeting where one of you opens the document and shares your screen. You can even grant keyboard and mouse control to your fellow participant so they can edit and navigate the document while the document remains on your computer.  

All the big web meeting platforms support screen and control sharing, though many require a paid account. If you’ve made it this far without a paid account at Zoom, WebEx, or similar, this LPM comparison chart will help you choose one.  

And once you’ve made that choice, read up on video conferencing professionally and get a pair of good headphones.  

Although you don’t need it for mere document collaboration, I recommend getting a high-quality webcam. The ones built into laptops stink, a fact confirmed by no less than the Wall Street Journal. I have and like Logitech’s Brio Ultra HD Pro Business. Despite the alphabet soup of a name, it works wonderfully and has a built-in microphone and privacy shutter (great if your office doubles as a bedroom). 

Complex documents

Complex documents share best in their native format. In the legal world, this usually means Microsoft Word, Excel, and PowerPoint. Luckily, sharing is fairly easy for these programs, and your collaborator doesn’t have to own (or subscribe to) Microsoft Office. Here are the steps to share a Microsoft Office document via OneDrive (or SharePoint) so others can edit it at the same time and see changes as they happen:  

1. Save your document to OneDrive  

2. Open the document via the Office desktop app or Office web app.  

3. Click the “Share” button at the top right of the Office app.  

4. Enter the email address of your collaborator. Type a message if you like. Then click “Send.”  

5. As an alternative to the step above, you can choose “Copy link” if you’d prefer to send the person a link via a text message or other means. It’s just a web link.  

6. The collaborator receives a link they can click to access and edit the document.  
7. When you both have the document open simultaneously, you will see a circle with initials of others in the document in the top right of the app or web app window. Clicking on a pair of initials reveals what page of the document that person is currently viewing or editing.  

Mix and match  

Depending on the information you’re sharing and the tech skills of your collaboration counterparts, one method may make more sense than another. In my experience, older clients prefer web meetings where you control everything as they comment or dictate text. Most other folks prefer asynchronous document sharing because, like text messages or emails, they can review the documents at a time convenient to them.  

You probably remember your first laptop. You may also remember how difficult it was to use a laptop as your primary workstation. The laptop’s size limited the number of outputs it supported. The solution? A docking station. I still recall snapping my laptop into a docking station designed specifically for that laptop, which was quite expensive and fixed in one place. Well, enough about the “good old days.”

Docking stations are simple devices that expand how you can use almost any computer, whether a workstation or laptop. They also work with many tablets such as a Microsoft Surface, which uses a Windows interface. As the name implies, the main requirement is a USB port. Once connected, a USB dock increases the number and type of peripherals you can connect. For example, the dock I am using as I write this is an ICY BOX USB 3.0 Universal Docking Station, available at Amazon for around $100. It works with either Windows or Mac. It provides HDMI, ethernet, USB, and microphone ports, among others.

In addition to the connections this device provides, the portability and flexibility cannot be overstated. It is essentially plug and play, meaning a desktop, laptop, or MacBook Air can be connected with a single USB 3.0 connection. I have another small USB dock I carry in my laptop bag, allowing me to connect to various devices I might encounter on the road. While most people use these devices to expand a laptop or tablet, they work just as well with workstations, especially when it comes to adding additional monitors.

Docking stations come in many shapes and sizes. If looking for one, I suggest focusing on two things, starting with the video connections. Make sure the dock offers outputs to any monitors you wish to connect. Second, and probably most important, confirm what type of connection it uses. More and more of these devices are connecting via USB-C, so make sure your laptop supports this. If it does not, go with a USB 3.0 model. You may have to shop around a bit to find the right combination of video outputs and connection type.

USB docking stations are a low-cost way to expand your productivity. Depending on the number and type of connections, you can expect to pay anywhere from $50 to $200, with most falling in the $125 range. They provide an easy way to attach additional peripherals to any computing device and utilize those peripherals with multiple devices.

1. Use Rules to automatically sort incoming and outgoing email 

Through Outlook Rules, you can automatically sort email into different folders. From the Home tab, click on Rules. From here, you can create rules based on various criteria, such as the sender, the subject, or specific words in the body of the email. 

2. Create Quick Steps to process email with a single click 

The Quick Steps feature combines multiple actions into a single click. For example, you can create a quick step that forwards an email to your assistant, moves that email out of your inbox, and marks it as read with a single click. On the Home tab, click on the dropdown arrow in the Quick Steps gallery. From here, you can create and manage your Quick Steps. 

3. Search for emails 

Outlook's search function helps you quickly find specific messages in your inbox. Once you click in the Search Bar, you can take advantage of all the options on the Search ribbon, such as searching by sender, subject, whether the email has attachments, and more. 
With Outlook’s robust search functionality, you might be able to stop organizing emails into subfolders all together. 

4. Use AutoText to insert commonly used text 

AutoText entries are pre-written (and pre-formatted) snippets of text that you can insert into your emails with just a few clicks. They can be used for answers to commonly asked questions, instructions, lists of attached documents, and more. 
Start by typing and formatting the new entry in a new email. Select the text. On the Insert ribbon, under Quick Parts, select AutoText, and Save the Selection to the AutoText Gallery. Then, you just need to select the entry from the gallery to insert it into a new email. 

5. Use Flags to remind you to follow up on emails 

You can use flags in Outlook to help you remember to follow up on emails. Right-click on the email in your inbox. Under follow up, select when you plan on following up. You can then filter or sort your inbox by flags to quickly see emails you flagged. 

6. Use Categories to organize emails 

Categories can help you organize your emails into different groups and color code them. This can be helpful for quickly sorting and filtering email. You can create custom categories to meet your needs. Categories are also useful for color-coding calendar appointments, tasks, and contacts. 
Right-click on the email in your inbox. Under Categorize, select the desired Category. To edit the existing Categories, select All Categories. 

7. Filter your email 

Filters are a great way to quickly show only unread emails, email categorized in a certain way, or flagged emails. From the View ribbon, click on View Settings. Then click on Filter to set up a filter. You can save a filter from the View ribbon, by clicking on Change View, and Save Current View as a New View. 

8. Customize your view 

Outlook allows you to customize the way that your inbox is displayed. Decide which columns to show, sort your email in a variety of ways, and add your calendar or tasks to your inbox. All the settings related to how your inbox appears can be found on the View ribbon. 

9. Work faster with keyboard shortcuts 

Keyboard shortcuts can help you work more efficiently in Outlook. Commonly used keyboard shortcuts include: 
Delete key – deletes the selected email/appointment/task 
Ctrl + F – forward 
Ctrl + R – reply 
Ctrl + N – new email 
Ctrl + 1 – switch to email 
Ctrl + 2 – switch to calendar 

10. Clean up your inbox automatically 

Your mailbox has a limited amount of space. (Go to Info under the File menu to see how much space you have remaining.) If your mailbox is starting to fill up, you can free up some space by archiving old emails. Archived emails are stored in an Outlook data file (.pst) on your computer and are no longer visible in your inbox. 

You can set up automatic archival rules on a folder-by-folder basis. Right-click on a folder and go to Properties to access its AutoArchive settings. 
Taking control over your inbox is key to a productive and stress-free workday. Take a deep breath, grab a cup of coffee, and get ready to take control of your inbox. Once you have control of your inbox, you’ll be able to even better serve your clients by focusing on more important tasks at hand. 

Scott E. Vincent is the founding member of Vincent Law, LLC in Kansas City.

Labeled “Protect your clients, protect yourself,” this year’s annual campaign included forums and several news releases by the IRS.¹ 

The news releases focus on the concern that tax and legal professionals are prime targets of criminal syndicates that either trick or hack their way into professionals’ computer systems to access client data. Even when client data is stored in a secure platform, such as the cloud, lack of strong authentication can make information vulnerable. For example, in the tax system context, identity thieves use stolen data with real financial information to file fraudulent tax returns that are then difficult for the IRS and the states to detect. 

The IRS emphasizes tax and legal professionals need to focus on data security fundamentals and watch for emerging vulnerabilities, as well as new updates involving multi-factor authentication and the latest requirements for a Written Information Security Plan. The campaign highlights a series of actions that tax and legal professionals can take to better protect their clients and themselves from data theft. 

Create a security plan 

The Written Information Security Plan, or WISP, is an “easy-to-understand document developed by and for tax and industry professionals to keep customer and business information safe and secure.”² IRS Publication 5708 provides guidance and sample language for creating a WISP. The IRS also notes that the Federal Trade Commission requires a WISP to keep customer data safe. See IR-2024-208 for more details. 

Understand the different phishing scams 

Tax and legal professionals are “common, everyday target[s] of phishing scams designed to trick the recipient into disclosing personal information such as passwords, bank account numbers, credit card numbers, or Social Security numbers.”³ 

Phishing/Smishing 

“Phishing emails or SMS/texts (known as ‘smishing’) attempt to trick the recipient into clicking a suspicious link, filling out information, or downloading a malware file. Often phishing attempts are sent to multiple email addresses at a business or agency increasing the chance someone will fall for the trick.”⁴ 

Spear phishing 

In some phishing scams, potential scammers identify potential victims and deliver more realistic emails, commonly referred to as a “lure.” “These types of scams can be trickier to identify since they don’t occur in large numbers. They single out individuals, can be specialized, and make the email seem more legitimate.”⁵ 

For example, “fraudsters pretend to be real taxpayers [or clients] seeking tax [or legal] help. They use emails to try to get sensitive information or gain access to a practitioner’s client data. In these fake ‘new client’ schemes, the fraudster can send a malicious attachment or include a link to a site that the tax [or legal] professional thinks they need to access to obtain the supposed new client’s [… sensitive] information. But in reality, the site is collecting information from the [… professional], such as their email and password, or loading [malicious software] onto the [… professional’s] computer to gain access to their computer or system.”⁶ 

Clone phishing 

A newer type of phishing scam “clones a real email message and resends it to the original recipient pretending to be the original sender. The new message will have either an attachment that contains malware or [a] link that tries to steal information from the tax [or legal] professional or recipient.”⁷ 

Whaling 

“Whaling attacks are very similar to spear phishing, except these attacks are generally targeted to leaders or other executives with access to secure large amounts of information at an organization or business. Whaling attacks can also target people in payroll offices, human resource personnel, and financial offices.”⁸ 

Know the tell-tale signs of identity theft 

Many “professionals who report data theft to the IRS also say they were unaware of signs that a theft had already occurred.”⁹ Signs tax and legal professionals should watch for include “multiple clients suddenly receiving suspicious IRS letters requesting confirmation that they filed a tax return; tax professionals seeing e-file acknowledgements for far more tax returns than they filed; and tax pros’ computer cursors moving seemingly on their own.”¹⁰ See IR-2024-193 for more details. 

Utilize multi-factor authentication 

Lawyers and tax professionals should use multi-factor authentication, or MFA, to even better protect their clients’ information. The FTC even requires all tax professionals use MFA to protect clients’ sensitive information. “The June 2023 change mandates MFA to strengthen account security by requiring more than just a username and password to confirm an identity when accessing any system, application, or device.”¹¹ 

“The extra layers of different authentication factors include something only a user knows, like a username and password; something they have, like a token or random number sequence sent to their cell phone; or something unique, like biometric information. These provide extra assurance that a […] client, not an impostor, is gaining access.”¹² 

Understand the “Security Six” protections 

Here are six important security basics that form a critical defense against identity thieves and hackers: 

1. “Anti-virus software scans computer files or memory for certain patterns that may indicate there’s […] malware – on the device. Anti-virus vendors find new issues and update malware daily. This is why it’s important for users to install the latest updates of the software.”¹³ 

2. “Firewalls provide protection against outside attackers. The firewall shields computers and networks from malicious or unnecessary web traffic. This helps prevents malicious software from accessing the user’s system.”¹⁴ 

3. “Multi-factor authentication adds an extra layer of protection beyond a password. The returning user enters credentials like a username and password. Then, there’s another step, such as entering a security code, token or a biometric like a fingerprint.”¹⁵ 

4. “Backup software or services should be routinely used by tax [and legal professionals] to back up critical files on their computers and hard drives to external sources. This is helpful not just to protect against a cyber-attack but is also helpful in case of device failure or a natural disaster.”¹⁶ 

5. Drive encryption software, also known as disk encryption, “transforms data on the computer into protected files that are unreadable to outsiders. This means only people who are authorized to access the data can do so.”¹⁷ 

6. Virtual Private Network, or VPN, is important since many firms’ employees occasionally connect to unknown networks or work from home. “This allows for a more secure connection. A VPN provides a secure, encrypted tunnel to transmit data between a remote user over the internet and the company network.”¹⁸ 

Conclusion 

The “Protect your clients, protect yourself ” campaign highlights several important concerns for professionals relating to client and firm data security. Importantly, the current series also identifies some key federal requirements, including multi-factor authentication and 
implementation of a WISP, that may apply to your legal practice.

Endnotes 

1 Protect Your Clients; Protect Yourself — Summer 2024, INTERNAL REVENUE SERVICE (Aug. 27, 2024), https://www.irs.gov/tax-professionals/protect-your-clients-protect-yourself-summer-2024. 

2 IR-2024-180. 

3 Id. 

4 IR-2024-188. 

5 Id. 

6 IR-2024-183. 

7 Id. 

8 Id. 

9 IR-2024-180. 

10 Id. 

11 IR-2024-201. 

12 Id. 

13 IR-2024-218. 

14 Id. 

15 Id. 

16 Id. 

17 Id. 

18 Id. 

William C. Martucci, who holds an LL.M. in employment law from Georgetown University in Washington, D.C., practices globally in complex class action (employment discrimination and wage and hour, including California) and EEOC litigation. Chambers notes “Bill Martucci is worth having on any dream team for employment litigation and policy issues.” His jury work has been featured in The National Law Journal. He is listed in the Euromoney Guide to the World’s Leading Labour and Employment Lawyers and The Best Lawyers in America for Employment and Business Litigation. He teaches multinational business policy and the global workplace at Georgetown University.

Burcu Erbaz defends clients in business and employment litigation matters. She graduated first in her class at the University of Missouri-Kansas City School of Law, where she was on the editorial board of the UMKC Law Review. She also served as a judicial intern in the U.S. District Court for the Western District of Missouri, conducting legal research and drafting memoranda.

Minha Jutt represents clients in business litigation matters, including complex commercial disputes, restrictive covenants and trade secrets, and design and construction. Her experience extends to all stages of litigation, ranging from initial client counseling and fact investigation to dispositive motion practice to preparation for appeal.

The integration of AI in human resources systems increased efficiency, reduced bias, and enhanced decision-making processes. However, it also raised significant ethical and practical concerns. 

This article explores the multifaceted role of AI in these critical employment processes, examining both its benefits and potential drawbacks along with legal landscapes from around the world and the U.S., and some suggestions for Missouri’s evolving legal framework.

What is AI, and how does it impact the global workplace?

Employers may use artificial intelligence for various tasks in the realm of human resources such as recruitment, hiring, promotions, and even termination.

Recruiting¹

Recruiting is one of the primary areas where AI has made a substantial impact. Traditional recruiting methods often involve a significant amount of manual work, from sifting through resumes to scheduling interviews. AI can automate many of these tasks, making the process faster and more efficient. AI-driven tools can parse through thousands of resumes in a fraction of the time it would take a human recruiter. These tools use natural language processing (NLP) to identify relevant skills, experiences, and qualifications, ensuring that only the most suitable candidates are shortlisted.

AI-powered chatbots² are increasingly used for initial candidate engagement. These chatbots can answer common questions, provide information about the company and the position, and even conduct preliminary assessments. In addition to saving time for recruiters, this also enhances the candidate experience by providing prompt responses.

AI can leverage predictive analytics to assess a candidate’s potential fit within a company. By analyzing data from previous hires, AI can identify patterns and characteristics that predict success in a given role. This can help recruiters make more informed decisions and improve the quality of hires.

Promoting³

AI can also play a significant role in promotion decisions within organizations. Traditional promotion processes can be subjective, often influenced by unconscious biases and limited visibility into an employee’s overall contributions. AI offers a data-driven approach that can help mitigate these issues.

AI systems can analyze vast amounts of performance data to provide a comprehensive view of an employee’s contributions. This includes quantitative metrics such as sales numbers, project completions, and qualitative assessments from peer reviews and feedback. By objectively evaluating performance data, AI can help identify employees who consistently outperform and are ready for promotion.

AI can also perform skill gap analysis to determine whether employees possess the necessary skills for higher-level roles. By mapping current skills against those required for promotion, AI can identify areas where employees need development, helping organizations create targeted training programs to prepare employees for advancement.

One of the most significant advantages of using AI in promotion decisions is its potential to reduce bias. AI systems can be designed to focus solely on performance data, eliminating factors such as race, gender, and age from consideration. However, engaging AI in such roles is a double-edged sword. It is crucial to ensure that the data used to train these AI systems is free from historical biases to prevent perpetuating existing inequalities.

Termination⁴

The use of AI in employee termination is perhaps the most controversial aspect of AI in human resources. While AI can provide data-driven insights that inform termination decisions, it also raises significant ethical and legal concerns.

AI systems can continuously monitor employee performance, providing real-time feedback and identifying underperformance issues early. This can lead to more proactive management interventions, such as additional training or role adjustments, potentially preventing the need for termination. AI can also analyze behavioral data, such as communication patterns, collaboration metrics, and engagement levels, to identify employees who may be disengaged or at risk of leaving. This information can help managers take preemptive action to address underlying issues or make informed termination decisions when necessary.

Foreseeable risks of discrimination

Disparate treatment and disparate impact

Despite its potential benefits in human resources, AI tools do not come without the foreseeable risks of discrimination. In employment, AI is a double-edged sword; its output is only as good as its input — meaning that AI’s outcomes reflect the algorithm written by its programmers and the data on which the algorithm relies. If a programmer uses the current pool of employees as its data pool, for example, the algorithm will apply the employer’s existing biases and preferences in screening and selecting applicants. The algorithm could disfavor attributes that were not represented in the current pool of employees, which may risk a disparate impact if the existing pool is not diverse. Or, if a programmer defines metrics of success on criteria that disfavor a protected group, such as certain extracurricular activities, the AI system may screen for applicants who meet those characteristics.

A programmer might not avoid the risk of discrimination by removing protected characteristics from the equation, however, as there still remains a risk of disparate impact. When AI tools are programmed with high volumes of data, they may make selections based on proxies for protected characteristics. For example, an algorithm may pose a risk of race discrimination by using proxies for race such as residential zip code, languages spoken, membership in race-based extracurricular or professional organizations, or educational institutions attended. In evaluating video interviews, an algorithm may screen out applicants based on arbitrary characteristics including hand placement, pose, gestures, and tone, potentially screening out those with certain disabilities^.5 AI tools may also make inferences based on protected characteristics. These choices may pose a risk of disparate treatment when a proxy is used to disfavor a protected group. And even when these choices might not rise to the level of disparate treatment, they may cause a disparate impact when the disfavored trait correlates with protected characteristics in an unexpected way.

The use of AI in advertisements poses an additional risk of discrimination. Title VII of the Civil Rights Act makes it unlawful for employers to publish advertisements that “indicate a preference, limitation, specification or discrimination” based on a protected characteristic including race, color, religion, sex, and national origin.⁶ The Age Discrimination in Employment Act (ADEA) contains a similar prohibition regarding age.⁷ An employer may run afoul of these provisions, for example, by intentionally targeting advertisements that either directly or by proxy exclude members of a protected group. Yet, as with hiring, AI tools may target even facially neutral advertisements in disparate ways. If an employer seeks to reach a broad audience but a vendor targets advertisements at certain groups, it may result in liability for the employer.⁸

Finally, transparency affects the risks of litigation. AI tools pose a “black box” problem in which the tool masks the exact details of the internal processes, including decision-making. The lack of transparency can blur evidence of discrimination, effectively restricting disparate impact claims.

Who can be liable?

Vendor liability is another factor in the risk equation. An open question remains as to whether a software developer may be liable for violations of employment law when their AI tools produce biased outcomes. Generally, employers are liable for violations of employment law committed by their vendors.⁹ Under a recent guidance from the U.S. Equal Employment Opportunity Commission, an employer may be liable if it grants the vendor authority to act on the employer’s behalf, administers the selection procedure, or relies on the results of a selection procedure that an agent administers on its behalf.¹⁰ Under the EEOC’s interpretation, an employer cannot evade liability for decisions made using tools designed or administered by another entity, such as a software vendor. The EEOC further suggests that an employer may be liable for discriminatory decisions even if a vendor represents that the tool does not pose a risk of discrimination.

Another interesting, unexplored issue arises when a vendor actively deploys its AI tool to facilitate bias. If a vendor exercises control over decision-making to recommend or “bump” certain prospective candidates, applicants, or opportunities, it may have enough direct control to be treated as an “employment agency” under Title VII. In other instances, a vendor may not have enough direct control over decision-making to be liable under Title VII.

Case illustration: Mobley v. Workday, Inc.¹¹

A recent case filed in the Northern District of California addresses the questions of vendor liability and disparate impact in the context of AI tools. Derek Mobley alleged that Workday, Inc.’s algorithm-based applicant screening tools discriminated against him and others similarly situated based on race, age, and disability. Workday filed a motion to dismiss on the basis that it is not a covered entity under Title VII, the ADEA, and the Americans with Disabilities Act. Hon. Rita Lin denied the motion in part, holding that Mobley had plausibly alleged that Workday acted as an agent.

Based on the allegations in the First Amended Complaint, Lin determined that Workday’s customers delegate traditional human resources decisions to the algorithmic decision-making software provided by Workday, including rejecting applicants, such that Workday acted as an agent. In his First Amended Complaint, Mobley alleged that Workday’s software does not merely implement the selection criteria set forth by employers without any input from Workday. Rather, the software participates in the selection procedure by recommending certain candidates and rejecting other candidates. Mobley alleged that he received emails in the middle of the night notifying him that his applications were rejected, which Lin wrote “g[ave] rise to a plausible inference that the decision was automated.” Pointing to these allegations, Lin wrote that Workday’s actions, including “[e]valuating and dispositioning candidates are at the core of the traditional employment functions that the anti-discrimination laws seek to address.”

This interpretation of vendor liability expands the potential liability for companies that create and deploy AI tools used in employment. Under this interpretation, such companies may not be able to simply escape responsibility for biased outcomes yielded by their products by claiming they are just providing a tool. If that tool performs traditional employment functions such as screening applicants, or if the tool participates in the decision- making process by “bumping” particular candidates and rejecting others, the company may be liable as an agent of the employer. Furthermore, this decision may encourage similar lawsuits against AI developers and employers, leading to increased litigation in this area. The ruling provides a pathway for challenging AI-based employment practices under existing anti-discrimination laws.

Ultimately, Lin’s decision in Mobley v. Workday, Inc. is likely to impact the legal landscape surrounding AI in employment. It emphasizes that AI cannot operate in a legal vacuum and that developers and users of AI tools may be held accountable under traditional anti-discrimination laws. This decision could be a catalyst for more stringent regulation and ethical standards in AI development, particularly in areas with significant human impact, such as employment.

Key legislative and regulatory steps around the world and the U.S.

The integration of AI into employment decisions is a rapidly evolving field. Different jurisdictions are grappling with the ethical, legal, and practical implications of AI in these processes, leading to a variety of legislative and regulatory responses.

Global reaction to AI usage in employment

The European Union has taken a proactive approach in regulating AI, with a strong focus on transparency, accountability, and non-discrimination through the AI Act,¹² which includes provisions specifically targeting employment, and the General Data Protection Regulation¹³ (GDPR), which indirectly impacts the use of AI in employment with its strict data protection rules. Post-Brexit, the United Kingdom has maintained a strong regulatory framework that aligns closely with the EU’s principles but is developing its own AI-specific rules through the Equality Act of 2010¹⁴ and the Data Protection Act of 2018,¹⁵ which complements the EU’s GDPR.

The Canadian Human Rights Act and the Personal Information Protection and Electronic Documents Act provide a framework that addresses discrimination and privacy concerns related to AI in employment.¹⁶ Australia’s approach combines existing anti- discrimination laws with emerging guidelines on AI ethics.¹⁷ China has issued various guidelines and standards for AI, emphasizing the ethical use of technology and promoting transparency, data protection, and preventing algorithmic discrimination.¹⁸

To address the concerns caused by AI usage in employment decisions, several jurisdictions within the United States have enacted or proposed legislation and regulations to govern the use of AI in this field. Illinois was one of the first states to take legislative action specifically targeting AI in employment by enacting the Artificial Intelligence Video Interview Act in 2019, requiring employers to inform applicants that they will be exposed to AI and provide an explanation of how the AI works and what characteristics it evaluates.¹⁹ New York City’s Local Law 144, which took effect in 2023, mandates annual bias audits of automated employment decision tools and public disclosure of these audit results^.20 The District of Columbia has proposed the Stop Discrimination by Algorithms Act, which aims to prohibit discrimination based on protected characteristics in automated employment decisions.²¹ Maryland’s Facial Recognition Services Act, effective since October 2020, impacts employers using facial recognition technology in hiring by requiring consent from candidates and disclosure of how the technology will be used and the data it collects.²²

At the federal level, there have been significant discussions and proposed regulations, although no comprehensive legislation has been passed. Key initiatives include the Algorithmic Accountability Act²³ proposed in Congress, which would require companies to conduct impact assessments, and guidance from the EEOC²⁴ on how existing anti-discrimination laws, such as Title VII, apply to AI in employment decisions.

Missouri’s current legal landscape for the use of AI in employment

In Missouri, as in many jurisdictions, the legal framework surrounding AI usage in employment decisions is evolving, albeit rather slowly. As of 2024, Missouri does not have specific state laws addressing the use of AI in employment decisions. However, companies utilizing AI must navigate existing federal and state employment laws that indirectly impact AI usage, such as Title VII. Employers in Missouri must ensure that AI systems used in recruiting, hiring, or promotion do not result in disparate treatment or disparate impact on protected classes. AI systems must also accommodate individuals with disabilities under the existing ADA.²⁵ Employers must ensure that AI tools do not screen out qualified individuals with disabilities and must provide reasonable accommodations as required. The ADA’s requirements for accommodating individuals with disabilities in the context of AI are covered by the U.S. Department of Justice and EEOC guidelines. Similar to federal anti-discrimination laws, the Missouri Human Rights Act²⁶ prohibits discrimination based on race, color, religion, national origin, sex, ancestry, age, disability, and familial status. AI systems must comply with these provisions to avoid discriminatory practices.

While Missouri currently lacks specific legislation on AI in employment, there have been discussions and proposals at both the state and federal levels that could impact future regulations. There have been initial discussions among state legislators about the potential need for regulations specific to AI in employment. These discussions are driven by concerns over transparency, bias, and accountability in AI systems. Although no formal bills have been introduced, it is likely that future legislation will address these issues.

Missouri employers must also keep an eye on federal legislative trends. The Algorithmic Accountability Act²⁷ proposed in Congress seeks to mandate transparency and accountability for automated decision-making systems, including those used in employment. This act would require companies to conduct impact assessments of AI systems to identify and mitigate potential biases.

Missouri employers should also consider the EEOC’s 2023 guidance on the use of AI in hiring, emphasizing the need for employers to ensure AI tools comply with existing anti-discrimination laws.²⁸

Practical considerations for Missouri employers and steps for internal risk management

The use of AI in termination decisions must be approached with caution. There are significant legal and ethical implications, including concerns about transparency, accountability, and fairness. Organizations must ensure that their AI systems comply with employment laws and regulations and that employees understand how decisions are being made. Moreover, AI should be used as a tool to support human decision-making rather than replace it entirely, ensuring that termination decisions are made with empathy and considerations of individual circumstances.

So, when designing or selecting AI tools to screen applicants, employers must evaluate whether those tools unlawfully screen out individuals based on a protected characteristic. Key stakeholders and decision-makers should understand the data, assumptions, and programming used by the vendor and programmer in developing the AI tool. Employers should understand the data pool that the algorithm relies on, as well as any exclusions and limitations of the data. Employers must carefully determine which factors should be used to measure success in applicants, including skills, education, and experience necessary for job performance. Under federal law, employers may use standards for job qualification that are related to the position and consistent with their business necessity. But employers must provide requested reasonable accommodations that will allow applicants with disabilities to meet those standards, unless doing so would be an undue hardship to the employer. If a vendor represents that the AI tool will likely result in lower rates of selection of a protected class, the employer should determine whether the decision-making criteria is consistent with its business necessity and whether any available alternatives may pose less of a risk of disparate impact.

While an audit does not eliminate litigation risk, employers should consider auditing the AI tools to ensure that algorithmic screening does not violate employment discrimination laws, to the extent that an audit is not already required by applicable law.²⁹ Employers should review whether the vendor or programmer tested for disparate impact on protected characteristics, and whether testing is done periodically as data improves. Employers should consider assembling an internal team of qualified professionals to monitor the AI tools being used, including to redress any bias that may become apparent during oversight. 

Finally, an employer may allocate risk between it and the vendor through tailoring the parties’ contract. Employers should avoid using standard vendor form contracts that contain broad vendor-indemnity provisions. Employers should consider requiring that all vendors comply with employment law. Other considerations include choice-of-law provisions, venue provisions, and arbitration or alternative dispute resolution.

Suggestions for future Missouri legislation and/or regulation

To mitigate risk of unfair treatment of individuals based on race, gender, age, and other protected characteristics, it is crucial to implement robust regulations that ensure fairness and transparency in AI-driven employment practices. Below are several suggestions for regulating the usage of AI in employment decisions to avoid algorithmic biases.

Mandate algorithmic transparency³⁰

One of the primary concerns with AI in employment is the opacity of decision-making processes. Employers should be required to disclose the criteria and algorithms used in AI systems. This transparency allows for external auditing and ensures that the AI systems comply with anti-discrimination laws. Regular audits are also necessary to ensure compliance with fairness standards. By making these systems more transparent, stakeholders can better understand how decisions are made and identify potential biases.

Implement regular audits and bias testing³¹

Regular audits of AI systems can help identify and mitigate biases. These audits should be conducted by independent third parties to ensure objectivity. Additionally, bias testing should be performed during the development and deployment stages of AI systems. This involves testing the AI on diverse datasets to identify any discriminatory patterns or outcomes.

Ensure data diversity and quality³²

The data used to train AI systems must be representative of the diverse population it will impact. Biased data can lead to biased outcomes, so it is essential to use high-quality, diverse datasets. Employers should be required to assess and improve the quality of their training data continually.

Establish clear accountability and governance structures

To ensure responsible AI usage, companies should establish clear accountability and governance structures. This includes designating specific roles and responsibilities for overseeing AI ethics and compliance. An ethics committee or similar body can provide oversight and ensure that AI practices align with ethical standards and legal requirements.

Provide employee and candidate recourse mechanisms

Individuals affected by AI-driven employment decisions should have access to recourse mechanisms. This includes the ability to appeal decisions, request explanations, and correct inaccurate data. Ensuring that employees and candidates can challenge and seek redress for potentially biased decisions is crucial for maintaining fairness.

Promote ethical AI development and use

Promoting ethical AI involves creating industry-specific guidelines and standards for the responsible development and use of AI in employment. These guidelines should emphasize fairness, accountability, and transparency. Employers should be encouraged to adopt best practices and ethical frameworks for AI usage.

Regulating the use of AI in employment decisions is essential to avoid algorithmic biases and ensure fair treatment of all individuals. Implementing these measures can help create a balanced and fair environment where AI enhances decision- making in employment without perpetuating or amplifying existing biases. By mandating transparency, implementing regular audits, ensuring data diversity and quality, establishing clear accountability structures, providing recourse mechanisms, and promoting ethical AI development, legislators and regulators can help mitigate the risks associated with AI in the workplace. These measures will not only protect employees and candidates but also enhance the overall trust and effectiveness of AI systems in employment practices.

Conclusion

AI has the potential to revolutionize employment decisions, making processes such as recruiting, promoting, and terminating employees more efficient, objective, and data-driven. However, to fully realize these benefits, organizations must address the significant ethical, legal, and practical challenges associated with AI use. By adopting a thoughtful and responsible approach, organizations can leverage AI to enhance their HR practices while ensuring fairness, transparency, and respect for employee rights.

The legislative and regulatory landscape for AI in employment decision-making is complex and rapidly evolving. Jurisdictions around the world and in the U.S. are recognizing the transformative potential of AI while striving to mitigate its risks. Common themes include ensuring transparency, preventing discrimination, safeguarding privacy, and maintaining accountability.

Even though there have been discussions and proposals in Missouri that could create a foundation for future legislation or regulations, Missouri currently lacks specific legislation on AI usage in employment. This gap in Missouri’s legal framework leaves applicants and employees unprotected against companies using AI-driven technology in employment decisions, and employers vulnerable against litigation involving allegations of discrimination and bias. Missouri should catch up with other jurisdictions that have been more active in this area and enact multi-faceted laws to mitigate risks associated with AI in employment decisions.

Endnotes

1     Benjamin Laker, The Use of Artificial Intelligence in Recruiting: The Risks and Rewards, Forbes (July 19, 2021) (www.forbes.com/sites/benjaminlaker/2021/07/19/the-use-of-artificial-intelligence-in-recruiting-the- risks-and-rewards/); Ashwani Kumar Upadhyay & Komal Khandelwal, Applying Artificial Intelligence: Implications for Recruitment, 17 STRATEGIC HR REVIEW 255-58 (2018) (https://www.emerald.com/insight/content/doi/10.1108/SHR-07-2018-0057/full/html).

2     A computer program designed to simulate conversation with human users, especially over the internet.

3     Jeffrey Dastin, Amazon Scraps Secret AI Recruiting Tool That Showed Bias Against Women, Reuters (Oct. 10, 2018) (www.reuters.com/article/us-amazon- com-jobs-automation-insight-idUSKCN1MK08G); Manish Raghavan et al., Mitigating Bias in Algorithmic Hiring: Evaluating Claims and Practices, Proceedings of the 2020 Conference on Fairness, Accountability, and Transparency, 469–81, ACM DIGITAL LIBRARY (Jan. 27, 2020) (dl.acm.org/doi/10.1145/3351095.3372828).

4     Reuben Binns, Fairness in Machine Learning: Lessons from Political Philosophy, Proceedings of the 2018 Conference on Fairness, Accountability, and Transparency, 149-159, ACM DIGITAL LIBRARY (2018) (https://proceedings. mlr.press/v81/binns18a.html); Kolbjørnsrud, V., Amico, R., & Thomas, R. J., The Promise of Artificial Intelligence: Reducing Bias and Improving Performance, Harvard business review (https://hbr.org/2016/10/the-promise-of-artificial- intelligence).

5     Alex Engler, For Some Employment Algorithms, Disability Discrimination by Default, brookings (Oct. 31, 2019) (www.brookings.edu/articles/for-some-employment algorithms-disability-discrimination-by-default/).

6      42 U.S.C. § 2000e-3(b).

7     29 U.S.C. § 623(e).

8     Brittany Kammerer, Hired by A Robot: The Legal Implications of Artificial Intelligence Video Interviews and Advocating for Greater Protection of Job Applicants, 107 iowA l. rev. 817 (2022).

9     42 U.S.C. §§ 2000e(b), 12111(5)(A); 29 U.S.C. § 630(b).

10     Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (www.eeoc.gov/laws/guidance/select-issues-assessing-adverse-impact-software-algorithms-and- artificial#_ednref11).

11     No. 23-CV-00770-RFL, 2024 WL 3409146 (N.D. Cal. July 12, 2024).

12     Proposal for a Regulation Laying Down Harmonised Rules on Artificial Intelligence (Artificial Intelligence Act), EUROPEAN COMMISSION (ec.europa.eu/ newsroom/dae/document.cfm?doc_id=75788).

13     General Data Protection Regulation (GDPR), EUROPEN COMMISSION (gdpr-info.eu/).

14     Equality Act 2010, UK Government (www.legislation.gov.uk/ukpga/2010/15/contents).

15     Data Protection Act 2018, UK Government (www.legislation.gov.uk/ukpga/2018/12/contents/enacted).

16     Canadian Human Rights Act, JUSTICE LAWS WEBSITE (laws-lois.justice. gc.ca/eng/acts/h-6/); Personal Information Protection and Electronic Documents Act (PIPEDA), OFFICE OF THE PRIVACY COMMISSIONER OF CANADA (www.priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/the-personal-information-protection-and-electronic-documents-act-pipeda/).

17     Using artificial intelligence to make decisions: recommendations for AI regulation, AUSTRIALIAN HUMAN RIGHTS COMMISSION (humanrights.gov.au/our-work/rights-and-freedoms/publications/using-artificial-intelligence-make- decisions-recommendations).

18     China’s Approach to AI Governance, DIGICHINA (digichina.stanford.edu/ news/chinas-approach-ai-governance-key-documents-summary).

19     Artificial Intelligence Video Interview Act, IL Public Act 101-0260 (www.ilga.gov/legislation/publicacts/101/101-0260.htm).

20     Automated Employment Decision Tools, NYC Administrative Code, Local Law 144 (www1.nyc.gov/assets/dca/downloads/pdf/about/LL144. pdf); Local Law 144 of 2021, New York City Council (legistar.council.nyc.gov/ LegislationDetail.aspx?ID=4941574&GUID=5F9D9848-01F7-4D97-B68D- BB4AC1E5D6D4).

21     Stop Discrimination by Algorithms Act of 2021, DC Council (lims. dccouncil.us/Legislation/B24-0558).

22       Facial Recognition Services Act, Maryland General Assembly (mgaleg. maryland.gov/mgawebsite/Legislation/Details/hb1202?ys=2020rs).

23       H.R.2231 - Algorithmic Accountability Act of 2019 (www.congress.gov/ bill/116th-congress/house-bill/2231).

24       EEOC on AI in Employment, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (www.eeoc.gov/newsroom/eeoc-launches-initiative-artificial- intelligence-and-algorithmic-fairness).

25       Americans with Disabilities Act (ADA): [ADA National Network] (adata. org/factsheet/ADA-overview).

26       Missouri Human Rights Act (MHRA): [Missouri Commission on Human Rights] (labor.mo.gov/mohumanrights).

27       Algorithmic Accountability Act: [Congress.gov] (www.congress.gov/bill/117th-congress/house-bill/2231).

28       EEOC Guidance on AI: [EEOC Official Website] (www.eeoc.gov/).

29       Pauline T. Kim, Auditing Algorithms for Discrimination, 166 UNIV. PA. I. REV. online 189, 190 (2017); Anne Cullen, EEOC Stance In Bellwether AI Suit Raises Stakes For Vendors, lAw360 (Apr. 18, 2024) (“If your company uses software, computer systems, etc., created by someone else that discriminates, you will be on the hook, not the vendor,” according to a slide from the training, which was shared with Law360 by an attendee.”).

30       Barocas, S., Hardt, M., & Narayanan, A. FAIRNESS AND MACHINE LEARNING (2019). (fairmlbook.org); Pasquale, F., THE BLACK BOX SOCIETY: THE SECRET ALGORITHMS THAT CONTROL MONEY AND INFORMATION, Harvard University Press (2015).

31     Raji, I. D., & Buolamwini, J., Actionable Auditing: Investigating the Impact of Publicly Naming Biased Performance Results of Commercial AI Products, Proceedings of the 2019 AAAI/ACM Conference on AI, Ethics, and Society (2019); Fairness and Accountability Standards: Selbst, A. D., & Barocas, S., The Intuitive Appeal of Explainable Machines, FordHAM l. rev., 87(3), 1085-1139 (2018); Human Oversight and Intervention: Binns, R., Human Judgment in Algorithmic Loops: Individual Justice and Automated Decision-Making, ETHICS AND INFORMATION TECHNOLOGY, 20, 77-89 (2018).

32 Diversity and Inclusion in AI Development: West, S. M., Whittaker, M., & Crawford, K., Discriminating Systems: Gender, Race, and Power in AI, AI now institute (2019), retrieved from [ainowinstitute.org] (ainowinstitute.org/ publication/discriminating-systems-gender-race-and-power-in-ai-2).

Lawyers and their firms interact with all manner of websites and services, and care that private information is safely managed. We also operate websites and services where consumers and our clients expect the same.

In this environment of ever-increasing data collection and aggregation and concomitant breaches, regulating bodies are starting to respond to consumer complaints and have begun to act. Your law firm’s website may soon be in their crosshairs, impacting your engagement and reach with current and potential clients.

Websites know no geographic boundaries, lawyers so regulations related to data collection affects lawyers in three ways:

1) what we disclose to website visitors about data-collection practices;

2) the ability of an individual to obtain a copy of that collected data; and

3) the ability of individuals to erase that data under limited circumstances. The most important of these is disclosure of data collection.

Data collection and cookies

Websites store information about visitors and track their interactions via tiny text files called “cookies.” Cookies are not inherently malicious and are often helpful. Amazon uses them so you can store contents in your shopping cart while continuing to click around. Cookies are also why you’re able to stay logged in to password-protected websites.

The privacy concerns with cookies arise from “tracking cookies” or “third-party tracking cookies.” These cookies “follow” you around the internet as you browse websites and build a more intimate and complete picture of you. Have you noticed how, when you search Google or Amazon for “Sonicare toothbrush,” you subsequently see electronic toothbrush ads on other websites you visit? You’ve experienced the power and reach of tracking cookies.

Go to wikihow.com/View-Cookies to learn how to review the cookies on your computer’s web browsers.

Requirements

To comply with the recent government regulations, websites must disclose their use of cookies. This is why, in visiting websites in the last couple of years, you’ve seen more and more “pop-up” disclosures regarding data collection and cookies.

What do you and your website need to do then?

- Your website must provide visitors with accurate and specific information about what every cookie your website uses does.

- You must obtain a website visitor’s consent before using any cookies beyond those necessary for essential website functions, such as allowing users to stay logged in as they bounce around and return to your website.

- Once the visitor consents, you must document and store that consent.

- Visitors must be able to access your site even if they reject certain types of nonessential cookies.

- Visitors must be able to withdraw or change their consent easily.

It’s entirely likely and reasonable that you don’t have the foggiest idea what cookies your website uses or what’s stored in those cookies on visitors’ computers. That’s OK. There are several websites that will examine your website for compliance and tell you where you are deficient. If you are responsible for your website’s backend, there are tools available for WordPress, Wix, and Squarespace.

If you have no idea what the preceding sentence means, there are plenty of companies willing to walk you through the process, such as OneTrust.

Missouri data disclosure laws

While Missouri has no laws specifically governing data disclosure, § 407.1500 RSMo. regulates consumer notifications of actual data breaches. The statue defines a breach as “unauthorized access to and unauthorized acquisition of personal information maintained in computerized form by a person that compromises the security, confidentiality, or integrity of the personal information.”

Personal information is an“individual's first name or first initial and last name plus one or more of the following:

- social security number,

- driver’s license number or other government identifying number,

- financial account numbers (in combination with a PIN or other access credentials),

- unique electronic identifier or routing code (in combination with a PIN or other access credentials),

- medical information, or

- health insurance information.

The statute provides two exceptions as to whether accessing such information qualifies as a breach. First, good faith access is not a breach. Second, a reportable breach occurs only if the accessed personal information is “not encrypted, redacted, or otherwise altered by any method or technology in such a manner that the name or data elements are unreadable or unusable.” A breach of encrypted information need not be reported if the encryption key was not compromised.

Additionally, a breached party’s notification obligations may be tolled based on a law enforcement request (e.g., an ongoing investigation) or superseded by another law (e.g., HIPAA for healthcare organizations).

Notifications from the breached party to affected individuals must happen within 45 days of the breach’s discovery, which could be long after the breach’s occurrence. If the breach impacts more than 500 state residents, the business must notify the attorney general’s office.

Finally, the law provides a private right of action under which individuals may sue. Only those whose data was breached may sue for damages, and the Missouri Attorney General’s Office may also act.

For more resources about keeping your and your clients’ information safe, visit The Missouri Bar’s Law Practice Management Resource Center.

Document management solutions are critical to the success of today’s law firm. Legal specific document management eliminates the wild, wild west approach to document storage and security and significantly improves the efficiency and productivity of legal professionals.

 Selecting a document management system (DMS) can be daunting, but here are four simple steps to get you started on the path to selecting the perfect DMS for your firm or legal department.

Identify core features of your DMS

Understand the real needs of your firm before looking at a document management system. Does your firm have issues capturing emails? Are your challenges with finding documents? Are there difficulties with saving documents consistently and naming conventions? Truly recognizing the needs of your firm or department is the first step to understanding and selecting the features needed in a DMS.

Rank feature importance

One document management solution will probably not provide you with EVERYTHING on your list. Ranking your requirements will help. Know what features are critical to your firm or department. Know which ones you’d like to have but could live without and which ones you definitely do not want or need. It may be necessary to trade off some features that mean little to your process in place of ones that cannot be compromised.

Evaluate on premise solutions versus hosted, cloud-based solutions

Understand your choices when selecting the DMS configuration that’s best for your firm. Keep in mind that the number of on-premises vendors diminishes each year. Most investment and development focus on hosted (AKA cloud-based) solutions.

With on-premises solutions, you’ll need to consider whether you have someone with the knowledge to set-up and maintain the system, plus hardware/software costs and specialized manpower for maintenance. You also want a clear sense of the vendor’s long-term strategy for its on-premises product. If you must have an on-premises DMS, perhaps for regulatory reasons, ensure you understand the vendor’s commitment to future support for and investment in their on-premises products.

For hosted solutions, consider recurring costs (usually monthly, quarterly, or annually) to maintain servers and warehouse your documents, understand your data will live elsewhere, and maintain a strong internet connection.

Identify the choice that best meets your needs and budget.

Explore solutions via demo

Document management solutions should enhance the work your firm is doing, not add more steps or additional challenges. By watching an actual demonstration and seeing how a document management system’s features are performed, you’ll see which system will make your teams more productive and efficient.

Also, if a DMS indicates it can perform a critical function, ask the demonstrator to show you how it’s done.

For more resources on opening, building, managing, protecting, and winding down a law practice, visit The Missouri Bar’s Law Practice Management Resource Center.

It's common to see news about cybersecurity spiral away from the helpful and actionable toward the sensational and convoluted. In the spirit of simple, direct, actionable solutions, here are seven suggestions to improve your cybersecurity situation.

Enable whole disk encryption

With in-person events picking up following the COVID-19 pandemic, our laptops are on-the-go and more people are visiting the office. Enable whole disk encryption on all laptops and desktops. If a thief steals your computer, they cannot access client information absent your username and password, even if they remove the physical hard drive from the stolen computer and install it in a different machine. Whole disk encryption is built in to Windows and macOS.

Enable “Find My”

Check whether your device’s remote location feature is enabled. Apple calls its service Find My, and Google’s is Find My Device. Microsoft's feature is also called Find My Device. With these services, you can locate the lost device, lock it, have it play a sound to help you find it, and, if necessary, remotely delete the device’s contents.

Apple’s service covers Macs, iOS devices, and some AirPods. Google’s service supports Android smartphones, tablets, and Chromebooks. Windows 10 and 11 users can enable Microsoft’s Find My Device.

Asset recovery tags

Larger organizations have long used numbered or barcoded stickers to track what equipment they have and where it is. Companies like Dynotag and ReturnMe take this inventory concept and make it accessible to individuals and small businesses.

You purchase an identity tag from the vendor, which could be a sticker (most common), keyring, luggage tag, or even a literal dog (or cat) tag. You then create an account and register the tag’s number to your account. If you misplace your tagged item, whoever finds the item calls an 800 number or visits a website (both listed on the tag) to arrange the item’s return.

Think of these tags as “Good Samaritan stickers.” They don’t prevent theft, but they make it easy for good people to be helpful.

Complex passwords

Unique, complex passwords remain essential for online security. Start with the LPM whitepaper on password managers for good information, but with one update: Replace LastPass with Bitwarden following the LastPass data breach in 2022. I have also used 1Password for years and am confident in recommending it.

If online password storage unnerves you, the open-source KeePass stores password data only locally on your machine, not in anyone’s cloud, but that makes you responsible for backing up and securing your data.

Finally, I recently learned one reason Rolodex still exists. A lawyer I met uses Rolodex cards for each of his passwords. For example, filed under “A” is a card for Amazon listing his email address and password. Considering the weaknesses of a single-copy paper record in one location, it’s imperfect but beats using the same password for many sites. If you prefer something more portable than a Rolodex, Amazon sells password notebooks.

Two-factor authentication

This LPM whitepaper provides a primer on two-factor authentication (2FA). Enable it on every web service you use that offers 2FA. Visit the 2FA Directory to discover whether your practice management software, bank, etc. makes 2FA available.

1Password, Dashlane, and Roboform support storing 2FA codes in their password managers. If you’re using another program, or a Rolodex or notebook, you’ll need an app like Google Authenticator, Microsoft Authenticator, or Twilio’s Authy.

Admin consoles

A practice larger than a solo lawyer, even just a single lawyer and one part-time support staffer, should buy or subscribe to the “business version” of most needed software or services. Business-tier plans typically include an administration dashboard to control device and user access.

Examine your vendors of subscription-based tools for document storage, productivity software, eSignatures, and more. Secure, centralized user access and content management are a lifesaver for a lost device, ease employee onboarding and departure, and add a “belt and suspenders” approach to client data when paired with whole disk encryption and a “find my” service.

VPN

If you’re working away from home or the office and need internet connectivity, don’t join whatever WiFi network is available, even if it’s “secured,” meaning anyone can ask the barista for the password. There are two sound ways to connect to the internet when away from your “known safe” networks.

First, use your smartphone as a WiFi hotspot. This will drain your phone’s battery and eat data, but it’s safe. Second, subscribe to and use virtual private network (VPN) software.

A VPN encrypts your internet traffic before it leaves your computer. Once the encrypted traffic arrives at the VPN vendor’s server, it’s decrypted and released onto the public internet. This approach prevents your coffeehouse or hotel lobby neighbors from eavesdropping. A VPN generally slows your internet connection, but it’s a tradeoff in favor of security. Visit the LPM comparison chart page to compare VPN providers.

Tackling these seven suggestions on a one-a-day schedule will dramatically boost your security in a week.

For more resources on opening, building, managing, protecting, and winding down a law practice, visit The Missouri Bar’s Law Practice Management Resource Center.

Jeffrey R. Schoenberger is a senior consultant at Affinity Consulting Group.

Therefore, you must educate yourself on proper social media usage to ensure that your private and professional lives do not conflict. 

Why are you on social media? 

As a first step, ask yourself, “Why do I use social media?” Do you use it to communicate with friends? To keep in contact with your children or other family members? Another reason? Perhaps you use social media to promote yourself or your business. 

Figuring out the “why” of social media for you helps you monitor your activity and allows you to use each individual platform appropriately. If you know why you use social media, then it is easier to determine how you should use it. 

One size doesn’t fit all 

Facebook, X (formerly Twitter), Snapchat, Instagram, LinkedIn, and the other platforms have distinct functions, customs, and expectations. Once you know why you use social media, you can better use the individual platforms. For example, you may want to communicate with distant family members on Facebook or show your Instagram followers a photo of yourself at an interesting location. Both activities would be inappropriate on LinkedIn, which is used to promote your professional self and business. 

Exactly which platforms you prefer to use for these purposes is up to you, but make sure you’re using the platform(s) appropriately. It can take time to learn the proper use for each, but that time is well spent. 

Understanding your digital presence 

It can be easy to forget that social media is not actually private. Something most social media platforms have in common is the ability for people to gather quite a bit of information about you from relatively basic searches, even if you have strict privacy settings on your accounts. Many platforms allow users to publicly display personal information – name, location, employment, interests, relationship status, family and friends, etc. – alongside public posts.

Besides being aware of what you post, you should also understand other outwardly visible activity on social media. For example, Facebook groups and followed accounts on Instagram all tell a story about you as an individual and, by extension, as a member of your organization. 

Know your social media presence and the impression it gives others about you – and your employer – when they search for your account. You want a positive portrayal on all social media platforms, especially considering your boss, coworkers, and current or potential clients may view your online interactions. 

Conduct self-audits 

Even if you believe your social media account(s) could not possibly upset another person, perform an occasional self-audit to ensure you are representing yourself well. Some platforms, such as LinkedIn, have ways to view your account as strangers would.

This is a helpful tool when analyzing your accounts from the perspective of others. 

You may only use social media to interact with friends and family but still keep communication clean and appropriate. You may only be directly communicating with someone you are close with but that communication could still be visible to, or passed along to, others. 

Conclusion 

You can only meet so many people in person, but you can connect with countless people digitally. Remember: The image you create of yourself digitally is visible to many more people (and for much longer) than in-person engagements. Make sure the version of you that others see online matches the version they meet in person.

When we think about what to put on a firm website, remember that your clients are normal people, and so are you. Why do you visit a business’ website? Determine what’s helpful to you and add it to your firm’s site. Here are examples to get you started:

Schedule appointments that work for you and the client

One way to minimize distracting calls is to let folks pick appointment times themselves, in the calendar windows you allow. Services like Microsoft Bookings and Calendly sync with your calendar, allowing clients to see when you're free and schedule an appointment directly on your calendar.

Letting clients schedule appointments for themselves seems intimidating at first, but you can create rules to protect your time. “Buffer time” blocks time before and/or after the appointment, ensuring a gap to prepare for the meeting or organize your notes afterward. You can limit how soon clients can schedule appointments, guaranteeing plenty of heads-up to prepare for the meeting. You can also specify how far in the future someone can schedule and limit what hours are available each day of the week.

Both Bookings and Calendly offer code snippets, sometimes called “embed” or “widget” code, to add this scheduling functionality to your existing site.

Collect more information upfront using web forms

Clients completing intake or other informational forms in your office is as popular with them as filling out medical forms with a clipboard and dry ballpoint pen is with you. Apart from being time-consuming and annoying, no one wants to interpret the handwritten last name of a stranger.

Make life easier for clients and yourself by adding to your website tools you may already pay for: Google Forms and Microsoft Forms. Each is included with many Google Workspace or Microsoft 365 plans, respectively.

When selecting an intake form tool, ensure it meets the security requirements in your jurisdiction or practice area for the data you collect, e.g., HIPAA compliance for medical information. The free version of many tools is less secure than the paid version.

As with Bookings and Calendly, you can add questionnaires from each company’s forms product to your website.

In addition to these “general purpose” forms, Lawmatics, a web-based, legal-specific customer relationship management (CRM) application, provides more advanced options for forms on your firm site. If you subscribe to Clio Manage, its companion CRM product, Clio Grow, is another route to consider.

Explore the wide world of plugins

Many firms host their website on Squarespace or Wix, or they build the site using WordPress, which is available through countless providers. All support plugins written for their respective platform in addition to the embed and widget code mentioned above.

Plugins expand your website’s functionality, empowering you to go beyond text, videos, and images. Some potentially useful plugins for your law firm include a booking calendar (see above), advanced search features (to aid visitors in finding information on your site), and a chatbot or live chat. These features help your website live up to its potential and benefit clients — more than a mere business card.

Squarespace and Wix are self-contained, meaning they host your site online and provide the software that creates and customizes your pages. This approach offers a curated experience conceived and designed by one company. Its downside lies in being “closed source,” meaning that the software is not freely available for folks to modify and extend. Vendors permit plugins for these platforms at their discretion. Useful Squarespace plugins for a firm website include Dropbox, LinkedIn, SoundCloud, and Weglot. Wix plugin options include Dropbox, Magic Form Builder, and Social Media Stream.

WordPress has the most varied plugins of the three platforms. A web search for “law firm WordPress plugins” produces dozens of “top 10” lists of valuable plugins. While the WordPress software is free, the site hosting costs money, as do several popular plugins.

Being “open source” software means anyone can write and distribute a WordPress plugin. That’s beneficial — lots of plugins, but also a security concern. Before installing any WordPress plugin to your website, ensure it isn’t risky — download plugins only from official repositories. Read reviews from other users and explore what permissions the plugin requests.

While plugins offer valuable opportunities to enhance client interactions, you must prioritize website security over features. Don’t cut corners and leave your site vulnerable to hackers and malware.

For more practice management tips, visit MoBar.org/LPM for whitepages and checklists, as well as News.MoBar.org for articles covering a wide array of topics.

For lawyers – particularly solos and those responsible for making payroll each month – it seems there are only two states of the business. Either you are too busy to breathe, or you are scrounging around for billable work.

One of my colleagues refers to slow spells as time to “shake the trees” and work on those small tasks that need to be completed but you’ve forgotten about, or they were always less pressing than other matters. There are useful things you can do during slow periods that will eventually turn your “molasses time” into money:

Invest in training

You and your employees use core tools every day. I guarantee the computer programs you already own have features that would help you work faster and more accurately.

• If you draft documents, do you have templates with key language in one place that’s consistently editable with ease?
   
• Have you customized your email application with rules to filter incoming mail, separating client correspondence from newsletters and advertisements?
   
• How about setting up reusable task templates in your case management system?
   
• Have you developed a documented procedure for redacting PDFs for filing?

 Use your downtime to learn how to use your tools better.

If this interests you, Missouri Bar members get a 20% discount on Affinity’s legal-specific software manuals. Go here and use the coupon code MOBARMANUALS.

Catch up on CLE

Irrespective of business conditions, you will need CLE at the end of your reporting period, June 30, 2024. The Missouri Bar allows a portion of self-study CLEs to apply towards your MCLE hours. Here is a list of upcoming CLE programs.

Take inventory

Take inventory of your technology. Ask the following questions:

• Who has what? Make a list of each staffer and what they have as far as computers, monitors, scanners, printers, phones, and headsets. Also record what software each staffer has, the version of that software, and any associated licensing key. The software list says who has access to special software, like a child support calculator, and whose software should be upgraded.
   
• Where is it? After making the list, identify where that equipment is. Some equipment will likely at the office, but given hybrid-work policies, a fair portion might be in the homes of remote employees.
   
• How old is it? Record the purchase date and warranty status of each piece.

This inventory list will serve you well for two purposes: insurance claims, if necessary, and planning for replacement of equipment as it ages out of warranty.

Everything has a process

What you do in the firm has an “order of execution” or checklist of events/actions you take – from drafting a letter to a client to scheduling a meeting to creating, and executing documents. Even paying rent or restocking the coffee beans has a checklist.

Document how you do both administrative and substantive processes. Documenting processes will help you discover and eliminate bottlenecks. It also creates a “cookbook” should the person “in the know” be on vacation and the work still gets done.

Use the spreadsheet here to start your documentation process. Start with these two LPM whitepapers as your guides.

Centralize your knowledgebase

If you currently create client documents – whether it be a letter, estate plan, or operating agreement – by finding the most recent one you created for a client and modifying it for the current situation, you’re wasting time and relying on your memory to locate the starting point.

Take time to gather a representative set of recent documents – wills, for example – and assemble a single template, a starting document that contains the best versions of your provisions. Put those provisions into a single word processing document to use as your future starting point. See this LPM checklist as a guide on the subject.

Slow times in your business are stressful but remember there are useful things you can do during those times that will pay dividends down the road. And focusing your mind on something immediate and useful has benefits of its own.

For more practice management tips, visit MoBar.org/LPM for whitepages and checklists, as well as News.MoBar.org for articles covering a wide array of topics.

Some courts differ in local court rules as to when the CRIFSs (Confidential Redacted Information Filing Sheets) must be filed. The CRIFS is a statewide form provided for capturing the redacted confidential information within a public court document. In the scenario of differing local court rules, OSCA recommends CRIFS be filed as the document and the unredacted document be filed as an attachment. 

All other steps in your eFiling process needed to comply with Court Operating Rule 2 remain the same as outlined in the May 18, 2023, article “What you need to know about e-filing following expanded remote public access.” 

Visit The Missouri Bar’s Remote Public Access Resource and Redcation Center for a step-by-step video featuring the renamed document type, as well as articles and continuing legal education videos about protecting your client's confidential information in light of expanded remote public access. You can also find information and how-to videos regarding redaction best practices and various redaction software.

Whether driven by client requirements or scary headlines, IT security and compliance has risen to the forefront of firm planning and concern. Complying with the alphabet soup of regulators from GLBA and GDPR to HIPAA can feel like an expensive and overwhelming hoop-jumping exercise. The reality is that becoming compliant with these types of requirements is an important step to protecting the very continuity of your business. It can even become a competitive advantage.

Regardless of the firm’s IT model (cloud, hybrid, or on premise), it is important to develop and publish a clear security policy. The goal of the security policy is to ensure that sensitive information (i.e. data) is not physically lost or accessed by unauthorized parties.

1.  Define what protected data means to you and educate your users

The first step is to clearly define your protected data and to educate your users on how to protect it. This can be as simple as defining three categories.

·         Public data – this is data that is publicly available like your website information  

·         Proprietary data- this is data that may be specific to your firm (like a client list) but not  confidential in a regulatory sense

·         Confidential data – This would be all client work product as well as very specific items like social security numbers, patient identifying numbers, health information, financial information etc.

2.  Create policies and systems to protect your data

If you have ever seen a security questionnaire with over 300 inarticulate control points from a client, like a big bank, it is easy to become overwhelmed. However, at its heart, the goal of the security policy is simply to ensure that sensitive information (i.e. data) is not physically lost or accessed by unauthorized parties.

It helps to simplify things by thinking in terms of protecting your data in three key states: at rest, in use, and in transit.

3.  Protecting data at rest

Data at rest is data when it is being stored, like on a server hard drive, a PC hard drive, laptop, a mobile device, or a thumb drive.

·         Clearly define to your associates where your protected data can stored and require that all storage is encrypted and by what protocol (i.e. AES-256).  

·         Remember that email is protected data. So, in addition to encrypting drives, you should maintain mobile device management (MDM) to protect mobile content as well. 

·         Protect your data physically. If your firm maintains on premise servers, make sure they are locked from general access.

·         Have a disaster recovery plan including robust off-site backups (also encrypted).

·         Maintain best practice antivirus and patch updates on all hardware.

4.  Protecting data in transit

Data in transit is data that is in motion, like an email. Your policy should require that protected data is transmitted securely and accessed by only authorized individuals. 

·         You should provide an encrypted email option and define its usage requirements.

·         Deploy other services like DLP (Data Loss Prevention) to protect against user errors.  Most commonly, these are services at the firewall and/or email server level that detect protected words or patterns (i.e. ###-###-####) and quarantine email before it is sent.

·         Maintain current firewall security software and regularly penetration test your network.

5.  Protecting data in use

Data in use is about protecting data when it is actively being accessed from an authenticated user or a system service (like a database).

·         Maintain a robust password policy that includes:

·         Length greater than eight digits

·         Complexity that includes upper and lower case, numbers, and symbols

·         Change frequency of no more than 90 days

·         System lock-out after three failed login attempts

·         Forbid the use of any external password for work (i.e. Facebook).  Phishing schemes or insecure external sites are the most common way user credentials are exposed

·         Forbid the sharing of credentials or storing passwords in unencrypted states (i.e. plain text, Post-It notes)

·         Deploy Multi Factor Authentication (2FA). Multi-factor authentication requires an additional key to access system resources, like a text. It is biggest bang for your security buck!

·         Deploy auditing system for file, database (i.e. SQL) and active directory changes.

6. The bottom line

Best practices in security always favor a multi-layered and redundant approach. By thinking in terms of protecting your data-wherever it is-you can create the policies and practices that will not only protect your data but also the very existence of your firm.

Although it can seem overwhelming, a competent cloud partner can certainly relieve most of your compliance burden.  However, regardless of the size of your firm, it is important to remember that protecting your data is up to you.  Every step you take toward that end is the right move.

It’s been a busy few months at your firm, and you’re seeing growth in all areas. This is great news, but there are some concerns you must face early and head on. With growth, firms must deal with the challenge of maintaining an IT infrastructure that can keep up with all other firm aspects. It makes sense that as your firm grows, you must also improve your IT capabilities. Cloud-based infrastructure can be extremely beneficial to small (but growing) firms. Before you decide to jump in feet-first, there are several things to consider before making the switch to the cloud.

1. Stage your move

Moving to the cloud doesn’t have to be an all or nothing project. Having a project plan in place before any changes can help firms assess what areas should be the main priority during the move. You do not have to shift everything into the cloud at once. Low-risk, high-reward deployment areas allow firms to gain experience and knowledge about the cloud. Common initial deployment areas include testing environments and applications with few dependencies.

2. Start with applications

When it comes to working with data in the cloud, there are multiple “levels” on the technology stack. Higher levels focus on things such as software and applications while lower levels contain the infrastructure. During migration to the cloud, it makes more sense to move higher up the stack instead of focusing on lower levels. It is more efficient to move applications and software than infrastructure. So, when presented with the option, concentrate on the higher levels of the stack at first followed by lower levels.

3. Don’t skip policies

Having IT best practices written down and defined is critical. Cloud-based services allow firms to have access to self-managed infrastructures and high-end features that are typically out of budget for small firms. Having access to these features is great, but not having any policies in place can ruin these benefits quickly. Procedures should include managing security, integrating applications, and proactive monitoring.

4. Expand reach where you need it most

Your firm doesn’t need to move all information to a new data center infrastructure to notice the benefits of the cloud. Firms can instead extend their on-premise infrastructure with the help of cloud-based offerings. If the fit is right, you can run applications both locally and in the cloud with minimal reconfiguration.

5. Purge first

Change is inevitable. Technology is rapidly advancing, which sometimes makes it hard for firms to keep up. With all this change, your firm may have an overflow of servers and other infrastructure that may no longer be needed. Instead of automatically moving all your existing hardware, take the time to reevaluate. This migration may allow you to consolidate essential services. This will allow your firm to save money by eliminating redundant or outdated technology.

6. Think it out

When working with the cloud, you’ll likely see a drastic improvement in your firm’s technology infrastructure. But it’s crucial to do your research first and develop a carefully crafted plan that fits your firm’s specific needs. By doing so, you can work with an infrastructure that is best suited for all the demands that it may be faced with later.

The early days of computer software were the Wild West for document file formats. Into the late 1990s, even products of the same name from the same software publisher were incompatible, such as Word for Windows and Word for Mac. Moreover, even if the formats were compatible, printer drivers or other oddities often caused a document printed from version X of a program to look different from the same document printed from version Y of the same program.

Adobe Acrobat and its PDF file format were a godsend in this environment. Adobe’s core mission was to ensure a document always looked the same. It didn’t matter which fonts you had installed, which printer you used, or whether you viewed the document on Windows, a Mac, or, later, a mobile device. It would always look and print the same. And, after initially charging $50 per copy of its PDF viewer software, Adobe did something smart; it made its PDF reader free and maintained versions for nearly all platforms, including long-forgotten operating systems like AIX, OS/2, and SunOS. This cross-platform approach continues today.

Where Adobe did not initially buck the software trend is in the price of its PDF creation software, Adobe Acrobat. In an era when Microsoft charged $600 for a copy of Office, compared with $12/month today, Adobe charged a similarly high fee. That changed in 2008, when Adobe decided to make PDF an open standard, codified by the International Organization for Standardization as ISO 32000. With that action, any software developer could write PDF creation software without paying or otherwise running afoul of Adobe. And they have!

Today there are tons of free and low-cost PDF options available for Windows, Mac, and mobile. Recent versions of Windows, all versions of macOS, and even standalone programs like Word, let you create a PDF without any special or additional software.

For two reasons, we continue to view Adobe Acrobat Pro, now a subscription service of $20/user/month, as the PDF gold standard. First, it’s the most ubiquitous. If you need to search the web for “how to” assistance, it’s easiest to find help for Adobe. Second, its features and interface are identical between Windows and Mac. If your office is a “bring your own device” firm, then one set of training materials tells everyone in the firm how to do X in the product.

Core PDF tools

But plenty of low-cost and free alternatives exist out there. Let’s review some functions and options:

View and print: Any modern operating system (e.g., Windows, Mac, iOS, or Android) can view and print a PDF document natively. You don’t have to install anything to make it work.

Create a PDF from a Document: At the operating system level, independent of a specific application, Windows and Mac can “print to PDF.” For Windows, you may need to install it as a Windows feature. On the Mac, PDF creation is part of the native print dialog.

For iOS (iPhones and iPads), you have three native, built-in options. First, using the Markup functionality, you can annotate and save webpages in Safari as PDFs. Suppose you don’t need to annotate the document. In that case, you can save a PDF of the onscreen information by tapping the share sheet, selecting Print, making an “expanding pinch and zoom” gesture over any document page, selecting the share sheet on the subsequent screen, and selecting “Save to Files.” The third option is to “share” the document or webpage to Apple’s Books application.

For Android devices, the technique is similar to the Apple’s Book’s method, but it requires you to install a PDF reader or viewer. After you’ve installed a PDF program, to save a webpage or document as a PDF, tap the Action menu (three dots), tap the Share icon, and then tap the PDF program to save as a PDF.

In addition to PDF creation through printing, some Windows and Mac applications, such as Microsoft Word, can save a document as PDF. What’s the difference? In most cases, not much. The advantage of “save as PDF” versus “print to PDF” surfaces in two forms. First, in a Word document, for example, if your document uses Word’s styles feature or you’ve set headings viewable in Word’s navigation pane, then saving as PDF creates those headings as bookmarks in the PDF, making navigation easier for long documents. Printing as a PDF does not. Second, saving as a PDF allows you to save your PDF in the PDF/A format, an archival format required by many courts and government entities.

Add, copy, move, or remove pages: Windows does not natively support these types of PDF manipulation, but there are free PDF programs that accomplish these tasks. One that has worked well for folks is PDF Candy. It’s available as both a web-based app and a Windows-only desktop app. Sejda is another option. It is available as both web-based and desktop-based, but supports Windows, macOS, and Linux. However, with Sejda, you may face usage limits if you stick to the free tier.

For Mac users, Apple includes a high-quality PDF editor, Preview, with macOS. The Preview app lets users add, delete, or move pages.

Annotate, comment, or sign a PDF: Most PDF reader programs allow you to annotate, comment, or e-sign a PDF. Adobe’s free Acrobat Reader allows users to comment on documents (such as sticky notes, annotations, highlights, etc.) and sign forms. Foxit Reader, another PDF viewer, publishes manuals on what their free Windows and Mac readers can do. With these free packages, you can get a PDF word count, sign and “stamp” documents, comment and annotate documents, fill out form documents, and even add bookmarks, links, and images to the PDF (assuming the PDF is not protected). On the Mac, the Preview app can annotate PDFs and fill out and sign forms.

July 1 changes impacting lawyers’ PDF usage

In the prior section, we described core PDF activities anyone needs, from opening or creating a PDF to basic manipulation and e-signing. Beyond these core functions are two additional ones essential to the legal professional’s toolkit: Bates numbering and redaction. While Bates numbering’s use lies primarily within a litigation or discovery-heavy practice, all Missouri lawyers must already comply with redaction requirements concerning confidential information in court documents.

Starting July 1, 2023, the public will have access to public court records from personal electronic devices, per a Supreme Court of Missouri rule change approved last year. As a result, the stakes for legal professionals knowing proper redaction techniques are heightened.

If you need to redact a document, you must do it properly. Often, lawyers end up in the news for inadvertently disclosing sensitive details. To prevent this from happening to you, ensure you’re using a program that can correctly redact information. Many PDF editing programs have two versions - a professional version and a standard version. The difference between them is often the software's ability to properly redact and Bates number. If your tool isn't explicitly labeled “redaction,” it isn't the right one.

Often found on a protection or security ribbon, proper redaction takes two steps. First, mark the appropriate text or area of the PDF for redaction. Then, apply the redaction. When applied, redaction burns a digital hole in the document. Once redacted, the removed content is unrecoverable, no matter what software someone has.

To prepare for July 1, head to the Remote Public Access and Redaction Resource Center to learn more about the coming rules change, compare available PDF software, and watch redaction tutorials for Adobe Acrobat Pro, Foxit PDF Editor Pro, and Kofax Power PDF.

For Windows users, the following products offer both Bates numbering and redaction features: Adobe Acrobat DC Pro, Fox PDF Editor Pro and Editor Pro +, Kofax Power PDF Advanced, and Nitro PDF Pro. Even if you need only redaction, purchasing or subscribing to a redaction-capable PDF product also gives you Bates numbering tools.

For Mac users, the following products offer both Bates numbering and redaction features: Adobe Acrobat DC Pro, Foxit PDF Editor and Editor Pro +, Kofax Power PDF Standard for Mac, and Nitro PDF Pro for Mac. On the Mac side, Apple’s free Preview app, included with macOS, and Readdle's PDF Expert offer redaction, but not Bates numbering.

Do you need additional help selecting the best PDF software for your needs, or wish to discuss redaction options on mobile devices? Missouri Bar members can schedule a free consultation through the Ask an Expert page or by emailing MoBarLPM@affinityconsulting.com.

By Danielle DavisRoe, Affinity Consulting  

Color draws our eyes and attention: stop signs are red, construction workers wear yellow, and sticky notes are bright and colorful. You can also use color to draw attention to your data with Excel's conditional formatting feature. Conditional formatting uses rules to color code your data and automatically update the colors as your data changes. 

To get started, select the cells that you want to be conditionally formatted. On the Home ribbon, in the Styles group, click on Conditional Formatting to see your options. 

1. Amounts greater than or less than a certain amount

Use if you have a list of numbers (for example, fair market values of assets in an estate or marital property in a divorce) and need to know if any of them are worth more than a certain amount. 

2. Specific values

Use if you want to draw attention to cells with a specific value (such as property in an estate or cells containing "N/A".) 

3. Highest or lowest amounts

Use if you have a list of numbers (for example, a list of attorneys and their billable hours) and want to quickly see which ones are the largest or smallest. You can format a specific percentage or certain number of cells that fall at the top or bottom of the range. 

4. Color scales

Use color scales to color code a series of numbers based on their values. When color coding using red, yellow, green, the largest number is green, and the smallest number is red. The numbers in between are assigned a shade based on where they fall between the lowest and highest numbers. 

5. Custom rules

Set up conditional formatting to work based on custom rules that you create. 

6. Managing rules

You can apply multiple rules to the same cells. The Rules Manager allows you control the order in which they apply. 

If you’re interested in additional videos and lessons like the one above, head over to Affinity Insight and register. As a Missouri Bar member, you get unlimited free access to the video library. Use the coupon code MOBARMEMBER at checkout to drop the cost to $0. Affinity Insight Standard is included with your bar membership at no cost to you. 

Looking for additional resources to help open, build, manage, protect, or wind down a practice? Missouri Bar members have access to more than 100 whitepapers, comparison charts, checklists and more available from Missouri Bar Practice Management.  

Creating and editing PDFs is a crucial set of skills in any professional setting. From basic editing to redacting sensitive information, anyone who works frequently with PDF documents can benefit from learning about new features that increase efficiency and reduce paper usage. Keep reading to take advantage of everything your PDF editing software offers. 

Note: if you are using a free PDF reader, it probably lacks the features discussed here. I highly recommend upgrading to professional PDF editing software. While Adobe Acrobat has gone to a subscription model, they now include the ability to send documents out for e-signature as part of your monthly fee. Foxit PDF Editor Pro and Kofax Power PDF are two great alternatives that you can buy outright. Explore our PDF Programs Comparison Chart to determine the best program for your needs.  

1. Annotate 

Do you still print documents to mark them up by hand? Use your PDF editing software instead. Chances are high that your software has built-in annotation tools to allow you to add comments, highlight text, and draw shapes. Save paper and reduce clutter on your desk by marking up documents digitally. 

2. Combine documents 

Instead of printing and scanning multiple documents together to create a single PDF, use your editing software to combine documents electronically. Most editing programs have a thumbnail or panel where you can drag and drop pages from one document to another. You can also use the “add pages” or “create a new PDF from multiple documents” features (frequently found in the thumbnail/pages panel or the file menu) to combine documents. Another option is to select multiple documents in File Explorer and right-click to combine. 

3. Redact  

If you ever need to redact a document, it is critical you do it properly. All too often, lawyers end up in the news for accidentally disclosing sensitive details. To prevent this from happening to you, make sure you’re using a program with the ability to correctly redact information. Many PDF editing programs have two versions - a professional version and a standard version, the difference between them often being the software's ability to properly redact and bates number. If the tool you are using isn't specifically labeled “redaction,” it isn't the right one. 

Often found on a protection or security ribbon, proper redaction takes two steps. First, mark the PDF for redaction. Then, apply the redaction. When a redaction is properly applied, it burns a digital hole in the document. This way, no matter what software someone has, they won't be able to recover the removed content. 

If you’re interested in learning more, head over to Affinity Insight and register for unlimited access to on-demand videos and step-by-step manuals on the software mentioned above. As a Missouri lawyer, you get unlimited no-cost access to the complete library of videos and manuals. Use the coupon code MOBARMEMBER at checkout for free access. Affinity Insight Standard is included as a Missouri lawyer benefit at no additional cost. 

Need additional help selecting the best PDF software for your needs? Missouri Bar members can schedule a free consultation through the Ask an Expert page or by emailing MoBarLPM@affinityconsulting.com.  

1. Microsoft Word – spell check words in all caps 

By default, Word does not spell check words that are in all caps. If you have headings or pleading titles in all caps, it’s possible to end up with typos in your document despite using spell check. You can easily fix this setting in Word’s proofing options. 

2. Microsoft Word – set new default fonts 

Every Word document has a default font. But if you simply adjust a document’s font using the dropdown on the home ribbon or font dialog, you haven’t actually changed the default font. When a document’s standard font and the font you want to use aren’t in agreement, the default will continue popping up throughout the document. Fix this problem by clicking on the default font button from the font dialog, then set a new default to the one you want to use. 

3. Microsoft Word – keep text together with the ‘Keep with Next’ feature 

Signature blocks breaking across pages, as well as headings falling at the bottom of a page, have irritated Word users for decades. A common solution is using the enter key to get the text lined up. By doing so, however, you can end up with annoying gaps that require you to adjust the number of returns for each heading and signature block when you attempt to edit the document. Instead, use Word’s ‘Keep with Next’ setting to glue headings to a paragraph and keep lines in a signature block together. You’ll find this feature in the paragraph dialog on the line and page breaks tab.  

4. Outlook – use the ‘Quick Steps’ shortcut to save time 

Outlook ‘Quick Steps’ consolidates several actions into a single click. For example, if you frequently forward emails to someone else to handle and then move the original email into a folder for delegated emails, that can take a lot of time. Instead, use ‘Quick Steps’ to turn a series of actions (such as forwarding an email to a specific recipient, entering specified text into the body of the email, automatically sending an email, marking the original email as read, and moving the original email into a folder) into a single click. Get started from the Quick Step gallery on the home ribbon. Once your Quick Step is set up, you only need to select which email to forward, and then click on the name of your Quick Step on the home ribbon.  

5. Outlook – set up ‘Rules’ 

Outlook ‘Rules’ scans your incoming (or outgoing) emails. When specified criteria are met, the rule activates, automatically handling emails for you. If, for example, you want to move all emails from a client into a specific  Outlook folder, you can set a rule to do that automatically. To get started, click on ‘rules’ from the home ribbon. Once a rule is specified and turned on, it runs in the background, helping you process emails 24/7.  

6. Excel – use ‘AutoFill’ 

Whether you’re entering data or creating formulas, the work you do in Excel can often be redundant. ‘AutoFill’ replicates formulas or sequences (such as dates or numbers) across columns and rows with ease. Drag and drop the bottom right-hand corner (the “Fill Handle”) of a cell to replicate a formula. Select two cells in a sequence, then drag and drop the Fill Handle to continue the series.  

7. Excel – take advantage of ‘AutoSum’ 

When totaling rows or columns in Excel, take advantage of the ‘AutoSum’ button to let Excel write the formula for you. Click in the cell where you want the total to appear, then click on the AutoSum button on the home ribbon. Excel will analyze the data around the cell and write the formula for you. You just need to hit enter to finish it.  

If you’re not taking advantage of all these features, it might be time for training to get more out of what you use every day. Affinity Insight provides you and your team with access to in-depth, self-guided legal tech training. This includes more than 150 hours of content, covering over 30 different software products (including those mentioned in this blog), and access to the entire library of Affinity Consulting software manuals for legal professionals. Missouri Bar members can subscribe to an Affinity Insight Standard Plan at no cost with code MOBARMEMBER. 

1. Listen to your users 

Start by listening to your users. Find out what their pain points are before implementing anything new. What’s working? What’s not working? When you know what’s challenging them, you can ensure that any upcoming changes ease their frustrations.   

For example, when Affinity leads a new software rollout, we start off with a user survey. The user survey helps us understand where users are frustrated and where they have an appetite for change. We use that knowledge to put together a training plan that benefits users immediately. If you want to do this on your own, Survey Monkey is the granddaddy of web survey tools. You can also look to tools like Microsoft Forms (included in many Microsoft Office 365 packages) and Google Forms (free and included with Google Workspace packages).  

2. Communicate 

Start with what you learned from listening to your users to frame your communication with them. Center your messaging around what’s important to your users and how the change will improve their job. Your new practice management system might improve things for your firm’s partners, but that should not be the focus of your communication with the rest of the team.  

One of the best ways to know what’s happening with you users during the transition is to see what resources or help articles they are accessing, or where work seems to bog down. 

If Affinity leads a rollout, our online learning platform offers course managers (i.e., firm administrators) the ability to track users’ progress through assigned courses. That’s a significant benefit to firm administrators, but not something the users engaging with Affinity Insight’s training content care about. We tailor our communications with users to focus on what they care about - how good training will help them get their job done faster and easier.  

For a firm doing its own change-over, think of ways that you could gather information on users’ sticking points: 

• Create a centralized email help address (for example, “name of new software”@myfirm.com”):  This provides a place for users to report problems or questions, and shows management where to focus employee training. 
• Create an intranet help page: Although creating an intranet sounds overwhelming, your “intranet page” can be as simple as a Microsoft Word document in a centralized location. In the document, place web links to helpful articles or training content, such as a video demonstrating the new software in your firm’s system. 

Absent some coding, you will not be able to tell who accesses which help resource however many times, but the email address (or alias) and help documents work symbiotically. You seed the help document with what you believe will be core questions and then adjust it based on email questions. 

3. Assign a pilot group 

When implementing new software, do not underestimate the power of a pilot group. A pilot group receives early access to the new software, tests it, and makes recommendations for changes. Not only can a pilot group help facilitate a smooth transition but they can also be your biggest cheerleaders. Get them excited for the change, and their excitement will spread like wildfire.  

Be sure to give the pilot group extra time to play around with the new programs. Do not expect them to get through their normal workload and give your new software the attention it deserves. The most successful pilots are ones that have the time each day to test things out.  

4. Train your employees 

There’s an adage we use around Affinity: if you are not going to train your users, you should not implement new software. We say it because it’s true. Implementing even the most user-friendly software in the world will flop if you do not give your users adequate training. While training at the time of implementation is vital, providing refresher training weeks and months later will help people improve their skills and learn how to take advantage of more advanced features.  

Record training videos and make them available for people to watch when questions come up down the road. Provide written instructions for those who would rather read than watch videos and provide as much training (both live and on-demand) as possible. Many software vendors also offer recorded videos and live webinars for users, and these can be a critical tool in helping your team succeed. 

5. Lead by example 

Lead by example and make sure team managers are onboard before rolling out any new software. If your leaders are not on board, either get them on board or head back to the drawing board.  

If your leaders do not adopt the new software, it has a waterfall effect. When they do not use your new software, it sends the message to your team that they do not need to use it or that there is no benefit to using it. It also makes it harder for your users to use the software. Suppose leaders are not storing or updating data in your practice management system or document management system. That forces your users to work outside of the system and makes the new system unreliable.  

Making sure users have the tools they need to learn new programs and software is one of the most challenging parts of any software implementation, but by utilizing these five tips early in the planning process, even the most complex changes can succeed. 

Missouri Bar members look to open, build, manage, protect, or wind down a law practice have access to scores of white papers, checklists, charts, and articles through the Practice Management Center. Missouri Bar members can also schedule a free consultation through the Ask an Expert page or by emailing MoBarLPM@affinityconsulting.com. 

This is the second article of a three-part series from The Bar Plan Mutual Insurance Company. The first part (about legal malpractice insurance) ran Dec. 15 and the third part will run Jan. 12, 2022. In the series, the author will describe the common types of insurance that lawyers and law firms should consider purchasing. The coverages included in this series are by no means an exhaustive list but are intended to provide you with a starting point to determine the coverages that are necessary for you and/or your firm.  

Cyber liability insurance 

Coalition, one of the largest providers of cyber insurance in the United States, reports that cybercrime “is increasing like never before.” The most common claim Coalition sees is business email compromise, with the average claim costing $37,000. Funds transfer fraud was the next most common, with the average amount of funds stolen being $247,000. Ransomware incidents have also increased, with the average ransomware demand being a whopping $1.2 million and the average ransomware claim costing $184,000. 

Most notably, Coalition reports that attacks are becoming increasingly automated, so it’s easier and more profitable for attackers to target medium and small businesses. Claims made against business with under 250 employees increased 57% from the first half of 2020 to 2021, according to Coalition. 

Business and tax consultant firm PBMares has a great summary of the common coverages to look for in a cyber liability policy here. At The Bar Plan, we recommend that you consider the following factors when assessing cyber liability coverage:  

• Does the policy provide full unknown prior acts coverage? 

• Are there separate limits for breach event costs (such as notification to clients) and additional defense costs (such as attorneys’ fees for any suit brought against you)? 

• Is there coverage for data that is stored with third parties? 

• Is the coverage worldwide? 

• Does the policy include proactive breach response costs and voluntary notification? 

• Does the policy cover the cost of providing credit monitoring services, identity theft assistance services, credit or identity repair, and restoration services to affected parties? 

• Does the policy provide system failure coverage, and does it apply to voluntary shutdowns that are necessary to protect your data? 

• Does the policy’s property damage exclusion apply to electronic data (you do not want it to)? 

• Does the coverage apply to breach of corporate information of all types? 

• Does the policy cover acts committed by rogue employees? 

• Does the policy cover privacy claims brought by employees? 

• Is there an extended reporting period on the policy? 

Most cyber liability policies provide first and third-party coverage. First-party coverage protects you from damages incurred by cyber liability events, while third-party coverage protects your clients and others affected by a cyber event. In that regard, consider whether the policy you’re looking to purchase includes the following types of coverage in each category. 

First-party coverage components 

• Breach event and remediation costs 

• Damages to your brand/reputation/image 

• System failure(s) 

• Cyber extortion (ransomware) 

• Cybercrime (fraudulent funds transfer) 

• Complete failure/loss of electronic equipment 

• Property damage loss 

• Payment of a reward for the provision of information 

• Court attendance costs 

• Business Interruption 

Third-party liability coverage components 

• Multimedia liability (copyright, libel, slander, etc.) 

• Security & privacy liability (the failure to protect a customer’s information) 

• Regulatory defense and penalties (fines and defense expenses from regulatory agencies) 

• PCI DSS (Payment card industry data security standard) liability 

• Bodily injury liability 

• Property damage liability 

• A TCPA (Telephone Consumer Protection Act) defense 

The cost of cyber liability insurance has risen dramatically over the past year. However, as demonstrated above, the potential liability is great. There are many cyber liability products in the market, both from traditional insurance companies and new “insurtechs” that leverage technology to write cyber liability policies with the backing of larger, established insurance companies. It is worth talking to a few different entities about cyber liability insurance until you find one that meets your needs. 

The Missouri Bar has assembled scores of resources for members looking to protect a practice. Members can learn more about the insurance options available from Missouri Bar member benefit providers here. The Bar Plan is a proud Missouri Bar member benefit provider and the only endorsed carrier of Professional Liability Insurance for The Missouri Bar.

Email is by far the most used business application. Even though numerous studies demonstrate its distractive tendency, most people also keep email open and running on their computer throughout the day, just inviting interruption by anyone who happens to send them a message.

If you insist on keeping email open – and even more so if you have the app set to alert you when you get a new arrival – I promise you will benefit from a keen understanding of email rules, their creation, and how letting Outlook (or Gmail or Apple Mail) handle some message routing and filing for you will alleviate annoyance and allow you to focus on real work.

Where does your email live?

This used to be a simple question. Fifteen or more years ago, before the advent of broadly-used mobile devices, most email services operated on the POP email protocol (POP being an acronym for Post Office Protocol). It dated from 1984 and, for our purpose today, was designed so that a single computer would retrieve messages from a server. Once retrieved by the computer, the messages were deleted from the server. If you lived in an outlandish world (at least until the 21st century) with multiple computers with email, there was no easy way to keep all computers’ inboxes in sync.

Email-heavy users realized this problem quickly and POP’s eventual successor, IMAP (Internet Message Access Protocol), was conceived in 1986. With IMAP, as well as similarly functioning proprietary protocols like Microsoft’s Exchange and Google’s Gmail, the “truth” about your inbox lives on the server. All mail resides on the server and copies are downloaded to each computer or device. The actions a user takes on a device, such as reading, responding to, or deleting a message, are reconciled to the server, which transmits those changes to other devices when those devices check for email.

You can easily imagine the benefit of a server-based inbox because you experience it every day. You check email from your work laptop, iPhone, and Android tablet, and all devices show all your messages, their status (e.g., read or unread), and replies sent from any device.

This history lesson as background serves as an introduction to email rules because an IMAP server (or MS Exchange or Gmail) can hold not just messages and their statuses, but also filing instructions. You could set up a rule to file all emails from a certain listserv to a specific folder and mark those messages read. The benefit of setting up rules at the mail server level means that no specific device or program (e.g., Outlook) needs to run to filter and file email.

Setting up a rule in Outlook for Windows

I expect that Outlook for Windows, connected to Microsoft Exchange via Microsoft 365, is probably the most common environment. I will focus on that for my examples.

Suppose I subscribe to Clio as my practice management system and I want all announcement and other emails it sends filtered into a single folder, to get them out of my inbox. I have two options:

• Server-side rules, meaning they run whether Outlook is open or closed.
• Client-side rules, meaning they run only when you have Outlook open. Client-side rules have more options.

A server-side rule to move messages to a specified folder.

1.Click on “File” > “Info” > “Automatic Replies.”

2. Ignore the out-of-office portion and click “Rules…” in the bottom left corner.

3. Click “Add Rule…” in the bottom left corner.

4. In the “From…” field, type clio.com. Check the box next to “Move to” and click the “Folder…” button to select a folder for the system to relocate emails from clio.com.

5. If you need to create a new folder, you can do that on the “Move Message To…” screen. Then click “OK.”

6. Confirm everything is correct and click “OK” again.

7. Click “OK” twice more to close the “Rules” windows.

This Clio rule will run on the server, so you don’t need to have Outlook open on your computer. But you’ll notice that your options are limited on what you can do with the message; basically, moving it, copying it, and forwarding it. If you want more options for rules in Outlook for Windows, you can create client-side rules.

A client-Side rule to move messages to a specified folder

This client-side rule, which reviews and acts on emails only when Outlook is running, will not only move the messages from clio.com to a specified folder, but also mark those messages as read – something not possible with server-side rules created in Outlook for Windows.

1. Select a message from Clio and right-click.

2. Select the “Create Rule” option. If you’re eagle-eyed, you could also choose “Always Move Messages From: Clio Cloud Conference.” The difference between going the “Create Rule” route versus “Always Move” is that “Always Move” will base the rule on conference@reply.clio.com versus a rule for all Clio emails from an email address containing @clio.com.

3. On the next screen, select “Advanced Options…”

4. Check the box “with specific words in the sender’s address” and then click on the “specific words” in Step 2 of the image below.

5. Enter “clio.com” in the specific word area and click “Add.” Then click “OK.”

6. Confirm that “clio.com” has replaced the blue “specific words” you saw in Step 4. Then click “Next.”

7. We’ve now chosen what we want the rule to check for. Now we tell the rule what to do if it finds a match. To have the rule move the message to a specified folder and mark the message as read, check the two relevant actions – “move it to the specified folder” and “mark it as read” – and then click the blue “specified” word in Step 3 displayed in the image below.

8. Select the folder where you want the messages filed. If a folder doesn’t exist, you can click “New…” to create a new folder.

9. For this example, I created a “Clio” folder and selected it. Next click “OK.”

10. Verify everything looks correct and then click “Next.”

11. The next screen permits you to add exceptions. If you don’t want to add exceptions, just click “Next.”

12. Outlook will default the name of the rule to clio.com, but you can change it if you want. Then, click “Finish.”

13. You will receive a prompt reminding you that you created a client-side rule that will only work when Outlook is running. Click “OK,” and you’re finished creating your client-side rule.

Other rule options

If you’re willing to create rules in the Outlook web client, as opposed to the Windows desktop app, you get additional options on what server-side rules can do.

1. Login to your Outlook web interface.

2. Click the sprocket (the toothed wheel) in the top right, and then “View all Outlook settings” at the bottom of the pane. The Settings screen should appear. Click “Mail” > “Rules” > “Add a new rule.” Your screen will match the one below.

3. If you click the dropdown for either “Add a condition” or “Add an action,” you’ll see copious options; far more than the server-side options in Windows desktop Outlook.

4. Building the rule for Clio messages follows the steps similar to those described for the client-side rule in desktop Outlook. Here is a screenshot of my finished product for moving emails from Clio to the designated “Clio” folder and marking the emails as read.

You’ll notice that, unlike the server-side rules created in desktop Outlook, my rule here can have two actions and, should I desire, multiple conditions as well. Clicking “Save” at the bottom right on this window saves my rule and runs it on the server level. In that case, if I check email from my work laptop, iPhone, or tablet, all messages whose sender includes “clio.com” will be moved to my Clio folder and marked as read.

Not an Outlook fan

This article focused on Outlook for Windows and Outlook Web. But rules are not limited to those platforms. Outlook for Mac users can take advantage of Outlook Web to create your rules, or look here for guidance on creating rules in desktop Mac Outlook. Gmail users can find guidance on rules here.

We’re here to help

The Missouri Bar has practice management resources on email etiquette and getting the most from Outlook (Windows or Mac) in the Practice Management Center. If you have questions or want assistance with setting up email rules, email mobarlpm@affinityconsulting.com or schedule a no-cost consult with the experts at Affinity Consulting.

Looking to purchase/change practice management solutions? Check out our cloud-based practice management comparison chart. Missouri Bar members receive discounted rates on many top practice management solutions, including Clio.

Collaboration happens in two forms: asynchronous and real-time. We generally prefer asynchronous communication – text messages, emails, and voicemails – over real-time communication. How often do you text or email from your smartphone compared to making actual phone calls in a day?

Asynchronous

Asynchronous collaboration allows people to work from anywhere at a time convenient to them. Early birds can collaborate with night owls. New Yorkers can collaborate with counterparts in the Far East. Time zones don’t matter. Here are tips to make asynchronous collaboration better:

Share basic documents

1. If you’re not on the paperless bandwagon, start by getting a scanner to turn important papers into something that can be shared easily. After scanning the document, programs like Adobe Acrobat or ABBYY FineReader can convert a PDF to an editable Microsoft Word document.
2. To collaborate over the Internet, your document must be accessible to your collaborator. The easiest sharing platform is Dropbox, although there are plenty of competitors in this market. In fact, Apple (iCloud Drive), Google (G Drive), and Microsoft (OneDrive) all offer free space, but I think they’re just a bit more challenging to share from compared to Dropbox.
3. Apple’s Pages, Google’s Docs, and Microsoft Word offer free web-based versions of their respective word processors. If your collaborator doesn’t have the same word processor as you, they can access these free versions to edit the document you share, although they must create an account with the vendor if they don’t already have one.
4. Each person can now edit the document. Some word processors also allow several individuals track their suggested edits.

Share information rather than a document

1. Microsoft’s OneNote is the most cross-platform of the note-taking or “everything bucket” solutions. Create a notebook, share it with your collaborator, and either of you can put just about anything you can imagine in there: lists; checklists; images (whose in-image text, like a billboard or street sign, is searchable like typed text); other documents like Word, Excel, or PDF files; and even handwritten notes from an Apple Pencil (via the OneNote iPad app) or Surface Pen (via a Microsoft Surface device). OneNote is available on all the major platforms (Windows, Mac, iOS, and Android). There’s even a web-based version if you’re collaborating with someone who doesn’t want to download the free app.
2. All major web-based practice management platforms offer some version of a client portal, but don’t be limited by the word “client.” These portals are shared spaces where anyone you allow can see and interact with information you choose to make available from your practice management program. Vendors offer a wide array of features under the umbrella term of “client portal.” Clio, for example, lets you share just about anything through the portal. Clients can even upload documents and send you secure communications through it. Cosmolex offers a similarly rich portal experience. Actionstep’s portal, on the other hand, is restricted to document sharing. Visit our Practice Management Center to get an idea of features, comparisons, and considerations regarding client portal services. If you decide to buy, the bar’s Member Benefits page provides discounts for many top contenders.

Real-time collaboration

If you and your collaborator need to work on the same document simultaneously, I have two questions for you: 1) how tech-savvy is your collaborator, and 2) how complex is the shared document (e.g., complex formatting, lots of images, etc.)?

Technophobe collaborators
If the person you’re sharing the document with is not a technophile like you, then the easiest thing to do is a web meeting where one of you opens the document and shares your screen. You can even grant keyboard and mouse control to your fellow participant, so that person can edit and navigate the document while the document resides on your computer. All major web meeting platforms support screen and control sharing, though many require a paid account. If you’ve made it this far into the pandemic without a paid account at Zoom, WebEx, or similar, this comparison chart will help you choose one. And, once you’ve made that choice, read up on video conferencing professionally and get a pair of good headphones. Although you don’t need it for mere document collaboration, I recommend getting a high-quality webcam. The ones built into laptops are not good, a fact even the Wall Street Journal confirmed. I have and like Logitech’s Brio Ultra HD Pro Business, personally. Despite the alphabet-soup of a name, it works wonderfully, has 4K resolution, a built-in microphone, a privacy shutter (great if your office doubles as a bedroom), and supports Windows Hello. Plus, it’s actually in stock now.

Complex documents
Complex documents share best in their native formats. In the legal world, this usually means Microsoft Word, Excel, and PowerPoint. Luckily, sharing is easy for these programs, and your collaborator doesn’t have to own (or subscribe to) Microsoft Office. Here are the steps to share a Microsoft Office document via OneDrive (or OneDrive for Business or SharePoint) so that others can open and edit it at the same time as you, so that you see each other’s changes as they happen:

1. Save your document to OneDrive.
2. Open the document via the Office desktop app or the Office web app.
3. Click the “Share” button in the top right of the Office app.
4. Enter the email address of your collaborator. Type a message if you like. Then click “Send.”
5. As an alternative to the step above, you can choose “Copy link” if you’d prefer to send the person a web link via a text message or other means.
6. The collaborator receives a link he or she can click to access and edit the document.
7. When you both have the document open simultaneously, you will see a circle with initials of others in the document in the top right of the app or web app window. Clicking on a pair of initials reveals what page of the document that person is currently viewing or editing.

Mix and match

Depending on the information you’re sharing and the tech skills of your collaboration counterparts, one method may make more sense than another. In my experience, older clients prefer web meetings where you control everything as they comment or dictate text. Other folks prefer asynchronous document sharing because, like text messages or emails, they can review the documents at a time convenient to them.

The Manage a Practice page of the Practice Management Center contains scores of white papers, checklists, charts, and other articles relating to this topic. Missouri Bar members can also schedule a free consultation through the Ask an Expert page or by emailing MoBarLPM@affinityconsulting.com.

For business development and correspondence, we know that handwritten notes and letters make the best impression. I received 18 handwritten postcards in the mail last year from my high-school best friend who was traveling across the U.S. in an RV with his family. I can’t remember the last time before then that I received a postcard, and it was a treat! When I worked around Congress, I noticed the handwritten letters from constituents were most likely to make it beyond legislative correspondent staffers to the Congressman’s desk.

We also have scientific evidence that handwritten notes beat typed notes for information retention. A recent study by Princeton University researchers compared students taking handwritten notes versus typed notes. It found students who handwrote notes performed better on exams, took shorter (but better) notes, could relay ideas better, and had better short-term retention.

For legal technologists, studies like this put us in an odd position. We spend a great deal of time convincing legal professionals that they should be less paper-dependent and more digital-native. Prior to 2015, I suggested lawyers continue handwriting their notes but make a concerted effort to date, digitize, and file those notes into a document management system. This approach remains viable and eminently affordable since the greatest expense is a scanner (if you need a new scanner, see our recommendations here). You get all of the benefits the Princeton researchers found with handwritten, and the storage and retrieval benefits of digital. The weaknesses are two-fold though: others may not be able to read your chicken scratch, and the notes you take are not text-searchable – meaning the most you can search by are file name and whatever characteristics your document management system provides.

Enter the Apple Pencil.

Hardware

Apple released the iPad Pro and Apple Pencil in 2015, which was a watershed for digital handwriting. As with most first-generation implementations, there were gaps. Price was one: the first iPad Pro started at $800 and the Apple Pencil added $99. The first Pencil was prone to roll off desks (just like a regular pencil) and attached to the iPad in a way so awkward that it could double as a self-defense weapon or medieval pike.

What a difference six years makes! The second-generation Apple Pencil, priced at $130, has a flat side to prevent “roll away.” lets you change tools by tapping on the Pencil body, and it attaches and charges via magnets in the iPad. And total price came down. An iPad Air and Apple Pencil (2nd gen) start at $730 total. An iPad mini and Apple Pencil (2nd gen) start at $630 total.

Software

Once you’ve made your purchase, here are four core note-taking programs to evaluate – two of which are free.

Notes: Every iOS device includes Apple’s Notes program that syncs between all of your Apple devices – iPads, iPhones, and Macs. If you’ve never used an Apple Pencil or other stylus in Notes, you may not know that it supports handwriting and drawing. You can even experience that with a cheap “trade show freebie” stylus to try it out, though the precision of an Apple Pencil is lightyears ahead of those giveaways – like the difference between your handwritten signature and how your signature appears on a credit card signing machine.

In Notes, you can choose your paper style – blank, lined, or dot grid. Notes performs handwriting recognition, so you can search the contents of notes and not just their names – the feature missing from our legal pad example above. iOS 15, released on Sept. 20, 2021, adds several new features:

• Quick Notes is a “Picture in Picture” type feature that lets you make a note from wherever you are in iOS. No matter what app you have full screen, say Microsoft Word reviewing a draft brief, simply drag the Pencil from the bottom right of the screen to open a Post-It-sized window to write whatever just came to mind. That Quick Note is stored in your normal Notes app and is viewable on all your iOS devices.
• Notes now include tagging and smart folder features. Tagging is self-explanatory. Create a tag called “Smith v Jones” and tag all of the notes for that matter with that tag. Smart Folders are a bit more complex, but fundamentally they are a way to automatically group similar notes. You could create a smart folder in Notes that looked for notes containing the “Smith v Jones” tag and the “discovery” tag that have been edited in the last month. Or you could have a smart folder that contained all notes tagged “discovery” irrespective of their matter tag.
• Notes can be shared easily with other iOS users, irrespective of whether the user has an iPad or Apple Pencil. Any handwritten notes can also include typed words as well.

In addition to the Quick Notes, another Notes-only feature Apple offers is that if the iPad is asleep, tapping the darkened screen with the Apple Pencil will take the iPad directly to a new note in the Notes app so you can start writing immediately. This perk of Apple’s hardware-software integration eliminates the “boot up” delay that hindered prior digital note taking solutions.

Notes is not without its downsides though. Chief among them is that notes are available only within the Apple ecosystem (starting with a free iCloud account), and thus not stored natively in your firm document management system. There are ways to export individual notes as PDFs, but that’s an extra step. I think the benefits, particularly the “wake from sleep” feature, makes it worth the trouble.

OneNote: Microsoft’s OneNote application has existed since 2003 on Windows, 2011 on iOS, and 2014 on Macs. Of the handwritten note tools for the iPad, it allows the most cross-platform functionality. It’s also free, although Microsoft 365 subscribers see additional benefits. The iPad version fully supports the Apple Pencil. If you share OneNote notebooks with colleagues, they can easily see and edit notes too, also without paying extra money or venturing into a potentially unfamiliar ecosystem. In another boost for familiarity, OneNote embraces the notebook metaphor, wherein you create a notebook, divide it into sections, and add individual pages to a section. OneNote has support handwriting recognition longer than the other apps mentioned here. Finally, any Microsoft Surface users, with their accompanying pens, can join in the fun. More than Notes, or Notability and GoodNotes below, OneNote is most likely to coexist comfortably within your existing tech setup.

Notability and GoodNotes: To the extent it’s possible to have a granddaddy in a 6-year-old market, Notability and GoodNotes are it. Both existed prior to the Apple Pencil (Notability since 2009 and GoodNotes from 2012), and they really gained notoriety with the Pencil’s arrival. Feature-wise, they are evenly matched. Both allow the inclusion of images, screenshots, typed text, and just about anything else you can imagine. Prior major distinctions, like GoodNotes being able to import PDFs for editing or annotation, or Notability being able to record meeting audio that synchronizes to your handwritten notes, have greatly diminished. Today, it’s akin to a pickup truck rivalry between Ford and Chevy; a great feature one model has is quickly adopted by the other. The remaining primary difference is that Notability follows the Apple Notes model of folders and notes within them, while GoodNotes embraces the notebook metaphor like OneNote. Both Notability and GoodNotes offer Mac, but not Windows, apps and support various export options like PDFs. You can share notes, but only with other users of the respective app.

Buy and Try

Once you’ve committed to an iPad and Apple Pencil, start with the free Notes app, particularly as enhanced in iOS 15, and see if you find it lacking. If so, and you’re a Microsoft-centric firm, next try OneNote. If Notes proves insufficient and you’re not a Microsoft shop, I’d spend the $16 to get both Notability and GoodNotes, and stick with the one that works best for you.

Missouri Bar members have access to dozens of white papers, checklists, comparison charts, and articles for those looking to implement or improve the legal technology in their practices. Have questions? At no cost, members can ask an expert their legal technology or practice management questions via email or by scheduling a one-on-one, remote consultation.

The American Bar Association recently released its 2021 Profile of the Profession, which compiles data the ABA collected from several surveys, most of which were conducted in 2020-2021. The report includes valuable information relating to the legal profession, including lawyer demographics and diversity, the COVID-19 pandemic and its impact on the practice of law, lawyers’ perspectives on retirement and the future, and more.

The report also includes interesting data about lawyers’ use of technology. Some of the most notable statistics from this year’s report provide insight into how lawyers use online legal resources, their cybersecurity efforts, and the hardware and software choices they make. No matter how you look at it, the data from the report offers evidence of an important lesson for lawyers: technology is no longer an option and instead is a pivotal component of a successful law practice.

Online legal resources

The legal research statistics from this year’s report are particularly interesting, in part because legal research was one of the first law firm processes to be impacted by technology. The transition to online legal research occurred decades ago, and since that time legal research efficiency has increased significantly. Despite the increased efficiency, according to the report, lawyers still spend a big chunk of their time – 18% of each workday – conducting legal research. For nearly a third of the lawyers surveyed, the starting point for most legal research projects is a free search engine such as Google. Another third (30%) turn to paid online search tools before conducting any other type of legal research.

Lawyers also obtain most of their daily legal news online from a variety of sources. Nearly half of lawyers surveyed shared that Law360 was their top legal news source (41%). Next was the Wall Street Journal (22%), followed by Bloomberg Law News at 8% and Bloomberg at 6%.

The online world has also made its mark when it comes to legal marketing. Gone are the days of relying solely on the Yellow Pages, park benches, billboards, and costly television ads for lawyer advertising. In 2021 – especially while we’re in the middle of a worldwide pandemic – the internet is where it’s at. According to the survey results, virtual and in-person event sponsorships were the top way that lawyers marketed their firms (48%), followed by three web-based marketing opportunities: LinkedIn (42%), email (41%), and Facebook (33%). Other less popular marketing methods included print (21%), Twitter (16%), and direct mail (14%).

Cybersecurity

In 2021, lawyers are more aware than ever of the importance of implementing strong cybersecurity measures. The reason for this newfound vigilance is due to the increase in cyberattacks in recent years. Notably, however, the increased focus on cybersecurity is paying off, and the lawyers surveyed reported lower numbers of viruses, spyware, and malware.

Specifically, 36% of lawyers shared that their law firms were affected by cyberattacks in 2020, down from 40% in 2018 and 43% in 2017. Law firms took several steps – including spam filters (81%), anti-spyware (76%), firewalls (74%), and popup blockers (72%) – to prevent such attacks.

Another noteworthy finding from the survey was that solo attorneys fared better than their larger firm counterparts when it came to cyberattacks. According to the report, only 19% of solos reported that they had experienced a breach, compared to 42% of lawyers from firms with 10-49 lawyers.

Hardware And software choices

Finally, let’s turn to the technologies lawyers used, starting with hardware. When it comes to smartphones, 79% of lawyers surveyed reported iPhones were their preferred smartphones. Android phones came in second at 18%, and the once-popular BlackBerry is used by only 1% of lawyers surveyed.

Lawyers also relied on mobile tools more, which wasn’t surprising given the increase in remote work due to the pandemic. According to the report, lawyers used their laptops significantly more in the past year; nearly half (47%) of lawyers reported that their laptops were their primary work computers, compared to 39% in 2017. In comparison, less than half (49%) of surveyed lawyers used desktops as their main work computers, compared to 60% in 2017. Finally, only 1% of lawyers used tablets as their primary computers.

Next up, let’s take a look at the legal software statistics. As part of the survey, lawyers were asked about the legal software available at law firms. Conflict checking software and case management or law practice management software were the top software surveyed lawyers used. Other types of software that lawyers reported their law firms offered were specialized practice software (37%) and rules-based calendaring software (38%).

Missouri Bar members receive discounted rates from top practice management solutions, including a 10% discount on MyCase. 

The Missouri Bar’s Manage a Practice section of its Practice Management site has everything you need to select a new laptop, move to a new practice management solution, and much more. Have legal technology or practice management questions? Members can schedule a no-cost, one-on-one consultation with the experts at Affinity Consulting Group. 

Reprinted with permission of MyCase. Originally published here.

The number of potential clients searching for legal services exclusively online continues to increase. In 2018 72 percent of respondents to Thomson Reuters’ U.S. Consumer Legal Needs Survey said they consulted offline sources; this year, that ticked downward to 68 percent. Any law firm that wants more clients needs to have an online presence. Every firm without a high-quality website is losing clients since relying on word-of-mouth is no longer an option. Legal website hosting basics are essential for every firm to know – from choosing a hosting platform to search engine optimization.

What is website hosting?

Website hosting is renting or purchasing space on a server to host a website. All the images, content, and code that make a website is stored in this space, which is then accessible through the World Wide Web. To better understand it, think of website hosting like online real estate. People rent or buy a home to live in and that home is attached to an address so it can be found.

But with web hosting, a website’s address is called a domain name or URL (uniform resource locator). Then that URL is connected to the server space, using DNS (domain name system. Once it's all connected, search engines index the site and then it’s accessible on the internet.

Fortunately, setting up hosting doesn’t have to be as complicated as it sounds. Many hosting platforms simplify the process or even set it up for the site owner.

Choosing a legal website hosting platform

When it comes to hosting platforms, there are many options to consider. Each platform offers multiple plans with varying features. Deciding which is the right one should be based on a few different factors. 

Purpose and planning

Every hosting service has different capabilities, features, and services. That’s why deciding the purpose of the site is an essential first step.

So, consider what the site will need to do before looking into hosting services. Will it need to host multiple email inboxes for lawyers? How many pages does it need to host?

Another thing to think about is the goal when a potential client lands on your website. This should help answer some of the questions above. Knowing this information will also help when choosing a hosting plan.

Build or buy a site

One of the next things to consider is who will build and maintain the site. For do-it-yourselfers, ease of use should be a priority. Most hosts provide some sort of website builder in the hosting plan. However, these site builders all vary immensely in how easy they are to use. Some simplify the process so anyone can quickly build an aesthetically pleasing site. Others cater to the technically inclined and require coding in HTML.

There are even some drag-and-drop site builders available. Some products, like WordPress, utilize plug-ins that can change the building interface. Services like that make the process more user-friendly for novices.

Depending on what the site needs to do, the possibilities are limitless.

How to set up hosting

The next issue is deciding how to set up the website hosting. Just like with building the website, hosting set up varies by platform.

Most domain name sellers like GoDaddy and NameCheap also offer hosting. Although the platforms are typically more limited, the DNS and domain are connected as part of the purchase. As such, the simplest way to set up hosting is to purchase it when buying a domain name. This option is ideal for do-it-yourselfers because of the ease and convenience. All the complicated setup is completed, leaving only the page build to handle.

The other option is using an independent hosting service such as BlueHost or HostGator. This option leaves the site owner to attach the hosting space and domain. It isn’t extremely complicated to do, but it is a more hands-on setup than GoDaddy or NameCheap. YouTube has countless tutorials and walkthroughs that simplify the process.

This host setup is primarily ideal for people with time, skill, or tech interests. The main upside to hosting companies like this is storage and features. These companies offer more features, optimizations, site security, and storage than other domain sellers do.

Plans and cost

No matter which hosting option you choose, they all offer a wide selection of prices. Your firm should base this decision on your needs, features, and overall budget. Website hosting prices can vary drastically for standard service and the more advanced types, like dedicated hosting, can be very costly. Fortunately, most platforms offer lower rates to first-time customers.

However, cost should never be the deciding factor when selecting a plan or type of hosting. It all comes down to what best suits your firm's needs.

Plan options

There are different hosting plans intended to cater to different needs. Therefore, knowing the purpose and needs of the site is essential. Most hosting plans include a set amount of storage on the server, but that storage is shared by the site’s pages, photos, and content. Then storage is further used up by email inboxes for people in the organization. So, the larger an organization is, the larger the required storage.

Depending on the hosting service provider, there are many optimizations available. Some providers may include a few optimizations in the hosting package. Others offer them as addons for an additional fee.

Search engine optimization

Search engine optimization (SEO) improves a website’s location in search query results. By improving it, a website climbs closer to the top of the search results. The higher on the list a site is, the more traffic it receives.

Good SEO ranking is crucial in lead attraction, but when it comes to SEO, not all hosting services are created equal. Some even limit a website’s ranking, making SEO an important consideration when choosing a hosting platform.

Legal website hosting doesn’t have to be complicated.

There is a lot to consider when choosing a legal website hosting service. No two platforms are built the same, so it’s important to identify what your law firm’s specific needs are in a website and use that to guide your decision. You’ll also need to consider skill level and the amount of time you have for setup.

With this guide and a clear plan of your firm’s needs, you’ll be on your way to holding a domain in the digital space.

Missouri Bar members receive discounts from member benefit providers who specialize in website hosting and SEO, including Brilliant Practice by Biztourage, Digital Age Marketing Group, and Zola Creative. Missouri Bar members have access to more than 60 member benefits.

PracticePanther is a proud Missouri Bar member benefit provider. Missouri Bar members receive a 10% discount for a year on PraticePanther’s law practice management software.

Members interested in learning more about opening, building, managing, protecting, or winding down a law practice have access to the experts at Affinity Consulting at no cost through email or unlimited 30-minute virtual visits. 

Reprinted with permission of PracticePanther. Originally published here.

Many would argue video conferencing shone the brightest over the last year in terms of legal technologies, allowing lawyers to hold client meetings, make court appearances, and even attend grandma’s virtual birthday party. But just because video conferencing got the most attention doesn’t mean it was the true pandemic workhorse for law firms. Legal professionals are ultimately wordsmiths. The clients don’t need to see your smiling face, but they do need the settlement agreements, incorporation packages, or estate planning documents they hired you to draft. 

The COVID-19 pandemic was a trial by fire for most firms’ document creation, storage, and distribution methods, particularly for remote workers. Some firms  sailed through while others crashed on the rocky shoals of paper-first, no backups, conflicted copies, and the dreaded “Legal Document v4 final final I mean it this time.docx” naming convention. 

As people who spend lots of time talking about, deploying, and training on document management systems for law firms, we’re comfortable saying that not every lawyer needs a full-fledged document management system. If you’re a true solo practitioner or a solo with a single support staffer, a cloud-based document storage solution is probably a better fit. But, once you get beyond three or four firm employees, and indeed the more you scale up, the advantages of a full document management system become self-evident. 

Two ways to handle documents 

Storing your documents is passive. Document storage is a place to save documents for later retrieval and potentially sharing with others. It’s a virtual filing cabinet — nothing more, nothing less. Your computer’s hard drive, a shared server drive at your office, even cloud-based storage such as Dropbox and Google Drive: nothing happens to these documents while they’re in storage, and the users can’t do anything with the documents apart from viewing and editing them. This option might be adequate for the solo or very small firm. Click here to learn how you can get the best parts of document management for free 

Managing your documents is active. A document management system (DMS) provides the user with tools to manage, organize, and otherwise make the documents useful for the firm. A DMS will do what document storage cannot. You can see and recall each iteration of a document with view, restore, or compare capabilities. You can check documents in/out, keeping others from making changes simultaneously and creating conflicting versions of the same document. A robust DMS will index every document and email stored within it, making all content immediately searchable. A robust DMS can convert scanned documents or image-based PDF files to text-enabled documents.  

Why firms benefit from a full DMS 

Matter-centricity: A matter-centric DMS allows users to create a “matter” – a virtual file cabinet to store and manage documents, email, and notes that relate to that matter. Dropbox, OneDrive, and SharePoint do not natively understand or work with “matters” as a concept (unless you want to spend money to upgrade the services). The user is on his own in creating folders and storing files. 

Email management: In law, an email is a document like any other. A legal DMS can store, index, and manage email just as it does documents. It’s ideal to get a legal-centric DMS that integrates with MS Outlook so users can save emails directly to a matter. The holy grail of any electronic case file is its completeness. A DMS dramatically eases the process of getting an email from your inbox to the case file, where others can see it, and where it is forever bound to the case and client to which it applies. 

Document types and tagging: Law firms work with all kinds of documents: motions, orders, pleadings, complaints, contracts, and so on. By tagging documents, you can identify the exact type in your DMS. By categorizing in this way, users can quickly assess the type or nature of a document immediately. Fundamentally, these tools help people other than the document’s original author find and interact with the document. Maybe the author is on vacation and you need to print a copy of an opinion letter he sent to a client. With a DMS, you just search for documents of the type “opinion letter” drafted by the vacationing employee. 

When do you know it’s time to “graduate” to a DMS? 

Below are some questions to guide you in determining whether your firm would benefit from a DMS. 

• Do you need matter-centric organization of your firm’s documents? 

• Does your firm struggle to keep document organization consistent? 

• Do you need the ability to manage versions of documents as they evolve? 

• Do you need a process to check documents out (like library books), keeping them from being edited or forcing you to reconcile conflicted copies later? 

• Would you like scanned images to automatically become text-searchable PDFs rather than hoping individual employees remember to do this? 

• Do you need to streamline workflow by having scanners (or faxes) imported directly to your filing system? 

• Is your firm outgrowing your local hard drives or the simple cloud storage of a Dropbox or Google Drive? 

• Does your law firm want to decrease the amount and reduce the mass of paper and paper files? 

Welcoming a new DMS 

If you decide that moving to a full DMS is right for you, welcoming a new, core piece of software into your firm’s technology “stack” raises further questions: 

• What tools does the DMS integrate with? If you already have a practice management program, for example, you will want the two to play nice together. 

• What security features does the platform provide? Will it meet compliance standards for your area of practice or those imposed by your clients? 

• How much mobility will this product provide? What is the app situation like concerning iOS and Android? 

• How well does the platform organize and search files? 

• Does the platform support collaboration with internal and external stakeholders? Can you share files with the client or co-counsel directly from the DMS? 

We know we’ve given you a bunch to think about and probably raised some questions. The Manage a Practice page of the Practice Management Center contains dozens of white papers, checklists, and charts relating to this topic. If you have any questions, schedule a no-cost consultations through the Ask an Expert page or email mobarlpm@affinityconsulting.com. 

For solo lawyers or solo law firms with small support staffs, the “big boys” of legal document management systems, like NetDocuments, Worldox, or iManage, are overkill for your needs and possibly cost-prohibitive. Full-fledged document management systems (DMS) possess undeniable benefits, particularly user compliance, security, and searching. However, solo or small-firm legal professionals need not jealously eye their larger firm counterparts regarding core DMS benefits. 

Below are four core DMS features and some tips on reproducing those features with tools you already own or could acquire at a low cost. 

1. Saving 

Every full DMS possesses the ability to force user compliance. This means that the end-user is required to save files into the DMS; the system prevents saving to your desktop or a network drive. Traditional Windows or macOS open/save dialog boxes are replaced by ones directly and exclusively connected to the DMS. The obvious advantage is that every firm document resides in the DMS. 

There’s no forced compliance on where to save documents for the solo and small-firm professional without a DMS. However, human nature can take software’s place with what security researcher and host of the Security Now podcast, Steve Gibson, called “the tyranny of the default”: 

“‘[T]he tyranny of the default’…[is]…the expression I like to use for that we know most users don’t go in and change things. They just assume that someone smarter than them chose the settings that are best for them, and so they say ‘yes’ a lot when they’re asked questions…[W]hat that means is that if it’s enabled by default, it’ll tend to stay on…” (emphasis added). 

Once you set a default storage location, whether for yourself or another user at your firm, that person is unlikely to change it. A quick internet search can turn up how to change the default save location in Word for Windows (File > Options > Save), Word for Mac (if you use OneDrive/SharePoint), and Adobe Acrobat. Many other programs offer this “set and forget” save setting. Making this change means when you hit CRTL+S to save a document, you’ll start in the folder you selected as the default. Visit our whitepaper on Managing Your Documents without a DMS for tips on client/matter folder structure. For example, if you set the default location to “Clients,” you can drill down into the client and matter, saving you several save dialog clicks. And, if you forget to change the folder to the right client, at least the document is in the “Clients” folder so you can find it later, which brings us to… 

2. Searching 

Complete DMS offerings provide searching capabilities every bit as good as you see in Westlaw, Lexis, or Fastcase. You can search by document date, author, document type, document tags, and even “word X” within a certain number of words of “word Y.” 

The native system searches in Windows and macOS are good. However, with some search criteria – particularly when combining criteria, such as date plus document type plus keywords –  the free search utilities built into the operating systems fall. 

Fortunately, there are great affordable options available to enhance your document searches. For Windows users, I suggest X1 Desktop Search ($80 per year). For Mac-using lawyers, I recommend HoudaSpot ($34). Indeed, as a Mac-using lawyer, I use HoudahSpot all the time and am pleased with it. Affinity partners Paul Unger and Barron Henley would say the same about X1 as Windows users. 

With either program, you can start with a simple search, easily add or combine additional criteria, pick the folders you want to search, add and remove columns from a list of search results, and preview documents before opening them. They get you close to the quality of a DMS-based search without the added overhead and cost. 

3. Sharing 

Many DMS programs let you share files directly from their interface. Depending on the program, you can share an individual document or an entire folder. You can set an expiration date for access and permit those with access to upload files to the system or merely download them. A savvy user can replicate many of these features, though not all, via services like ShareFile, Dropbox, OneDrive/OneDrive for Business, or Google Drive. 

4. Safekeeping 

The common sync storage services listed above excel at ease of use but fall short on security. They will all serve as a form of backup for your data, which is no small thing, but they all have a weakness. Dropbox, Microsoft, Google, et al. encrypt data that you store with them both in transit and on their servers. However, the services hold the encryption keys. If they are served with a subpoena or lawful warrant, they can turn over readable data. Whether they inform you beforehand is spelled out in their terms of service. 

If you are storing client information where this possibility is untenable, look at either Boxcryptor or Sookasa. Both are affordable tools that ride on top of Dropbox, for example, and encrypt your files with a password that only you know. 

Alternatively, I recommend skipping the “normal” sync services and investigating Tresorit instead. It’s a sync service that requires you to define your own data password from the outset. They never have the opportunity to know what’s in your files. 

Keep two things in mind if you go the “trust no one” route by defining your own data password for added security. First, with any of Boxcryptor, Sooksa, and Tresorit, adding your own layer of encryption hinders the sharing features, unless you share the password with those to whom you give file or folder access. Second, if you lose or forget your encryption password, no one can save you. Your data is locked forever. 

Hopefully the above suggestions gave you ideas on getting some of the best benefits of a DMS for a solo or small firm without spending a lot of money or adding complexity to your technology setup. 

We know we’ve given you a bunch to think about, and you probably have some questions. The Manage a Practice page of the Practice Management Center contains dozens of white papers, checklists, and charts relating to this topic. If you have any questions, you can schedule a no-cost consultation through the Ask an Expert page or email mobarlpm@affinityconsulting.com. 

The COVID-19 pandemic highlighted the importance of mobility and the ability to work from anywhere. Before the pandemic, when we presented on "mobile lawyering" topics, we would spend 20% of the presentation preaching the virtues of being able to access matter information wherever you were (that doesn’t mean being “always available”). Examples included looking up facts or phone numbers at court or feeling comfortable leaving work early to attend a child's sporting event. The COVID-19 pandemic added a new spin on the importance of being able to "pick up and go."

Depending on the sophistication of your pre-pandemic setup, you may have felt some acute pains or noticed technology gaps. Below are ideas to address potential gaps.

It's not all or nothing

Don't think of going paperless, or "paper less" to start, as akin to extreme dieting. You don't have to throw out all your legal pads as though they were Halloween candy, just sitting there tempting you. If you are a fan of handwritten notes, and many studies extol handwritten over typed notes for recollection or "stickiness" in memory, then a good start would be to scan handwritten notes and file them on your computer with the other electronic documents for that matter.

If you don't have a high-quality, easy-to-use desktop scanner, we recommend the Fujitsu ScanSnap line. Their latest model, the ScanSnap iX1600, can usually be found on Amazon for about $400 and works with Windows PCs and Apple Macs. For those with mobile scanning needs, we recommend the ScanSnap S1300i and the ScanSnap iX100. Another portable option is the camera on your smartphone. Both Apple and Android app stores have several mobile apps that make it easy to scan multipage documents, use optical character recognition, and upload them to cloud storage services. SwiftScan is an excellent app for this purpose. It works on iOS and Android. An annual subscription to unlock all features costs $35.

Start with what you already have

Although full-featured document management systems ("DMS") like NetDocuments, iManage, and Worldox have wonderful, valuable features, the first step to paperless doesn't have to be opening your wallet.

If you are a solo or small firm, starting with a sync storage service places you on the right path for having the most recent version of files accessible everywhere. If you subscribe to Microsoft 365, you already have a terabyte of OneDrive space per person included in your plan. If you subscribe to Google Workspace, formerly G Suite, you have two terabytes of space per person already. If you subscribe to neither and just need cloud sync space, Dropbox's business plans start at three terabytes for $200 per year.

These offerings act as giant hard drives that save data from your computer to their servers while ensuring that any computers you connect to the service have access to the most recent versions of every saved file. The Missouri Bar's Practice Management site has an article with guidelines for managing your documents without a DMS, so the storage space has an understandable organization.

If you go this route, we recommend investing in a high-quality search program to help you locate documents. For Windows users, we suggest Copernic Professional Edition for $25 per year. For macOS, HoudahSpot is the way to go, for $35.

Meet PDF, your new pal

Going "paper less" means spending more time working with PDFs. Most legal professionals are comfortable downloading and reading PDFs, but less so with creating and customizing PDFs. Both Windows 10 and macOS can create PDFs as easily as printing to paper. You don't have to print a document and scan it back into the computer. Use the free functionality to create a PDF. Click here to learn what free PDF software can do for you.

More elaborate things with PDFs, like creating bookmarks to different pages or restricting how someone might edit the PDF you make, require spending some money to get a PDF editing program.

Everyone has heard of Adobe Acrobat, the granddaddy of PDF software. Adobe Acrobat Pro is available only as a subscription for $15 per user per month. That $15 per month subscription also includes access to Adobe Sign, Adobe's legally binding e-signature platform. If $15 per month is too much, or you dislike having more subscriptions, many PDF programs are available with the same features as Acrobat Pro (other than Adobe Sign) that you can buy on a traditional "pay once" model. Visit the PDF Programs Comparison Chart for more information.

Besides a good PDF program with editing features to replace your red markup pen, some legal professionals have found it helpful to rotate one of their computer monitors from landscape (wide) to portrait (tall). Rotating a monitor better reflects looking at a real piece of paper. Doing so is a two-step process. First, you must rotate the monitor physically. Most monitors support this out-of-the-box, but not all do. If your monitors do not rotate but do support VESA mounting, like a flat-screen TV, then a $40 stand from Vivo gets you over that hump. Second, you must tell the computer that you flipped the monitor; otherwise, everything will be sideways. Both Windows and macOS make this easy.

A potpourri of paperless practice pointers

• Audit History: For paper documents, you can't easily know who touched them last or perhaps who lost them entirely. Electronic documents stored in a cloud-sync service can keep a trail of who made what changes when. Dropbox's file recovery feature, for example, lets you look back and undo file changes for up to 180 days. Full DMS programs like NetDocuments take auditing, recovering, and restoring files to a whole other level of capability and security.
• iPractice on iPad: Once you become comfortable with digital files, if you want to set the legal pad and fountain pen aside, we recommend an iPad and Apple Pencil as your new notebook and pen. The Apple Pencil is key. No other stylus comes close. A base iPad Air ($600) with a second-generation Apple Pencil ($129) combined with either GoodNotes ($8) or Notability ($9) is a game-changer for handwriting fans. GoodNotes and Notability even search your chicken-scratch handwriting as if it were typed text and do a shockingly good job of it.
• PDF Bonus: Many full-featured PDF programs offer integration with Outlook on Windows, giving you the ability to save an email and its attachments to a "PDF-like" container where the email text is a PDF but the attachments remain in their native formats (e.g., Word, Excel, JPEG, etc.). You can save the email and its attachments as a single bundle.

Have questions? At no cost, members can ask an expert their legal technology or practice management questions via email or by scheduling a one-on-one, remote consultation.

Lawyers have an ethical obligation to preserve client confidentiality. For that reason, the need to protect client information has always been a top priority for lawyers. This means that when lawyers and their staff work remotely – a practice that has become commonplace due to the pandemic – it’s all the more imperative for lawyers to ensure that confidential client data is protected when communicating electronically. 

Because so many lawyers and staff have worked remotely over the past year, law firms have increasingly relied on online communication and collaboration tools when interacting with clients. Of course, this newfound uptick in the use of electronic communication methods has impacted the ethical obligations that lawyers have when it comes to preserving client confidentiality. That’s why it’s important for law firm leaders to understand cybersecurity issues and how those problems may affect their displaced workforces, especially since lawyers and other law firm employees will likely continue working remotely and communicating electronically for many more months. The good news is law firms have solid options when it comes to secure online communication. 

Client portals: a more secure option than email 

Since the mid-1990s, lawyers have communicated with clients via electronic means, and for many years email was an accepted way to interact with clients electronically. However, because email is inherently unsecure and is like sending a hand-written postcard through the post office, it has begun to fall out of favor – both ethically and practically – as technology continues to improve. 

That’s why ethics committees and cybersecurity security experts have increasingly recommended methods other than unencrypted email when communicating and collaborating with clients online. For example, in 2017, the American Bar Association Committee on Professional Ethics concluded in ABA Opinion 477R that due to “cyber-threats and (the fact that) the proliferation of electronic communications devices have changed the landscape … it is not always reasonable to rely on the use of unencrypted email.” Instead, the committee recommended that for particularly sensitive matters, lawyers should consider using encrypted communications, including encrypted email and the encrypted client communication portals built into law practice management software. 

Florida issues secure communication guide 

Recently, The Florida Bar issued an updated secure communications guide that included recommendations relating to remote work during the pandemic. This comprehensive guide, “Best Practices for Professional Electronic Communication,”offers an in-depth overview of the issues that arise when lawyers communicate and collaborate with clients electronically. The types of electronic communications addressed in the guide include texting, email, social media, telephones and cellphones, laptops, and court appearances via videoconference. 

Email is easily hacked 

The authors of The Florida Bar’s communications guide focused on the technology issues that lawyers need to keep in mind when communicating with clients through unencrypted email. An important factor emphasized in the guide was the need for lawyers to understand the risks associated with using technology, including email. The authors emphasized how unsecure traditional email is and encouraged lawyers to find a more secure way of communicating with clients. 

As they explained, the reason for this recommendation is that email is easily hacked. That’s why, according to the authors, if the situation should arise where a lawyer must use email, it’s important to scan each and every email that is received and sent: “Attachments may contain malicious software code. Use scanning software for both outbound and inbound emails.” 

Emails can be easily intercepted 

The authors also addressed the likelihood of bad actors interfering when using email. They cautioned that because email is inherently unsecure, it can be easily intercepted. Fortunately, they explained, one way to mitigate that risk is to use an encrypted email service: “There is always a chance that your email may be intercepted. Many of these risks are mitigated if not entirely eradicated when using an encrypted email service.” 

Of course, email encryption technology often requires the assistance of an IT expert with the ability to set up this type of system – something that can oftentimes be a complex endeavor. Nevertheless, for some law firms, encrypted email can be a viable option. 

Client ports are a secure and easy-to-use form of communication 

The authors also turned to secure client portals. Due to the risks inherent in email, they recommended that lawyers consider using secure client portals like the ones built into law practice management software. They shared that client portals are a secure, safe, and easy-to-use alternative that is one of the best ways to ensure that confidential information is preserved whenever you communicate and collaborate online with clients: “Secure client portals are an emerging and safe alternative to email. There are many case and practice management systems that offer a client portal component. You should seriously consider this option as a method of communication for confidential information.” 

Missouri Bar members receive discounted rates from top practice management solutions including MyCase. To find the practice management solution that’s best for you, check out The Missouri Bar’s practice management features checklist, cloud-based practice management comparison chart and traditional practice management comparison chart. Need additional help selecting a practice management solution? Members can schedule a no-cost, one-on-one consultation with the experts at Affinity Consulting Group.  

Reprinted with permission of MyCase. 

People are used to the convenience of electronic payments and online bills. Many studies show most people expect businesses, including retail and service providers, to offer a wide variety of electronic payment options. 

If your practice is committed to providing a 21st century client experience, you must adopt frictionless billing payment processes. Not only is doing so necessary to give your clients the service they want and deserve, but if your firm doesn’t step into the modern era with electronic billing and payments, you’ll discover another firm already has, which can make them more attractive to your clients. 

What Is frictionless billing?  

Frictionless billing is a payment process that involves fewer steps and simpler interactions. Online retailers and service providers have pioneered the frictionless transaction process for the digital age by removing the need for customers to visit physical locations, implementing one-click purchasing, and offering automatic billing. 

In the law firm context, frictionless billing involves making it easier for clients to pay by reducing the number of steps in the process. Like with online retailers, having electronic payment options is central to frictionless billing and a positive client experience. 

Frictionless billing eliminates waiting for a paper invoice to come in the mail, getting out a checkbook, and mailing a check. It also alleviates a client’s uncertainty regarding whether he or she sent the payment or the law firm received it. Instead, electronic payment options reduce the payment process to just one click in many cases.  

How electronic payment tools reduce friction for clients 

Electronic payment solutions simplify your firm’s billing process and increase the ease of submitting payment for your clients. Electronic payments can help remove barriers for your clients and enhance their experiences by doing the following: 

Eliminating paper bills 

Electronic payment solutions clean up the messy paper trail of old payment methods. Emailed invoices and online platforms your clients can log into make it easier for them to access invoices and payment records or refer for information they may need. 

Offering instant confirmation 

One of the keys to online retail’s success is the provision of instant gratification. Electronic payments offer this same feeling to clients, who can receive immediate automated payment confirmations to know that their payments have been received by their lawyers. Both the lawyer and client no longer need to wonder where the client’s payment may be. 

Facilitating preferred payment methods 

Surveys of consumers show that most people prefer paying with credit or debit cards or by other electronic means. This includes payments not only for consumer goods but for any bills they receive, including invoices from service providers like lawyers. If a law firm continues to require clients to pay by check, it only creates another point of friction in the payment process, especially for those clients who no longer use or own checks. In some cases, the friction may be too great for a client or prospective client, forcing them to look for another law firm willing to accept electronic payments. 

Allowing clients to pay on their own schedule 

The proliferation of electronic payments has taught us all the convenience of being able to pay our bills on our own schedule. If clients can pay your invoices on their own schedules rather than during your business hours, it represents a small but noticeable improvement in the client experience. 

What lawyers should consider when accepting electronic payments 

Of course, lawyers face unique issues in accepting electronic payments that many other retailers or service providers do not have. This mostly stems from lawyers’ ethical obligations with respect to client and third-party funds. Ethical rules require lawyers to separate payments received from a client or third-party that do not represent expenses or earned fees into a separate trust account. 

In the earlier days of electronic payments, lawyers did not necessarily have the option to divert client payments into trust accounts. However, in recent years, the legal industry has seen the launch of electronic payment processors targeted specifically for law firms, offering lawyers the ability to separate payments into earned and unearned funds and send funds to their proper accounts. 

Processing fees from electronic payments also posed ethical and operational issues for law firms. Lawyers cannot use payment processing to accept client payments representing unearned fees if the payment processing fees are deducted from the payment itself. Those funds still legally belong to the client, so deducting fees and expenses from client property represents a violation of ethical and fiduciary obligations. 

However, payment processors for lawyers allow firms to ensure that fees and expenses are appropriately deducted from operating accounts rather than client funds. 

From a practical perspective, payment processing fees also represent an expense or overhead that lawyers have resisted. But more and more firms are recognizing that payment processing fees should be looked at as just another cost of doing business and factored into the firm’s financials accordingly. Many lawyers also note that the minimal costs of electronic payment processing are far outweighed by the benefit of immediate, confirmed payment. 

LawPay is a proud Missouri Bar member benefit provider. Missouri Bar members who sign up for a new LawPay account between June 1-30, 2021, will pay no monthly fee for nine months. Learn More

Click here to learn more about The Missouri Bar’s member benefits. 

If you have questions or want information from those who have implemented these solutions for law firms, members can ask an expert for free via email or during a virtual visit.

Reprinted with permission of LawPay. Originally published here. 

Jennifer M. Ramovs
Jennifer M. Ramovs is the director of practice management at Affinity Consulting. At no cost, Missouri lawyers can email their practice management questions to an expert or schedule a one-on-one, remote consultation. Ramovs is available at

Whether a firm is the new kid on the block or a venerable institution, it is undeniably susceptible to a catastrophe that can appear with little notice while wielding devastating results. However, that is not to say firms are helpless to the powerful hands of the fates. With a handful of best practices, Missouri lawyers can protect their firms, teams, and clients from a disaster that might knock the proverbial wind out of a business, but most importantly, never render it irreparably harmed. If lawyers are diligent with their preparation and willing to embrace beneficial technologies and procedures, these simple tips can insulate them from the constant threat of disaster.

Get Organized

The first step in preparing for the unforeseen is to organize all files, including client files and employee documentation. This critical, initial step should encompass paper files as well as electronic data, making sure everything is concise and put into its proper place. Lawyers should use offsite, deep storage facilities whenever appropriate, as long as the facility has its own adopted procedures and mechanisms to mitigate the impact of a disaster.

Leverage Technology

Obviously, in this digitized world, data plays a critical role in nearly every aspect of a firm’s operations. As such, preserving the integrity of that data in the face of a natural disaster should be an ongoing priority for every firm. Continuing the previous step of getting organized, proper offsite storage of vital digital information must be adequately secured from both the forces of nature as well as human-based threat.

Any cloud-based data storage must be properly encrypted and secured to prevent highly sensitive information from slipping into the hands of the black hats of the world. Finding and maintaining such protocols should be mandatory for a firm’s IT department as a constant influx of case files, documentation, and client communication requires a continually fluid yet perpetually secure storage solution.

Neither courts nor clients will pause if a disaster strikes a firm, so it’s important to be prepared to seamlessly hit the ground running, no matter what catastrophes might come. Remember, locally based servers providing data backup can still make a firm susceptible to disaster if a regional calamity strikes a business, the storage provider, or the surrounding area.

Have a Preparedness Plan

Of course, in the event of a disaster, the immediate priority must be to protect staff from harm. Routinely practicing evacuation procedures makes certain all team members know precisely what to do in the event of an emergency. Regarding the office itself, lawyers should formalize a disaster plan with the office manager or equivalent, creating a list of all parties a firm might need to contact.

A preparedness plan should include insurance companies, vendors, property management, financial institutions, local first responders, and any contracted security providers or alarm systems. Firm leaders should also keep ongoing, detailed files of belongings – including office equipment, furniture, and anything else that would need to be replaced by an insurance carrier.

While it is impossible to completely shield a firm from the significant impact of disaster, even unforeseen and devastating events are not insurmountable with a bit of time, effort, and diligence. Most importantly, lawyers shouldn’t think disasters can’t or won’t strike their firms; staff, clients, and efforts are too important to underestimate nature’s indifference. Lawyers can check out The Missouri Bar’s Law Practice Management site at mobar.org/LPM for more resources to be prepared.

Endnote

1 Jennifer M. Ramovs is the director of practice management at Affinity Consulting. At no cost, Missouri lawyers can email their practice management questions to an expert or schedule a one-on-one, remote consultation. Ramovs is available at jramovs@affinityconsulting.com.

The lawyers I know like to read and write. The profession attracts folks who like researching and writing, hence the outsized number of humanities majors in our ranks. One of my favorite quotes is the apocryphal Mark Twain quote: “I didn’t have time to write you a short letter, so I wrote you a long one.” Were it a TV series, the quote would be described as “based on true events” rather than a genuine quotation. But the phrase and its sentiment go back much farther than Twain in 1871. Henry David Thoreau had a version in 1857: “Not that the story need be long, but it will take a long while to make it short.” Ben Franklin and John Locke also had their own versions. The oldest provable attribution comes from French mathematician and philosopher Blaise Pascal in 1657, who wrote, “I have made this longer than usual because I have not had time to make it shorter.” 

As harried legal professionals, we know that speed tends to produce errors and verbosity. Great minds throughout history felt this problem. There is no writer who would not benefit from an editor and no writing that would not benefit from tighter phrasing or the removal of redundant and duplicative words (see what I did there). 

Therefore, with all the humility I can muster as a writer, here are some suggestions to improve your legal writing. 

Be Concise: Active verbs are your friends here. 

Don’t write: “Defendant is guilty because of the fact that he stole the coat.” Instead write: “Defendant is guilty because he stole the coat.” 

Don’t write: “It is undisputed that defendant trespassed.” Instead write: “No one disputes that defendant trespassed.” 

Don’t write: “Tim was bitten by Sally’s dog.” Instead write: “Sally’s dog bit Tim.” 

Coupled Synonyms: The Norman Conquest is long past. 

Years ago, I took a CLE from Hamilton County Ohio Judge Mark Painter, who wrote two books on legal writing: “Write Well" and “The Legal Writer.” He walked attendees through the origin of coupled synonyms, phrases like “free and clear.” The historical reason for the coupling was one adjective was English and the other French. If you want to continue for history’s sake, that’s fine, but the coupled synonyms are unnecessary and have no unique legal effect. 

Don’t write: “Last Will and Testament.” Instead write: “Will.” 

Don’t write: “Ordered and decreed.” Instead write: “Ordered.” 

Lists: They deserve numbers or bullet points. 

Lawyers have a tendency to write lists in paragraph format. For example: “Recipient may dispose of the property by: 1) giving it to her descendants; 2) donating it to charity; or 3) selling it at auction.” Such paragraph-encased lists are not easy to spot when skimming documents. 

Instead write: “Recipient may dispose of the property by: 

1) giving it to her descendants; 

2) donating it to charity; or 

3) selling it at auction. 

Break long sentences into numbered, lettered, or bullet-pointed lists. Lists are easiest to read when each item is on its own line. When listing things, use parallel structure  — each item in the list should start with the same form of speech (such as a noun or verb). 

Use Names: Nouns are people too. 

Replace legal labels (Plaintiff, Defendant, Lessor, Lessee, etc.) with names. Good writing is about telling a story, and stories use names. 

Don’t write: “Defendant sold Plaintiff a defective toaster.” Instead write: “Big Box Co. sold Smith a defective toaster.” 

However, it is fine to use legal labels when discussing other cases or referring to classes of people. In this situation, generic legal labels reduce confusion by not introducing additional actors with “bit parts” in your story. 

Don’t write: “Big Box Co. sold Smith a defective toaster. Big Box Co.’s action violates §6 of the act. This court, in Thompson v. Giant Retailer, where Giant Retailer sold George Thompson three defective appliances, held that toasters are covered under §6.” 

Instead write: “Big Box Co. sold Smith a defective toaster. Big Box Co.’s action violates §6 of the act. This court previously held that §6 covers a retailer’s sale of a defective toaster.” Thompson v. Giant Retailer, 123 S.W.3d 456 (Mo. 2021). 

As an aside, I incline toward putting citations in footnotes rather than in line with paragraph text. I think paragraphs are more readable without the citations. Certain courts may dictate where citations appear. 

More Power: Add grammar tech to your writing arsenal. 

Microsoft Word's grammar checker has improved significantly. If you previously turned it off, turn it back on and see what it catches.  

To activate Microsoft Word’s grammar checker on Windows: click on Options under Word’s File menu. On the Proofing page, check the box to mark grammar errors as you type.  

On macOS: Click on Word menu, then Preferences, and then Spelling & Grammar. Under Grammar, check the box to mark grammar errors as you type. 

Microsoft also offers the Microsoft Editor, a writing assistant that works in Google’s Chrome and Microsoft’s Edge web browsers. While Word’s grammar checker is limited to one application, the Microsoft Editor helps improve your writing on any webpage. The free version checks just spelling and grammar. If you subscribe to a Microsoft 365 plan, the Editor also checks your browser-based writing for clarity, conciseness, formality, repetition, and punctuation. If you’re a Microsoft 365 customer, it’s free, so give it a try. 

A great non-Microsoft tool, with a devoted following, is Grammarly. It functions similarly to Editor but works not only in Word (via a plugin) and your browser, but also has iOS and Android keyboards (Grammar suggestions at your fingertips!). It also  has a full desktop app in case you write in a program other than Word. Grammarly has a free version with the same features and limitations as the free Editor. Paid versions of Grammarly start at $11.66/mo.  

Missouri Bar members also save 10% on any Wordrake subscription by using code MOBAR at checkout. Wordrake is an editing system for Microsoft Word and Outlook. 

Ready to Learn More 

See the new whitepaper, A Lawyer’s Guide to Writing Well, on the state bar’s practice management site for additional details. If a lawyer has questions or wants to do a deeper dive into writing and grammar software, schedule a free consultation with an expert or send an email to mobarlpm@affinityconsulting.com.  

Due to the COVID-19 pandemic, on March 23, 2020, the Missouri Court Automation Committee approved the temporary use of Zoom for court proceedings open to the public. The committee also allowed the existing use of Scopia video conferencing and Webex, the planned replacement for Scopia, for all court proceedings. The Missouri Court Automation Committee adopted Webex as the video technology standard for the Missouri judiciary based on the August 2020 report and recommendations of the MCA Video Conferencing Task Team, originally convened in 2018.

At its Jan. 8, 2021, meeting, the Missouri Court Automation Committee approved a Webex Implementation Plan, which included the discontinuance of Zoom. Some courts purchased annual Zoom licenses, so to account for the annual license cost and to accommodate a transition period for court proceedings already scheduled with Zoom, April 1, 2021, was designated as the end date for the temporary authorization to use Zoom for court proceedings. 

The Missouri Court Automation Committee was established by statute in 1994 to develop and administer a plan for statewide court automation, including standards for the security and privacy of confidential judicial records. Supreme Court Operating Rule 1 also grants the Court Automation Committee decision-making authority for all aspects of statewide court automation.  

View and download the Office of State Courts Administrator Webex Virtual Court Proceeding Quick Reference Guide under The Missouri Bar’s Coronavirus Resource Center. 

Have you tried to compare products or services slightly off the beaten consumer path? Or well-known products for a non-marquee feature? Despite that product’s market being worth tens to hundreds of millions of dollars, the information is difficult to come by. 

If you’re in the market for a pillow or bedsheets, there are obvious sources of information such as the website Consumer Reports that rate pillows and bedsheets on relevant categories like softness, durability, and ease of cleaning, for example. Easy enough. But suppose you want to buy a pillow made in America or in a union shop? It’s harder to come by that information in part because most buyers are not including those features in their buying decisions. In that case, your best recourse is to look for manufacturers who brag about location or employees. You could also look to sites that promote “Made in America” products. 

The same information gap occurs with tech products too. To begin with, honest feature comparison sites that aren’t littered with ads are hard to come by for the general consumer. And once found, those sites target the broadly relevant features. Websites like PC Magazine or CNET will compare Dropbox, OneDrive, and G Drive, but they’re unlikely to do so with a legal professional in mind. General audience news sources will talk price, speed, and ease of use, all relevant to legal professionals as well as the general public, but they won’t address more esoteric things important to lawyers. A PC Magazine comparison won’t address data center locations, what the service does when served with a subpoena or warrant, or how you could use a “roll your own” encryption on top of the service. 

For legal-specific products, the problem is worse. While potential buyers can compare Dropbox, OneDrive, and G Drive, software and services targeted at legal professionals have websites and marketing materials that often offer vague descriptions of capabilities, lacking important caveats, and many times hide pricing behind a “Request a Consultation” form that results in a sales call. 

These problems are exacerbated because lawyers, particularly those new to the profession or unaccustomed to comparing and choosing software, may lack a good idea of what features they want in a practice management solution, for example. 

Using Your Resources to Make Good Legal Tech Decisions 

That’s where the Law Practice Management Resource Center come into play. We’ve collected and analyzed information in key law practice tech areas so you don’t have to. Let’s walk through an example: 

Suppose you find your case and matter organization lacking. You can’t access documents unless you’re in the office. You rely on one or more people to figure out what, if anything, a client owes you and how much, if anything, the client has in their trust account. A client calls, texts, or emails you inquiring about case statuses, and you spend time rifling through emails, handwritten notes, and your memory to give updates. You talked with clients all day but, at the end of the day, are hard-pressed to remember who you talked to for how long and what was discussed. The clients are happy, but poor recollection has cost you billable time. Not good! 

If we treat this like a law school exam, we can unpack it and get an idea of issues this law office should address when evaluating a new practice management system. 

• Document access: You want to be able to access documents from outside the office. Is it just documents or do you also want access to case information? How important is it that access works well on tablets or iPhones, or is good laptop access enough? 

• Accounting: You want to know what the client owes and what’s in his trust account irrespective of whether the bookkeeper or support staffer, if any, is reachable. Do you want to know other financial information as well, like upcoming rent or office supply bills in the same program? If not, what accounting program do you use now, and will it share data with your prospective practice management program? Should clients be able to see and pay bills over the internet? 

• Case status: Most practice management programs hold general case information, party contact information, calendar dates, and tasks. Most also have some form of document storage. All would be an improvement over the “rifling lawyer” in our hypothetical scenario, but there are wrinkles in the options. How important is mobile access and from what device? Many programs can capture email and sync calendars and contacts but are you a Microsoft 365 or Google Workspace firm? Many products, particularly the web-based ones, offer client portals where the client can see upcoming appointments, share documents, exchange secure messages with the lawyer, and see bills. Is this case status “self-help” a feature you want? Some programs integrate with voice over internet phone (VOIP) systems so phone call numbers and length become proposed time entries, so you don’t lose billable time as in our hypothetical situation. How valuable is that? 

As with a law school exam, our one paragraph hypothetical became three paragraphs of additional questions and considerations. You don’t want to do all the leg work yourself! 

Our Law Practice Management Resource Center offers checklists and whitepapers to spur these types of questions. Find the checklists (here and here) and whitepaper relevant to practice management software on our Law Practice Management website. Once you’ve picked your “must have” features and prioritized their importance, then head over to the Checklists and Charts resource, scroll down to the “Manage a Practice” heading, and you’ll find two relevant comparison charts. The “Practice Management Server-based” comparison chart compares vendors offering software that would install on a desktop or server that you maintain. This route is popular with lawyers who have more complex needs, want to integrate with other desktop software such as PCLaw or Microsoft Word, and those who don’t want client data stored with a cloud-based provider. The “Practice Management Cloud-based” comparison chart compares vendors whose offerings run in a web browser, requiring little to no software maintenance on the user’s side. This route is better for lawyers newer to practice, those who are more mobile, those who desire tablet or smartphone apps, and those who don’t want to make an upfront investment in software and hardware to run traditional software. 

The comparison chart organization makes feature analysis easy. For example, if you are committed to desktop/server software over a web-based solution but want the ability to email or text appointment reminders to clients, then Coyote Analytics is your answer. Or if you’re committed to a web-based offering but want offline access to case information because you have spotty internet, then Smokeball is your answer. Missouri Bar members receive discounts on many top practice management programs, including Smokeball, at the Member Benefits section of the bar’s website. 

Finally, once you’ve selected a practice management solution, be sure to clean up your data before moving case and billing information to the new system. 

Much More to Discover 

Practice management software is just one example of high-value, legal tech decisions that the comparison charts can help you make. Comparisons exist for everything from document management solutions (that can talk to your practice management solution) to document assembly tools (that can pull information from practice management software into documents) to voice over internet phone (VOIP) that can automatically create times from phone calls. Visit all the checklists and comparison charts available for bar members. 

If you have any questions or want information from experts who’ve implemented these solutions for law practices and legal organizations, visit LPM’s Ask an Expert to email questions or schedule a phone or video call. 

Aaron Mutnick

Aaron Mutnick is an active member of the Association of Corporate Counsel - St. Louis Chapter and has a LL.M. in litigation management from Baylor University School of Law.

The year was 2010, or thereabouts, and our firm was ready to go “paperless.” The exact time doesn’t matter because it was around that time² the effects of the global financial crisis of 2008 had yielded several CLEs and articles on how to run a more efficient practice. Going paperless, or at least having less paper, was the next step that even small and midsize firms knew they had to take.

Our firm decided to do more than just invest in a good scanner, so we investigated “matter management platforms.” We read reviews, watched demonstrations, talked with fellow practitioners, and eventually landed on one of the more well-known, name-brand systems. It could track time, send out invoices, keep our calendars, integrate with email, manage documents, and even load document templates. We spent days setting it up and watching tutorials. But it didn’t work ­­— at least not for our practice. After a few months, the system was scrapped and the partners wanted a refund.

We ended up scaling down and going with a home-grown paperless solution where we stored all new documents electronically, scanned them as they came in, and used a uniform naming convention. It was fine.

So why did the more robust technological solution fail? Were we, like the infamous unfrozen caveman lawyer³ from “Saturday Night Live,” frightened and confused by the technology of the modern world? This article will show the most likely reasons that solution didn’t work for us, and why we are probably not alone in experiencing a failed implementation. They include:

• the “billable-hour mindset,” psychological biases, and personality traits common to lawyers who resist technology, and
• the fact that we didn’t have a proper framework for identifying “problems” and their technological solutions.

This article will also provide a historical context for how technology resistance has been blunted by market forces demanding a more business-like approach to the practice of law. It will conclude with a common-sense framework for how to overcome these hindrances and identify technology so easy even a Paleolithic⁴ lawyer can do it.

Why Lawyers Resist Adopting Technology

Today, most firms either rely on the billable hour as their predominant pricing model or use it as the standard by which to measure other fee options.⁵ But it hasn’t always been that way. The billable hour became the dominant method of pricing legal work in the late 1950s.⁶ Legal innovator Patrick Lamb cites economic stress on private lawyers during this time as the catalyst for this change and believes the American Bar Association “launched the billable hour revolution” with one sentence in 1958:

“Time being the lawyer’s sole expendable asset, the economic worth of his ability, training and experience is determined by the use made of the hours available for the practice of his profession.”⁷

With more than 60 years of market dominance, the billable hour is, as legal scholar Richard Susskind observed, “not simply a way of pricing and billing legal work; it is a mindset and a way of life.”⁸

Stephen Rispoli expounds on Susskind’s assertion and has identified the following psychological biases that he opines keep the billable hour as the leading billing method, and which this author believes equally explain lawyers’ resistance to technology:⁹

• Ambiguity aversion. As Rispoli explains, “[u]npredictability, both in terms of complexity of the matter and time spent, will naturally make lawyers entering into a fee arrangement concerned about revenue matching the time spent on the case.”¹⁰ This aversion equally applies to adopting new technology, especially when the unknown is being compared to something known or familiar.¹¹
   
• Self-serving or confirmation bias. Lawyers entrenched in a familiar technology or work style, or who believe the billable hour is the best pricing practice, will likely look for evidence to support those practices.¹²  For example, lawyers may cite their numerous ethical obligations as a justification for extensive hourly work, where they leave no stone unturned and paper their files with memos to each other and their clients. Likewise, if lawyers are comfortable with a technology it is less likely that they will identify problems with that technology or look for improved technologies.
   
• Status quo bias. If familiar technology and the billable hour are the status quo, then the disadvantages of any change, like implementing a matter management platform or adopting an alternative fee agreement (AFA) will “loom larger than the advantages of the AFA and consequently persuade the lawyer to stick with the billable hour. Thus, the [technology and] AFA must be significantly more profitable to be worth the change.”¹³
   
• Hedonic adaption. The idea that “positive and negative life events … have little long-term effect…[suggests] lawyers have just adjusted to [the negative effects of inefficient technology and the billable hour].”¹⁴

The billable hour and aversion to technology may also persist because the biases Rispoli identified are supported by six personality traits common to lawyers that are outside the norms of the general population:¹⁵

• Skepticism. Lawyers tend to be skeptical, even cynical, and judgmental. On a scale of 0 to 100, lawyers score a 90 compared with the general public score of 50.¹⁶ While this trait may be valuable when looking for inconsistencies during cross-examination of a witness, this trait makes lawyers less likely to accept alternatives to the billable hour and new technology. It makes them more likely to lead with questioning and doubting rather than engaging in creative dialogue.¹⁷
   
• Urgency. Lawyers score roughly 20% higher on this trait than the general public.¹⁸ They tend to have a sense of urgency, which often causes them to spend time performing billable tasks right away rather than spending time up front analyzing what tasks are necessary and in the best interest of their client.¹⁹ This also suggests lawyers may be less willing to take time to identify problems and their technological solution because of how it will interrupt otherwise urgent work.
   
• Sociability. Lawyers score low in interacting with other people, with an average score of 12.8 compared to the average of 50 for the general public. If you take out the rainmakers in firms, the average score is 7.²⁰ So, lawyers tend to spend more time isolated in their work — which they can bill — rather than collaborating with other firm stakeholders and clients on ways to deliver value in or outside of the billable hour method and with improved technology — work which they cannot bill.²¹
   
• Resilience. Lawyers on average score 30 compared to the general public’s 50.²² Lawyers tend to score low in this area “despite the outward confidence and even boldness that characterizes most lawyers ... they are more sensitive under the surface ... [which] suggests a self-protective quality.” Therefore, changing decades’ worth of practices and habits emanating from the same work processes and the billable hour can be seen not just as an unwelcome change in practice but an attack on the lawyers’ judgments. The internal dialogue may sound something like this: “I’m paid to solve problems and am ethically bound to act in the best interest of my client. If there really was a better way to do this, I would have figured it out already.”
   
• Abstract Reasoning. Lawyers score high with this trait, and while it may help lawyers see the problems of the billable hour and inefficient processes, they will also be able to reason away the problems with the obvious benefits – the billable hour and their current processes are predictable and profitable.²³
   
• Autonomy. Lawyers generally score in the 89th percentile in this trait. “[I]n other words it is common for lawyers to resist being managed, to bridle at being told what to do, and to prize independence.”²⁴ While this trait can yield high profits under billable hour formats, especially when lawyers are left alone in a “keep-what-you-kill” structure, it also makes lawyers less likely to work on a team and collaborate with clients to find methods to improve their processes and embrace alternative billing.²⁵

In spite of these biases and personality traits, the 2008 global financial crisis forced lawyers to acknowledge the obvious: a time-based method of pricing legal work incentivizes inefficiency,²⁶ duplicates effort,²⁷ and discourages case planning or management.²⁸ As Lambreth & Rueff bluntly observe, “[f]ew other industries would thrive if they measured productivity by the time their workers spent without regard to what those workers created.”²⁹ Likewise, few other industries would thrive if they were not using the most efficient, sophisticated tools available on the market. Consider our firm before it went paperless. Our paper “files” in physical filing cabinets naturally required timekeepers to spend more time searching for relevant documents when compared to electronically stored information on a searchable platform. And more time meant more money.

Nonetheless, the Billable Hour Persisted

It’s clear the 2008 global financial crisis triggered how clients, and in-house law departments in particular, purchased legal services as they began to demand “more for less.”³⁰ While that demand translated into many firms going paperless, it also created some of the earliest legal industry specific technologies, like e-discovery document review platforms. If ever there was a way to cut down on needless, process-driven tasks, it was through utilizing e-discovery tools. Sure, there were thousands of billable hours lost to the efficiencies of document review platforms, but lawyers could reason the efficiencies gained were worth it; after all, clients were generating more documents to review so there were still plenty of billable hour opportunities. Yet, even though the global financial crisis disrupted the legal market and new technologies ushered in greater efficiency, lawyers saw these developments as something to “endure and manage,”³¹ rather than something to embrace and expand. After all, their “firms [could] still make a lot of money”³² with their familiar pricing model and technology. So, of course, the billable hour and the relatively moderate adoption of technology persisted.

Fast-forward a decade later to 2018, and there were new, diverse technologies that went beyond e-discovery and began to commoditize legal services. As the Altman Weil survey authors from that year stated when reflecting on the challenges presented by the global financial crisis:

“we think law firms face a different kind of threat … broader and more nuanced, arising primarily from the sweeping force of technology evolution over the last two decades that has resulted in the commoditization and commercialization of more and more legal services.”³³ (emphasis added).

The survey doesn’t mince words — technology is a threat. Perhaps that’s because some of the efficiency yielding, commoditization technologies include analytical tools that claim they can predict legal outcomes³⁴ through artificial intelligence. But the more a technology seeks to replace the judgment and discretion of lawyers, the more the Paleolithic lawyer will, and maybe should, fight against it. So, the tools and technology that lawyers will adopt in the near term will likely be those that enhance, rather than replace, a lawyer’s decision-making, judgment, and creativity.

A Framework for Matching the Right Technology with the Right Problem

If you scan through the advertisements in legal publications, you’ll see a variety of technologies marketed to lawyers. One strategy for deciding what technology to consider is to identify the workflow processes that will face the least path of resistance to the billable hour, those biases, and personality traits discussed above. Susskind believes technology that makes administrative or process-based work more efficient, — i.e., work that requires more process than judgment, and more procedure than strategy or creativity — will bring the most immediate change to the legal market.³⁵ In other words, if lawyers can be freed from spending their time on administrative tasks by adopting technologies that reduce or commoditize those tasks, they can use that time (and possibly charge an even higher rate) to perform complex judgment-based decisions or build their businesses.³⁶

Susskind posits that efficiency-based technologies will be applied to tasks that can be routinized and undertaken more efficiently, whether by lower-cost timekeepers or through computerization.³⁷ For example, he believes, the growing number of companies in these spaces confirms document review, due diligence work, basic contract drafting, and rudimentary legal research are areas ripe for adopting efficiency-driven technologies.³⁸

According to Susskind, efficiencies in these subject areas will lead to the commoditization, decomposition, and multi-sourcing of legal work, which he describes as occurring on a continuum where legal work moves from being bespoke to standardized to systematized.³⁹  For example, a contract — even for a simple, routine transaction — may have been traditionally drafted from scratch by a senior partner. Then, with the advent of data storage and word processing programs, templates could be saved and then copied, pasted, and edited. Perhaps an associate or even a paralegal could do most of the manual work. Today, technologies don’t eliminate the need for human review, but they eliminate steps by virtue of allowing firms to create specific templates where a non-lawyer can input information from an intake form that is auto-filled into the contract and merely sent to the attorney for review.

To see what technologies, either purchased or home-grown, can eliminate steps and waste, lawyers are now utilizing the business-based, problem-solving framework of Lean and Six Sigma.⁴⁰ Combined, Lean Six Sigma provides a five-step framework that, when applied in a legal process improvement context, “helps determine the best way to carry out a work process to achieve efficiency, excellent quality of work and service, high probability of successful outcomes, and predictability.”⁴¹

The five steps to the Lean Six Sigma framework, known as DMAIC, are:⁴²

• Define the problem and why it needs to be solved. This should be client-driven with the clients defining the “problem” or what they “value” and are willing to pay for. 


• Measure the current performance of the process. This can be achieved by creating a process map, or, to use a more familiar legal term, a flowchart. By visually depicting the tasks and sub-tasks, and timing how long each may take, lawyers can identify waste, inefficiencies, duplicative work, and areas to reduce variation.


• Analyze the opportunities to reduce waste or variations. Performing a root-cause analysis⁴³ in this step will help identify decision-points or trigger events where, if a change in workflow is made, a value-added impact can occur. Some solutions may be as simple as building templates for client intake or contract creation, or even using a uniform naming convention for documents and emails to make them more searchable or subject to email rules.


• Improve the process by piloting, implementing, and validating process changes. Perhaps this is the most difficult step because it’s here that a lack of buy-in from key stakeholders will stall the process improvements. For example, if lawyers hear clients’ desire for more value, they may decide a matter management is the solution. If they delegate the implementation to associates or administrative professionals and don’t spend the time to learn the new system or validate its merits, the improvement will die.


• Control the process to ensure sustained improvements. It’s not just creating standardized processes or forms that is crucial, but also looking for tools that allow for continual improvement. This means lawyers should periodically check in with their clients to see if the “problem” has been solved or if the “value” has been delivered. Then, they can ask the client to identify new “problems” and “value” they would like to see.

A Final Word of Advice to the Paleolithic Lawyers

If you understand blockchain, robotic process automation, and artificial intelligence, then this note was not for you. If you don’t understand those things, then don’t be lured by the light of those buzzwords and their associated products. At the same time, don’t convince yourself conducting a Zoom deposition, mediation, or trial means you have fully evolved. A technology necessitated by a global pandemic is not evidence of your technological prowess.

Instead, start by acknowledging that clients are expecting lawyers to have familiarity with the clients’ issues:

“indeed, one of the reasons clients select one lawyer over another, or firm over another, is precisely that they believe that lawyer or firm has undertaken similar work previously. Most clients would be horrified to think, especially if they are being billed on an hourly basis, that each new piece of work they pass to law firms is set about with a fresh sheet of paper and embarked upon from scratch. On the contrary, the client expects a degree of standardization.”⁴⁴

Next, visit with the people who perform repetitive, administrative tasks that support, or are in the direct workflow of, billable or value-added time. Let them define their pain points. Then, walk with them through the DMAIC framework to see if there’s a technological tool that diminishes that pain. It could be something as simple as larger dual-monitors and a wireless mouse – after all, there’s no need to reinvent the wheel.

Endnotes

1 Aaron Mutnick is an active member of the Association of Corporate Counsel - St. Louis Chapter and has a LL.M. in litigation management from Baylor University School of Law.

2 See e.g. Thomas Baird, Paperless and Loving It: Technology and the Small Firm, 68 Tex. B.J. 591 (2005); Dusti Harvey and Feliz Angelica Rael, The Paperless Law Office, 1 Ann.2008 AAJ-CLE 965; Tom Overbey, The Paperless Law Office, 46 Ark. Law., 10 (2011).

3 In Season 17 of “Saturday Night Live” we were introduced to an unfrozen caveman lawyer. The following closing argument he makes fairly satirizes how lawyers may feel about technology: “Ladies and gentlemen of the jury, I’m just a caveman. I fell in some ice and later got thawed out by some of your scientists. Your world frightens and confuses me. Sometimes the honking horns of your traffic make me want to get out of my BMW and run off into the hills, or wherever. Sometimes when I get a message on my fax machine, I wonder: ‘Did little demons get inside and type it?’ I don’t know. My primitive mind can’t grasp these concepts. But there is one thing I do know – when a man like my client slips and falls on a sidewalk in front of a public library, then he is entitled to no less than two million dollars in compensatory damages, and two million dollars in punitive damages. Thank you.”

4 The reference to a caveman in the title and initial paragraph was only meant as a nod to popular culture’s use of caveman to convey the simplicity of products or technology, e.g. the GEICO caveman and the “Saturday Night Live” character. From here forward, the term Paleolithic will be used as it is gender neutral.

5 Stephen Rispoli, The Walking Dead: Psychological Biases that Keep the Billable Hour Alive, 43 J. Legal Prof. 187, 187 (2019) (“Rispoli”) citing Paul Bonner & Deborah McMurray, Alternative Fee Arrangements That Work for Clients and Lawyers,  A.B.A. L. PRAC. DIV., 30 (2014) https://www.americanbar.org/publications/law_practice_magazine/2014/may-june/alternative-fee-arrangements-that-work-for-clients-and-lawyers.html - now https://dashboard.mazsystems.com/webreader/31891?page=32

6 Rispoli at 190.

7 Patrick Lamb, Alternative Fee Arrangements: Value Fees and the Changing Legal Market (Chapter 1, Section 2, Paragraphs 2-4) (Ark Group, 2013). (“In 1958 …the private lawyer’s payroll expense had increased 52 per cent over the prior seven years ... and other operating expenses had increased 65 per cent over the same period. His income had only increased 45 per cent compared to income growth of 83 per cent for dentist and 157 per cent for doctors”).

8 Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future 17 (Oxford, 2017).

9 Rispoli at 201-220.

10 Rispoli at 201.

11 See e.g. Craig R. Fox & Amos Tversky, Ambiguity Aversion and Comparative Ignorance,  110 The Quarterly J. of Economics. 585, 585-603 (1995), https://doi.org/10.2307/2946693 (The studies referenced here show that when comparing options that are both clear and vague ambiguity aversion is present, but when evaluating only one option in isolation, the aversion seems to disappear);  Jim Engle-Warnick, Javier Escobal, Sonia Laszlo, Ambiguity Aversion as a Predictor of Technology Choice: Experimental Evidence from Peru, 1 Serie Scientifique (2007) https://core.ac.uk/download/pdf/46923023.pdf (A study of subsistence farmers in Peru showed that the adoption of modern technology depended more on the farmers’ aversion to ambiguity than their aversion to risk).

12 See e.g., Rispoli at 208 citing Sean H. Williams, Sticky Expectations: Responses to Persistent Over-Optimism in Marriage, Employment Contracts, and Credit Card Use, 84 Notre Dame L. Rev. 733 (2009); Ward Farnsworth, The Legal Regulation of Self-Serving Bias, 37 U.C. Davis L.Rev. 567, 568 (2003).

13 Rispoli at citing Daniel Kahneman et al., Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Persp. 193, 194 (1991).

14 Rispoli at 217-218 citing Jonathan Masur, John Bronsteen, & Christopher Buccafusco, Hedonic Adaption of the Settlement of Civil Lawsuits, 108 Colum. L. Rev. 1516 (2008).

15 Susan Raridon Lambreth & David A. Rueff, Jr., Power of Legal Project Management, 208-219 (American Bar Association, 2014).

16 Lambreth & Rueff at 210.

17 See generally Lambreth & Rueff at 211.

18 Lambreth & Rueff at 211.

19 See generally Lambreth & Rueff at 212-213.

20 Lambreth & Rueff at 213.

21 See generally Lambreth & Rueff at 212-214.

22 Lambreth & Rueff at 216.

23 See generally Lambreth & Rueff at 215-217.

24 Lambreth & Rueff at 217-218.

25 See generally Lambreth & Rueff 218-219.

26 Lambreth & Rueff at 266; See generally A.B.A., ABA Commission on Billable Hours Reports, at 5-7 (Gary Hengstler ed., 2002).  

27 ABA Commission on Billable Hours at 5.

28 ABA Commission on Billable Hours at 5.          

29 Lambreth & Rueff at 27.

30 Lamb at (Executive Summary, Paragraph 2); Lambreth & Rueff at 5-6; and Susskind at 20.

31 Thomas S. Clay & Eric A. Seeger, 2018 Law Firms in Transition: An Altman Weil Flash Survey at ii (2018).

32 Id. at iv.

33 Id. at ii.

34 For example, Lex Machina advertises that it can “predict the behavior of courts, judges, lawyers and parties with Legal Analytics.” LexMachina, https://lexmachina.com/ (last visited Nov. 26, 2019).

35 Susskind at 21.

36 Rispoli at 195. As Rispoli notes, “all lawyers necessarily must devote some of their time at the office to non-billable matters, including personnel issues, continuing legal education and client development,” and “as a general rule, experts [have estimated] that approximately one third of all work time is non-billable.”

37 Susskind at 21.

38 Id. at 21.

39 Id. at 21-22.

40 When applying this principle in the process improvement framework, two common approaches are used: (1) process mapping – visually illustrating the steps performed to achieve a specific end result, and (2) root-cause analysis, a problem-solving framework that examines the highest level of a problem to identify its underlying causes. Once used, these tools’ efficacy may be assessed with objective metrics like reduced cycle time, or increased percentage of desired outcomes (e.g., realization rate). See Lambreth & Rueff at 232.

41 Lambreth & Rueff at 231. At its core, legal process improvement starts by analyzing the existing state of a task, identifying areas for increased efficiencies, and eliminating waste or rework to deliver desired business outcomes. The end result is the successful development of a replicable model.

42 Lambreth & Rueff at 234-240.

43 A root-cause analysis identifies the cause of a repetitive problem in a process, one technique that can be used to perform this analysis is an Ishikawa diagram. See Lambreth & Rueff at 232 n. 2.  

44 Susskind at 27-28.

Melinda J. Bentley

Melinda J. Bentley is Legal Ethics Counsel for the Advisory Committee of the Supreme Court of Missouri.

How do you become competent in making those selections and using those technologies? What if there is a loss of a device or data? How do you train your staff? While the Rules of Professional Conduct (Rules) cannot tell you what to buy, fortunately, they do give you clear standards, and further guidance is provided through the Comments to the Rules to assist you with implementing and using technology devices and systems in your practice.² Further, by having a keen understanding of the Rules and Comments, you, as a lawyer, can be proactive in both preventing potential problems and being able to respond efficiently and ethically if a difficulty, large or small, occurs.

Key Ethics Rules: Building A Framework of Understanding

Three key ethics obligations are at the forefront of establishing a lawyer’s understanding in order to prevent potential technology problems: competence, confidentiality, and responsibilities regarding nonlawyer assistants.

Rule 4-1.1 – Competence

The first key ethics obligation underlying a lawyer’s use of technology is found in Rule 4-1.1, which states that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Further, Comment [6] provides that “[t]o 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.)

Rule 4-1.6 – Confidentiality of Information

The second key ethics obligation underlying a lawyer’s use of technology is found in Rule 4-1.6(a), which generally prohibits a lawyer from revealing information relating to the representation of a client unless an exception is met. In 2017, the Supreme Court of Missouri adopted an additional requirement for lawyers in Rule 4-1.6(c) that “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.” Such disclosure or access to confidential client information not only applies to physical information, such as paper documents in a client file, but also to electronically stored information. Think of the large amount of confidential client information lawyers have electronically. That electronic confidential client information makes lawyers’ duty of technology competence under Rule 4-1.1 that much more critical.

Reasonable Efforts on Unauthorized Access and Inadvertent or Unauthorized Disclosure. What constitutes reasonable efforts by a lawyer to safeguard confidential client information to prevent inadvertent or unauthorized disclosure, or unauthorized access? Comment [15] provides guidance to Rule 4-1.6(c) that lawyers are required to act competently regarding safeguarding this information. First, Comment [15] specifically creates three categories of safeguarding information from: (1) unauthorized access by third parties; (2) inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client; (3) and/or inadvertent or unauthorized disclosure by those who are subject to the lawyer’s supervision. When describing these categories, Comment [15] references Rules 4-1.1 (Competence), 4-5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers), and 4-5.3 (Responsibilities Regarding Nonlawyer Assistants).

Second, Comment [15] provides factors to consider in determining the reasonableness of the lawyer’s efforts, including but not limited to:

the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

Comment [15] notes that there is no violation of Rule 4-1.6(c) “if the lawyer has made reasonable efforts to prevent the access or disclosure.”³

Additionally, Comment [15] provides guidance that the client may require the lawyer to implement special security measures that are not required by Rule 4-1.6, but it also notes that a client may give informed consent to forgo otherwise required security measures under Rule 4-1.6. “Informed consent,” as defined in Rule 4-1.0(e), requires communication of “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Per Rule 4-1.0(e), guided by Comment [6], informed consent in this context means discussing the material advantages and disadvantages of forgoing security measures, discussing available options and alternatives, and possibly advising the client to seek other counsel on this decision. Factors as to reasonableness will depend on the experience of the client or if the client is independently represented by counsel.⁴

Further, Comment [15] references that it is beyond the scope of the Rules to determine if state or federal data privacy laws require additional safeguards over client confidential information, or notification in the event of a loss of electronic information or unauthorized access to such information.

Finally, Comment [15] advises lawyers to consult Rule 4-5.3 (Responsibilities Regarding Nonlawyer Assistants) and its Comments [3] and [4] regarding supervision of nonlawyer assistants outside the firm.

Reasonable Precautions in Transmission. Comment [16] to Rule 4-1.6 notes that a “lawyer must take reasonable precautions to prevent … information [relating to the representation of a client] from coming into the hands of unintended recipients.” In offering guidance on this responsibility, Comment [16] provides two factors to consider when determining if the lawyer can have a reasonable expectation of confidentiality: first, the “sensitivity of the information,” and second, “the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.”

Comment [16] provides that no special security measures are required “if the method of communication affords a reasonable expectation of privacy.”⁵ Just as with the considerations previously discussed in Comment [15], Comment [16] provides guidance that the client may require the lawyer to implement special security measures that are not required by Rule 4-1.6, but it also notes that a client may give informed consent to forgo otherwise required security measures under Rule 4-1.6. Further, a lawyer may be required to take additional steps to comply with other law, but that is an issue beyond the scope of the Rules.

Rule 4-5.3 – Responsibilities Regarding Nonlawyer Assistants

The third key ethics obligation underling a lawyer’s use of technology is found in Rule 4-5.3, which applies to a lawyer’s responsibilities for the conduct of nonlawyers who are “retained by or associated with a lawyer.” Rule 4-5.3(a) sets the requirements for firm-wide measures to ensure that partners or lawyers with comparable managerial authority make reasonable efforts to make sure the firm has measures in place to give reasonable assurance that the nonlawyer assistant’s conduct is compatible with the professional obligations of the lawyer. Similarly, Rule 4-5.3(b) requires a lawyer with direct supervisory responsibility to make reasonable efforts to make sure the nonlawyer assistant’s conduct is compatible with the professional obligations of the lawyer. Per Rule 4-5.3(c), lawyers are responsible for the conduct of nonlawyer assistants who they employ, retain, or associate with if the conduct of the nonlawyer assistant would be a violation of the Rules of Professional Conduct if engaged in by the lawyer and if one of two scenarios is present:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner, or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Comment [2] to Rule 4-5.3 provides guidance on supervising the conduct of nonlawyer assistants employed by a lawyer, including but not limited to administrative assistants, investigators, law student interns, and paralegals. It describes making sure such assistants receive “appropriate instruction and supervision concerning the ethical aspects of their employment,” particularly on preserving confidentiality.⁶ Ways to ensure appropriate instruction include written policies and protocols, as well as regular instruction on the Rules of Professional Conduct and relevant substantive areas of law in which the nonlawyer is providing assistance. Further, specific protocols should be implemented within the law firm to ensure appropriate supervision of the work product of the nonlawyer.

Comment [3] to Rule 4-5.3 provides guidance on using nonlawyer assistants outside the firm who assist the lawyer in rendering legal services to a client, including but not limited to retaining investigative or paraprofessional services, hiring a document management company, sending client documents to a third party for printing or scanning, and using a service based on the internet to store client information. Lawyers using these services still must make reasonable efforts to ensure that the services are provided in a manner compatible with the lawyer’s professional obligations, and the extent of those efforts will depend on the circumstances.⁷

Applying the Rules to Potential Technology Issues

The Growing Need for Technology Competence

As provided for in Rule 4-1.1 and its Comment [6], lawyers do have an ethical obligation to be competent in technology, including its risks and its benefits, in a lawyer’s practice. For example, a lawyer in Oklahoma was publicly censured in 2016 based on a reciprocal discipline from the United States Bankruptcy Court for the Western District of Oklahoma where the lawyer was suspended for failure to file documents in a manner that was compatible with applicable rules.⁸ The lawyer failed to report his discipline in the Bankruptcy Court to the Oklahoma Bar Association and also failed to timely notify his clients of his suspension.⁹ During the hearing before the trial panel of the Oklahoma Bar Association’s Professional Responsibility Tribunal, the lawyer “acknowledged his problems with the bankruptcy court were caused by his lack of expertise in computer skills and his frustration trying to meet the federal court’s expectations with electronic pleading requirements.” The trial panel reported that the lawyer’s problems were not with his knowledge of substantive bankruptcy law, but instead “technological proficiency.”¹⁰ The Supreme Court of Oklahoma, in issuing its public censure of the lawyer, encouraged him to “continue to improve his computer skills, or better, to hire an adept administrative assistant to do his pleadings.”¹¹

While hiring adept support staff is helpful in some circumstances when properly supervised per Rule 4-5.3, it is not a substitute for a lawyer’s own technology competency as required by Rule 4-1.1. What are some ways to gain technology competency skills? The answers will be different for each lawyer depending on the lawyer’s practice setting and level of technological savvy. One of the best ways to gain the requisite skill and knowledge about the risks and benefits of relevant technology for a law practice is by taking continuing legal education programs related to technology.¹² While Missouri does not require that lawyers receive specific minimum continuing legal education (MCLE) credits related to technology competence, it does offer MCLE accreditation of a number of technology programs that help lawyers gain and maintain professional competence as it relates to the practice of law, professional responsibility, or law office management.¹³

There are several resources readily available to help lawyers build their technology competence, including articles, publications, blogs, podcasts, and more. When it comes to these resources, lawyers should be sure to check that they are receiving information from reputable sources that are appropriate for their practice settings.¹⁴ Malpractice insurance providers may also have resources or standards for insureds.

Additionally, lawyers should read the terms and conditions of service carefully for each new hardware or software item they consider incorporating into their practices to ensure the item has appropriate safeguards for maintaining client confidential information.¹⁵ Further, lawyers should consider consulting an information technology (IT) professional for assistance.¹⁶

Email and Other Electronic Communications

If lawyers are using email to communicate with clients, they must take reasonable precautions to prevent the unintended interception of confidential client information and should only use email upon proper consideration of Rule 4-1.6 and Comments [15]-[16].¹⁷ While email may be appropriate in some circumstances, other circumstances where the lawyer is transmitting highly sensitive information may require special security measures to comply with Rule 4-1.6.¹⁸ Special security measures may include using email encryption software, placing password protection on attachments, or using “a well vetted and secure third-party cloud based file storage system to exchange documents.”¹⁹ Remember that Rule 4-1.6(c) requires a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.” In looking to the factors discussed in Comment [15] to Rule 4-1.6 as to reasonable efforts to prevent access or disclosure, consider having a conversation with the client at the outset of the representation to determine if email is an appropriate means of communication. Some points to consider are:

• How do the lawyer and the client want to use email to communicate?
• What information will the lawyer and client be exchanging by email?
• What are the terms and conditions of the platforms that host both the lawyer’s email and the client’s email? Are the platforms ensuring privacy or are they mining emails for personal information?
• How is the client going to be accessing the email?²⁰ On a personal or work phone or computer? Who else has access to that device or the email account?

Consider these points, as well as the sensitivity of the information being transmitted, to determine if additional security measures are necessary or if email should even be used.²¹ By asking some of these questions, it should help the lawyer determine if he or she is acting reasonably in using email as a form of communication.

Other forms of electronic communication may include online client portals that have communication features or by texting. Similar questions about confidentiality and appropriateness of the medium should be asked for each of these other potential forms of electronic communication.

Also, lawyers should be mindful that if they are using one of these forms of electronic communication with clients, the correspondence needs to be retained for the client files in accordance with Rule 4-1.22 (Retaining Client Files) and Advisory Committee of the Supreme Court of Missouri Formal Opinions 115 (no withholding of property belonging to the client to enforce payment of fees or expenses) and 127 (scanning client files).²²

Data Backups, Case and Document Management Systems, and Electronic File Retention

When considering how to backup data, a lawyer should consider the nature of the information to be backed up. Most of it will likely be confidential client information, but it may include items such as trust account records, business records, and much more. Whether a lawyer is considering online (i.e., cloud)and/or on-site backups, those backups pertaining to confidential client information are governed by Rule 4-1.6 and guided by Comments [15] and [16].²³

Guidance is provided to lawyers regarding cloud backups in Missouri Informal Advisory Opinion 2018-09. It describes how lawyers need to maintain competence in using relevant technology per Rule 4-1.1, safeguard confidential client information per Rule 4-1.6(c), and supervise per Rule 4-5.3.²⁴ It also cautions lawyers to read the terms and conditions of service carefully to determine ownership and security of client information and the level of access the attorney and provider will have to that client information. It goes on to describe what constitutes reasonable efforts to safeguard confidential client information while using cloud computing, including but not limited to:

• Security measures protecting confidentiality of client information during transmission and storage;
• Prompt notification of attorney in the event of a security breach or provider’s receipt of a subpoena for client information;
• Ownership of data solely by attorney or attorney’s firm;
• No access rights by the provider to client information, except as required by law;
• Regular data backup by the provider;
• Handling of client information in the event attorney’s relationship with the provider is terminated;
• Compliance with applicable law regarding data storage and transmission;
• Reliable access to data by attorney;
• No access to data by third parties, including advertisers, except as required by law; and
• Domestic storage of data or, alternatively, storage in a jurisdiction subject to United States data protection laws or equivalent.²⁵

It also provides guidance that lawyers should review the provider policies and practices periodically, as these can change.²⁶

For on-site backups, lawyers should consider such things as the physical security of the equipment storing the confidential information, level of encryption, and redundancy (the same data being stored in multiple ways in case one system fails). Lawyers should consult with an IT professional to assist in properly setting up and maintaining this system.

Many case or document management systems are now provided by vendors as cloud-based services, though some are still provided for on-site network usage. When selecting a case or document management system, lawyers should consider similar factors as just discussed for cloud or on-site back-ups.

When backing up client information, lawyers should be mindful that they are required to securely store client files for six or 10 years after the completion or termination of the representation absent having an agreement with the client based on informed consent confirmed in writing.²⁷ The six-year client file retention applies to client files where the representation was completed or terminated on or after July 1, 2016, and the 10-year requirement applies where the representation was completed or terminated prior to July 1, 2016.²⁸ “Client files, except for items of intrinsic value, may be maintained by electronic, photographic, or other media provided that printed copies can be produced. These records shall be readily accessible to the lawyer.”²⁹ Advisory Committee of the Supreme Court of Missouri Formal Opinion 127 permits the destruction of paper files (except for items of intrinsic value) prior to the expiration of the required retention period if the files are maintained electronically for the required period in accordance with the Rules of Professional Conduct.³⁰

Keeping Client Confidential Information Secure on Phones, Laptops, Tablets, Etc.

Just as lawyers have an obligation to secure physical files of clients from unauthorized access, the same is true of electronic files lawyers maintain on portable electronic devices such as phones, laptops, tablets, and other similar devices.³¹ Whether the devices are those of the firm, or lawyers and employees are permitted to bring their own devices and use them for firm business, reasonable measures may include some of the following suggestions:

• Take reasonable steps to ensure confidentiality by, at a minimum, having strong passwords to access these devices.³²
• Passwords should be changed periodically.³³
• Consider additional safeguards such as encrypting the data on these devices, using multi-factor authentication to access firm systems.³⁴
• Avoid public Wi-Fi and only choose secure Wi-Fi, as well as consider using a virtual private network (VPN).³⁵
• For lost or stolen devices, have a way to remotely disable the devices and destroy the data contained on those devices.³⁶
• Implement firewalls, keep updated anti-malware, anti-spyware, and anti-virus protections on all devices where confidential client information is stored or transmitted.³⁷
• Apply all security patches and updates for software and devices.³⁸

These suggestions are some starting points for what constitutes reasonable measures to secure client confidential information and are not intended to be an exclusive list. As previously suggested, lawyers should be sure to consider the type of client confidential information and applicable state and federal laws. The prudent lawyer will consider consulting with an IT professional, the lawyer’s malpractice insurance carrier, and other appropriate resources for additional guidance.

Metadata

Another source of client confidential information lawyers should be mindful of securing is metadata, meaning electronically embedded data.³⁹ Informal Advisory Opinion 2014-02 asks in the litigation context if a lawyer “has an ethical obligation to make good faith efforts to prevent the inadvertent electronic transmission of embedded metadata to opposing party or counsel?” Citing Rule 4-1.6, guidance is provided that the lawyer must use reasonable care to ensure that no confidential client information related to the representation is revealed without the client’s consent, including confidential information that is contained in embedded metadata.⁴⁰ It provides that this may require scrubbing documents of metadata before transmitting them.⁴¹ However, the Informal Advisory Opinion goes on to note:

Efforts to protect confidential information must be exercised in light of Attorney’s obligation pursuant to Rule 4-3.4(a) not to unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal evidence. Removing metadata with evidentiary value before transmitting certain documents may constitute a violation of laws governing discovery and therefore violate Rule 4-3.4(a). This informal opinion does not render an opinion about the existence of discoverable evidence in particular metadata or about the effect on substantive legal privileges of the pre-transmission removal or lack of removal of metadata.⁴²

Responding to a Loss of Client Confidential Information Due to a Lost Device or File, Data Breach, or Cyberattack

Lawyers are custodians of highly sensitive information and can be prime targets for hackers.⁴³ Missouri Informal Advisory Opinion 2017-02 discusses a lawyer’s ethical duties when a nonlawyer assistant has disclosed client confidential information to third parties, but the ethics analysis as it relates to disclosing this breach to the client will be similar in the event of a lost device or file, data breach, or cyberattack. It advises that lawyers have an obligation under Rule 4-1.4 (Communication) to disclose the confidentiality breach to the affected client and explain the matter to the extent necessary for the client to make an informed decision about the representation. That disclosure also needs to occur in the event of a lost device or file where client confidential information is disclosed, whether lost by the lawyer or a nonlawyer assistant employed or retained either inside or outside the law firm, as the lawyer is responsible for that conduct under Rule 4-5.3. A similar communication is also necessary in the event of a data breach or cyberattack where confidential client information is disclosed.⁴⁴

Rule 4-1.6(c), requiring reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation, also notes in Comments [15] and [16] that state and federal data privacy laws may govern or impose notification requirements upon a loss of electronic information or unauthorized access, so lawyers should be mindful of these laws both in how they choose to safeguard confidential client information and handle a loss of such information.

Working with IT Professionals and Vendors Outside the Law Firm

While lawyers may be aware of the obligations to train and supervise nonlawyer assistants within the firm, Rule 4-5.3, Comment [3] reminds lawyers that these same obligations apply regarding nonlawyer assistants employed or retained outside the firm. These include outside IT professionals lawyers may hire to help support their firms and vendors who provide services based on the internet to store client information such as data backup provides, case or document management programs, or other similarly based services used within the firm. Lawyers have the obligation to make reasonable efforts to ensure that the services are provided in a manner compatible with their professional obligations under the Rules.

Reasonable efforts will vary depending on the circumstances, “including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality.”⁴⁵ Directions should be communicated to the nonlawyer in a manner appropriate under the circumstances so as to give reasonable assurance that the conduct of the nonlawyer is compatible with the professional obligations of the lawyer.⁴⁶ Missouri Informal Advisory Opinions 20070008 and 20050068 both suggest confidentiality agreements should be used when working with nonlawyer vendors and service providers outside the firm. Such agreements are also advisable when working with outside IT professionals, as well as direct training, as appropriate, on confidentiality and other applicable professional obligations of lawyers to ensure the IT professionals’ conduct is compatible with the conduct of lawyers.

Be Aware of Scams

Lawyers are frequently the targets of potential scams, as lawyers may hold trust account funds for clients as well as sensitive confidential client information. These potential scams often start as emails from those purporting to be legitimate sources, such as potential clients, known clients, financial institutions, businesses, government entities, etc., but are actually phishing attempts to gain access to funds and/or personal information of lawyers or clients. Additionally, emails containing links or attachments from known or unknown senders may contain viruses, malware, spyware, ransomware, or other mechanisms to corrupt computer systems and/or gain access to sensitive information. Lawyers must be savvy to these potential scams and train themselves and their nonlawyer assistants to prevent these breaches.

Trust account scams are some of the most common attacks against lawyers. Lawyers who believe they may have clients who have provided fraudulent checks in an effort to obtain good funds from lawyers’ trust accounts wonder how to ethically proceed. Guidance has been provided in Informal Advisory Opinion 2018-06, which addresses such a potential scam scenario in which a lawyer’s purported prospective client sent the lawyer a bogus check for deposit into the trust account. That Informal Advisory Opinion discusses whether the lawyer may report this purported prospective client to law enforcement. Whether a lawyer-client relationship exists is a question of law and fact that is outside the scope of the Rules of Professional Conduct, but if the lawyer had a prospective client relationship under Rule 4-1.18, the lawyer would not be able to use or disclose information gained in the consultation except as would be permitted under Rule 4-1.9 as though this person were a former client.⁴⁷ If no lawyer-client relationship existed, and this person was not a prospective client, the lawyer would not have a duty of confidentiality and would be free to make a report to law enforcement authorities.⁴⁸

Conclusion

As a lawyer, you should work to gain and maintain competence in technology, engage in reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of clients, and exercise appropriate professional responsibilities over the conduct of nonlawyer assistants both inside and outside the law firm. Focusing on these key ethics rules will assist you in selecting technology devices and systems in your firm, and help prevent breaches of client confidential information. If you have questions about the Rules of Professional Conduct regarding incorporating technology into your law practice, you are encouraged to contact the Legal Ethics Counsel office (www.MO-Legal-Ethics.org) to seek an informal advisory opinion about your prospective conduct.

Endnotes

1 Melinda J. Bentley is Legal Ethics Counsel for the Advisory Committee of the Supreme Court of Missouri.

2 See Rule 4, Scope [14].

3 Rule 4-1.0(h) defines “reasonable” or “reasonably” to be “conduct of a reasonably prudent and competent lawyer.”

4 See Rule 4-1.0, Comment [6].

5 See infra discussion of email.

6 See also Mo. Informal Advisory Opinions 2018-04 and 2017-02 (interpreting Rule 4-5.3 as it applies to nonlawyer assistants within a law firm). Informal Advisory Opinions are published on The Missouri Bar’s website at: https://mobar.org/site/Lawyer_Resources/Legal_Ethics_Opinions/site/content/Lawyer-Resources/Legal_Ethics_Opinions.aspx

7 See Mo. Informal Advisory Opinion 2018-09 (interpreting Rule 4-5.3 as it applies to use of a cloud computing vendor outside the firm).

8 State of Oklahoma ex rel., Oklahoma Bar Ass’n v. Oliver, 2016 OK 37, 369 P.3d 1074 (2016).

9 Id. at ¶15, 369 P.3d at 1077.

10 Id. at ¶5, 369 P.3d at 1075.

11 Id. ¶15, 369 P.3d at 1077.

12 See Mo. Informal Advisory Opinion 2018-09 (providing guidance on technology competence through continuing legal education courses).

13 See Rule 15.04(b): “A program or activity may be an accredited program or activity if it directly contributes to the professional competency of lawyers or judges and has significant intellectual or practical content related to the development or practice of law, professional responsibility, or law office management.” See also Rules Related to The Fla. Bar, Ch. 6, R. 6-10.03(b) (requiring Florida lawyers to take at least three of 33 MCLE credit hours every three years in approved technology programs), and 27 N.C.A.C. Ch. 1D – § .1518(a)(2) (requiring North Carolina lawyers to take at least one hour annually of MCLE devoted to technology training.)

14 See Mo. Informal Advisory Opinion 2018-09.

15 See Id. and Rule 4-1.6, discussion supra; see also Legal Ethics Counsel Resource Page — Electronic Comunication Resources, http://molegalethics.org/electronic-communication-resources/.

16 See Id. and Rules 4-1.6 and 4-5.3, discussion supra.

17 See Mo. Informal Advisory Opinion 2012-01 (providing guidance on use of email).

18 Id.

19 ABA Comm’n on Ethics & Prof’l Responsibility, Formal Opinion 477R (revised May 22, 2017).

20 See Mo. Informal Advisory Opinion 990007 (providing guidance on use of email, including consideration of settings of sender and receiver).

21 See Rule 4-1.6, Comment [15].

22 Mo. Sup. Ct. Advisory Committee Formal Opinions are published on the website of the Supreme Court of Missouri at: http://www.courts.mo.gov/page.jsp?id=11696.

23 See supra discussion of Rule 4-1.6.

24 See supra discussions of Rules 4-1.1, 4-1.6, and 4-5.3.

25 Mo. Informal Advisory Opinion 2018-09.

26 Id.

27 See Rule 4-1.22.

28 Id.

29 Id.

30 See also Legal Ethics Counsel Resource Page, File Retention Resources, http://molegalethics.org/file-retention-resources/.

31 See Mo. Informal Advisory Opinion 980030 (providing guidance on preventing physical client file access in an office-sharing arrangement) and Rule 4-1.6(c).

32 ABA Comm’n on Ethics & Prof’l Responsibility, Formal Opinion 477R (2017) (revised May 22, 2017).

33 Id.

34 Id.

35 Id. See also Jill D. Rhodes & Robert S. Litt, The ABA Cybersecurity Handbook 35 (2d ed. 2018) (“Wireless communication creates opportunities for hackers to intercept sensitive data such as passwords for logging in to corporate networks and online banking sites. Public Wi-Fi locations such as airports, hotels, and coffee shops — convenient places to check email — often do not have security features necessary to protect confidential client data.”).

36 ABA Formal Opinion 477R, supra note 32.

37 Id.

38 Id. See also Rhodes & Litt, supra note 35, 21-22 (2d ed. 2018), (describing cyber-attacks against law firms due to outdated software that had not been updated).

39 See Rule 4-4.4, Comment [2] (describing metadata as a form of electronically stored information).

40 Mo. Informal Advisory Opinion 2014-02.

41 Id.

42 Id.

43 See ABA Comm’n on Ethics & Prof’l Responsibility, Formal Opinion 483 (2018).

44 Id.

45 Rule 4-5.3, Comment [3].

46 Id.

47 Mo. Informal Advisory Opinion 2018-06.

48 Id.

For the past 60 years, Missouri lawyers have learned the same statutory requirements for the creation of a valid last will and testament in Missouri: (1) it must be in writing; (2) it must be signed by the testator or someone at her direction and in her presence; and (3) it must be witnessed by two or more competent witnesses in the presence of the testator.[2]

But in reality, the requirements for the valid creation of a will have been around much longer. Missouri draws its Statute of Wills from the English Statute of Frauds of 1677,[3] and these requirements were also included in Missouri’s territorial laws prior to statehood.[4] These basic elements have remained largely unchanged for the past 450 years.

In the age of the smartphone, social media, and cloud storage, should these requirements evolve? Further, given the number of will substitutes available with less onerous execution requirements (including trusts and pre-death and on-death transfers), wills are of decreasing importance. Technological advances are nothing new, and in many ways Missouri laws have stayed current.[5] Restraint is justified to avoid fads, but the question remains whether it is time to reconsider the inviolate requirements of will preparation, execution, and probate.

The Missouri Bar recently created a subcommittee on electronic wills to consider just this issue. Missouri will not be the first state to consider permitting some form of electronic will, and it likely will not be the last. Given that there are already multiple states that permit electronic wills, the reality is that Missouri practitioners and courts will have to deal with some aspects of electronic wills – including the probate thereof.[6]

“Electronic Wills” Are Already Here

Assume you have recently been hospitalized and are told that you have only days to live.[7] You do not have much in the way of assets, but you do want to ensure that the right people receive your limited assets upon death. You have no paper and no pen, but you do have the iPad you have used to watch Netflix the past couple of weeks in the hospital. Your family and friends are at your side and you tell them that you want to make a will. You tell your sister what you want to say, and she dutifully writes everything down on the iPad with a stylus. She reads it back to you to make sure it is exactly correct. It is short – all it says is that upon your death, you want your house to go to your friend, your car to your brother, and your treasured baseball card collection to your nephew. You sign the iPad using the stylus, and so do your parents. Your mother retains the password-protected iPad until your death two days later and thereafter. A month later, your mother arrives at the probate court and asks for the forms to admit your will and open probate. Should your “iPad will” be admitted? Although the issue has never been presented in Missouri, the answer appears to be “yes.”

Present Missouri law requires that all wills be “in writing.”[8] Nowhere in Chapter 474 is “in writing” defined, but elsewhere in Missouri law, applicable to “the statutory laws of this state,” that phrase is interpreted to include “printing, lithographing, or other mode of representing words and letters.”[9] Missouri courts have consistently held that “[a]nything written, in any form, goes for a will, if it reveals the intention of the maker to dispose of his property at death.”[10] So, your iPad may well be “in writing” under Missouri law.

Missouri law also requires that the will be “signed by the testator, or by some person, by his direction, in his presence.”[11] Again, that requirement is not further discussed in Chapter 474, but it is elsewhere stated that “in all cases where the signature of any person is required, the proper handwriting of the person, or his mark, is intended.”[12] Given that you signed the iPad with the stylus, it appears that you properly “signed” your will. Indeed, had your sister signed your name or made your mark at your direction, this would have been sufficient – even if you had the ability to sign it yourself.

Finally, your will must be “attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.”[13] The testator is required to “publish” her will to the witnesses – that is, she must “either by words, acts, signs or conduct make it clear to the witnesses that he intends the paper signed to be his will….”[14] There are additional considerations for will witnesses. Although a will is not invalid because a witness receives something thereunder, if there are not two or more disinterested witnesses, interested witnesses must “forfeit so much of the provisions therein made for him as in the aggregate exceeds in value, as of the date of the testator’s death, what he would have received had the testator died intestate.”[15] Because your parents, who receive nothing under this iPad will, were the witnesses, it was properly witnessed.

Based on the foregoing, it appears your iPad will may well be valid and should be probated in the State of Missouri. While there may be additional difficulties in the probate process given the lack of compliance with the self-proving will statute,[16] the unique form and presentation of this document should not destroy your donative intent. This was exactly the situation in the Ohio case of In re: Estate of: Javier Castro, Deceased (“Castro”).[17] In Castro, the probate court for Lorain County, Ohio, probated a will prepared and signed on a tablet.[18] It determined that the requirements for a valid Ohio will (which are similar to those in Missouri) were satisfied by the tablet, which was signed by the testator and two witnesses.[19] The Castro court then opened probate for the decedent to be administered in accordance with the tablet will.[20]

While these types of “offline” electronic wills have been exceedingly rare in the law, their frequency will increase with time.[21] Both to address these scenarios,[22] as well as more fully electronic wills, a number of states and the Uniform Law Commission (“ULC”) have considered, and are considering, electronic will legislation.

The Genesis of Electronic Wills

In 2000, Congress passed the Electronic Signatures in Global and National Commerce Act,[23] which allowed for electronic signatures in “any transaction in or affecting interstate or foreign commerce.”[24] But like Missouri’s adoption of the Uniform Electronic Transactions Act,[25] that statute specifically excepted any “statute, regulation, or other rule of law governing the creation and execution of wills, codicils, or testamentary trusts.”[26] Consequently, current law was of no assistance to those seeking to execute an electronic will.

One year later, however, the Nevada Legislature passed Senate Bill 33, which was signed into law by Gov. Kenny Guinn on June 6, 2001.[27] What could have been a revolutionary change in probate law, however, never really came about. The 2001 Nevada statute provided that electronic wills were valid so long as they (1) are written, created, and stored in an electronic record; (2) contained the date and the electronic signature of the testator and which includes, without limitation, at least one authentication characteristic of the testator; and (3) created and maintained such that (i) only one authoritative copy exists; (ii) that copy is maintained by the testator or custodian; and (iii) authoritative copies are readily identifiable as such.[28] The requirement for an “authentication characteristic” included things such as a “fingerprint, a retinal scan, voice recognition, facial recognition, [or] a digitized signature.”[29] These requirements were seen as onerous, especially in a state that allows for holographic wills.[30] As a result, Nevada electronic wills under the 2001 statute never gained wide popularity.

The Recent Push for Electronic Wills

Over the past several years, there have been renewed discussions regarding electronic wills. Companies that seek to offer online electronic will services have advocated for an overhaul of states’ probate codes to allow for those documents.[31] Three states have joined Nevada in allowing electronic wills, and the ULC recently passed a model act.[32]

Nevada revised its electronic will statute in 2017.[33] The state expanded on the provisions allowing for a valid electronic will by adding notarial certification and dual witnessing as alternatives to the existing “authentication characteristic.”[34] But Nevada went a step further. There, required notarial certification and/or witnessing can be performed remotely. While the notary and/or witnesses must be in the “presence” of the testator, presence includes “[d]ifferent physical locations but can communicate with each other by means of audio-video communication.”[35] Further, the Nevada statute provides that a will can be validly executed under Nevada law even outside the State of Nevada so long as (1) the document states that Nevada law applies; (2) the witnesses or notary are in Nevada; or (3) the testator understands and intends to make a Nevada will.[36] The net result of this is that a Missouri testator, from the comfort of his or her couch, can make a legally binding Nevada electronic will without ever leaving the state. And when that testator dies, Missouri courts will be left to struggle with whether and how to probate that will.

Similar legislation was proposed in Florida and passed by the legislature in 2017,[37] but was ultimately vetoed by Gov. Rick Scott.[38] In his veto letter, Scott raised concerns regarding the electronic notary and other provisions, including remote witnessing.[39] Scott recommended that the legislature “address the issues comprehensively during the next legislative session.”[40] In 2019, the Florida Legislature passed, and Gov. Ron DeSantis signed, House Bill 409 that will go into effect January 1, 2020.[41] Similar to the prior proposed legislation, this new law will permit remote witnessing and notarization.[42] Importantly, however, Florida will not permit “vulnerable adults”[43] to have documents recorded in electronic format, remotely notarized, or remotely witnessed.[44]

In 2018, the Indiana Legislature passed, and Gov. Eric Holcomb signed, House Bill 1303, which permitted for the first time electronic wills in Indiana.[45] That bill added a new Chapter 21 to the Indiana Probate Code. The Indiana electronic will law does not allow for remote notarization or remote witnessing.[46] It provides for significant regulations that must be followed, including directions to the testator, maintenance of the electronic will, filing of the electronic will, and revocation of the electronic will.[47] Indiana further states that electronic wills are only valid if they were validly executed (1) in Indiana; (2) in the state where the testator was physically present at execution; or (3) where the testator died.[48]

Arizona has also passed electronic will legislation that went into effect July 1, 2019.[49] Similar to Indiana, Arizona also requires the physical presence of the testator, witness, and notary public.[50] To be self-proving, the electronic will must also designate a custodian who is neither related to the testator nor a recipient of any bequest under the electronic will.[51] That qualified custodian must also maintain a photograph of the testator and the witnesses, a video and audio recording of the execution, and copies of all parties’ relevant identification.[52] Similar to Indiana, that bill also contains other procedural mechanisms and safeguards.[53]

Other states and territories, including New Hampshire, Virginia, California, and the District of Columbia have either introduced or considered legislation relating to electronic wills. To date, none of these has become law.

The ULC Process

The ULC (formerly known as the National Conference of Commissioners on Uniform State Laws), “established in 1892, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.”[54] Missouri has adopted, either in whole or in part, dozens of uniform state laws. In the probate and trust context, this includes the Uniform Trust Code, the Uniform Fiduciary Access to Digital Assets Act, the Uniform Simultaneous Death Act, the Uniform Transfers to Minors Act, and others. Often, Missouri practitioners will be involved either directly with the drafting of, or input into, the proposed uniform law.

In October 2017, the ULC Committee on Electronic Wills began working on drafting a model statute. In considering legislation, the committee considered 10 key issues:

1. What is an electronic will?

2. What definitions will be needed?

3. How is an electronic will created?

4. How should an electronic will be signed?

5. How will an electronic will be stored?

6. What is the effect of a codicil?

7. How is an electronic will revoked?

8. Will an electronic will executed in one state be valid in another?

9. Should there be a supervisory entity for service providers?

10. What are potential costs and fiscal notes?[55]

In March 2018, this committee produced its first draft of a model electronic wills act.[56] That draft legislation attempted to answer certain of the aforementioned questions, but in a way that would allow states maximum flexibility given varying probate laws. That committee continued its work and ultimately approved and recommended for enactment in all states the Uniform Electronic Wills Act during its July 2019 annual conference.[57]

Caution is Justified

A balance must be achieved between recognizing the traditional functions of a will or other testamentary document and the benefits of evolving technology. It has been stated (and recognized by ULC)[58] that a will traditionally serves four functions:

1. The evidentiary function: One of the primary purposes of a will is to provide the court and the beneficiaries with evidence of the testator’s intent and wishes;

2. The channeling function: Wills force testators to formally set forth their wishes in a somewhat standardized format;

3. The cautionary function: By maintaining a seriousness to formal will execution and probate, the testator’s true and final intentions are realized; and

4. The protective function: The heightened requirements of will execution tend to discourage improper influence, as well as forgeries and perjury.

With these goals in mind, the question is whether these same functions can be achieved in a time of ever-evolving technology. Missouri may avoid “will by text message” or “will by Twitter,” but there are certainly options that can be considered to modernize Missouri’s requirements to incorporate technology while maintaining the safeguards and functions identified above. In so doing, one temptation to be avoided is to look at electronic wills only in terms of today’s technology. What would have happened if Missouri passed “will-by-fax” legislation in the 1980s or 1990s?

Regardless of whether statutory modification is ultimately adopted, it should at least be considered. As stated above, these issues may already arise, such as the Castro tablet will. And given the fact that other states now permit electronic wills, Missouri will need to address how to probate them. Statutory modification will prevent the likely haphazard results that would come with 115 probate courts independently considering tablet and foreign electronic wills, and, if completed correctly, will similarly avoid the need to wait for appellate guidance on what could be, by that time, outdated technology.

Even though some states have already enacted electronic will legislation, and others undoubtedly will, there is no need to rush into comprehensive electronic will legislation. Much will be learned from the experiences of the ULC and the other states that are considering this issue. More ideas will emerge, and Missouri can be guided by reviewing many different options for potential implementation. The likelihood of harm is much greater with rushed legislation than with addressing a small number of fact-specific probate inquiries. The ULC has stated that the goals of a statute on electronic wills should include:

1. To allow a testator to execute a will electronically, while maintaining the safeguards wills law provides for wills executed on something tangible (usually paper);

2. To create execution requirements that, if followed, will result in a valid will without a court hearing to determine validity, if no one contests the will; and

3. To develop a process that would not enshrine a particular business model in the statutes.[59]

These goals are worthy of consideration. Missouri occupies an odd position when it comes to probate and trust laws. In some areas, it is a leader and one of the first to adopt legislation. But in others, it is less willing to consider changes adopted in other states. By way of example, Missouri still does not allow holographic wills (unless the formalities of Missouri’s Statute of Wills are met); nor does it allow for even harmless errors in the execution of wills. One thing for which Missouri is well known, however, is the careful and deliberate consideration of changes to its probate and trust laws. Electronic wills should be no different.

Items to Consider

In moving forward in this process, there are a number of things to consider. These are not dissimilar to the questions that the ULC has identified above, but Missouri has a few unique issues. Missouri still operates largely on its own probate code that was adopted in the 1950s. Missouri did not adopt the totality of the Uniform Probate Code, on which aspects of the ULC model legislation is based. As a result, Missouri will need to review its probate statutes to determine which provisions would need to change to allow for electronic wills.

Assuming the threshold question of whether Missouri wants to consider electronic wills is answered in the affirmative, the next issue will be in what form and how far Missouri will go. There are ways to draft electronic will legislation that looks much more like a traditional will execution as opposed to “will by text.” Many believe the functions listed above and the safeguards in the current Statute of Wills can be maintained yet updated. Others are likely to say that the current system works just fine. But the reality is the majority of the members of Generation X and later do not have estate plans. Specific issues to consider would include the following:

1. Should Missouri require the witnesses and the notary to be in the same physical location as the testator, or should it embrace the concept of “electronic presence”?

2. Should Missouri consider changes to the notary public laws to allow for remote online notarization irrespective of the electronic wills issue?

3. Should Missouri require that the electronic will be in a written medium, or should it consider audio or video wills?

4. How should Missouri handle the revocation of electronic wills where many electronic copies may exist?

5. Should Missouri consider utilizing custodians for these documents?

6. Should Missouri create a procedure for creating a paper copy of the electronic document to be probated?

7. Should Missouri consider a “harmless error” statute for written or electronic wills such that documents not in conformity with the statutory requirements could still be admitted based on a showing of clear and convincing evidence?

Even assuming Missouri does not wish to enact comprehensive electronic wills legislation, it must still address whether to admit to probate electronic wills from other states. Currently, Missouri courts will probate a will if it is validly executed “where the will is executed.”[60] Given that states such as Nevada and Florida will deem electronic wills executed in those states even when done so remotely (including from Missouri), that statute should be addressed regardless.[61]

Missouri must also decide whether this discussion should include trusts as well as wills.[62] Our state law already recognizes that trusts have lower execution requirements than wills. Missouri trusts are not even required to be in writing (unless they transfer an interest in land).[63] It would therefore make sense – if changes are considered to the requirements for the execution of a will to allow for electronic wills – that clarifications are also considered on electronic trusts and potentially other electronic estate planning documents as well.

Conclusion

“[I]n this world nothing can be said to be certain, except death and taxes.”[64] Missouri law has, for longer than its statehood, recognized that its citizens are free to dispose of their property by will. Now, centuries later, there are available technologies that could make it easier than ever for Missourians to express their donative intent. But as with all technology, these changes come with consequences and potential dangers. Missouri should consider if, and how, to allow for the drafting, execution, and probate of electronic wills.[65]

Endnotes

1 John M. Challis is the chairperson of The Missouri Bar Subcommittee on Electronic Wills and chairperson of The Missouri Bar Fiduciary Litigation Committee. He is a partner in the St. Louis office of Kirkland Woods & Martinsen, LLP. Challis is a frequent speaker on topics related to probate and trust administration and litigation throughout Missouri. He can be reached at (314) 944-5201 or jchallis@kwm-law.com.

2 Section 474.320, RSMo 2017. A narrow exception applies for noncupative (oral) wills made by persons in “imminent peril of death” that are limited to $500 in property. Section 474.340, RSMo 2017.

3 29 Car 2 c 3.

4 Act July 4, 1807, 1 Terr. L., p. 131, § 18.

5 By way of example, in 2003 Missouri adopted the Uniform Electronic Transactions Act. Section 432.200, RSMo 2017, et seq. This act provides, in part, that “[a] record or signature shall not be denied legal effect or enforceability solely because it is in electronic form.” Section 432.230, RSMo 2017. Anyone who has used DocuSign or similar services is familiar with these types of documents. But this act specifically does not apply to the “creation and execution of wills, codicils, or testamentary trusts.” Section 432.210.2, RSMo 2017.

6 Section 474.360, RSMo 2017, provides that a will is valid and may be probated in this state if it is “executed in compliance with: . . . (2) The laws, as of the time of execution, of the place where the will is executed.” As a result, if an electronic will is validly created in any state that permits such documents, it can be admitted to probate in Missouri.

7 Further assume that you are at least 18 years of age and of sound mind, such that you are capable of making a will. Section 474.310, RSMo 2017.

8 Section 474.320, RSMo 2017.

9 Section 1.020(22), RSMo 2017.

10 Adams v. Simpson, 213 S.W.2d 908, 913 (Mo. 1948).

11 Section 474.320, RSMo 2017.

12 Section 1.020(22), RSMo 2017.

13 Section 474.320, RSMo 2017. It should be noted that although most wills prepared by practitioners contain “attestation clauses” that will recite the matters witnessed – specifically the capacity of the testator, the request of the testator to witness the document, and the presence with the testator – such clauses are not required in Missouri to create a valid will. Burkland v. Starry, 234 S.W.2d 608, 611 (Mo. 1950).

14 Hodges v. Hodges, 692 S.W.2d 361, 369 (Mo. App. S.D. 1985).

15 Section 474.330, RSMo 2017.

16 Section 474.337, RSMo 2017 provides that a will may be self-proving (and thus eliminating the need for the witnesses to testify as to its admission) if the statutory form is followed, including the presence of a notary public. While self-proving wills are advisable and easier to admit to probate, a non-self-proving will may still be admitted to probate upon proof in solemn form.

17 No. 2013ES00140 (Lorain Co. Ct. of Common Pleas, Jun. 19, 2013), available at 27 Quinnipiac Prob. L.J. 412 (2014).

18 Id. at 414.

19 Id. at 416-17.

20 Id. at 418.

21 The lack of legislation also leaves open questions, including whether a /s/ or other electronic signature would suffice in Missouri. A court in Tennessee has already held that it is sufficient under that state’s law. Taylor v. Holt, 134 S.W.3d 830, 831 (Tn. Ct. App. 2003).

22 While these facts lead to the likely conclusion that the “tablet will” is admissible to probate, one could imagine slight changes to this scenario that would make the question of the admissibility a much more difficult question. For example, the Michigan Court of Appeals admitted an unsigned electronic note on the decedent’s phone under the Michigan “harmless error” statute. Estate of Horton, 925 N.W.2d 207 (Mich. Ct. App. 2018). These types of “harmless error” statutes permit the admission of a will that does not comply with the statutory requirements. Only 11 states have such statutes, and Missouri is not one of them.

23 114 Stat. 464 (2000).

24 15 U.S.C. § 7001.

25 Section 432.210.2, RSMo 2017.

26 15 U.S.C. § 7003(a)(1).

27 Nev. S.B. 33, 71st Session (2001).

28 Nev. Rev. Stat. § 133.085 (2001).

29 Id.

30 Holographic wills are those which are written and signed by the testator, but otherwise not witnessed or executed with the normal formalities of a will. See Nev. Rev. Stat. § 133.090 (2001). Missouri does not permit holographic wills to be validly executed Missouri wills, but will probate holographic wills validly executed in other states. Section 474.360, RSMo 2017; see also 5 Mo. Prac., Probate Law & Practice § 254.

31 Willing.com, Modernizing The Law To Enable Electronic Wills, available at https://willing.com/learn/modernizing-the-law-to-enable-electronic-wills.html (last visited Oct. 5, 2019).

32 Information related to the ULC’s efforts on electronic wills is available at https://www.uniformlaws.org/committees/community-home?CommunityKey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71 (last visited Oct. 5, 2019).

33 Nev. A.B. 413, 79th Session (2017).

34 Nev. Rev. Stat. § 133.085 (2017).

35 Nev. Rev. Stat. § 133.088 (1)(a)(2) (2017).

36 Nev. Rev. Stat. § 133.088(1)(e ) (2017).

37 Fla. Comm. Sub, H.B. 277, 2017 Session (2017).

38 Letter from Gov. Rick Scott to Secretary of State Ken Detzner (June 26, 2017), https://www.flgov.com/wp-content/uploads/2017/06/HB-277-Veto-Letter.pdf (last visited Oct. 5, 2019).

39 Id.

40 Id.

41 Fla. Comm. Sub, H.B. 409, 2019 Session (2019).

42 House of Representatives Staff Analysis of Fla. Comm. Sub, H.B. 409, 2019 Session (2019) available at https://www.flprobatelitigation.com/wp-content/uploads/sites/206/2019/09/h0409z1.CJS_-1.pdf (last visited Oct. 5, 2019).

43 “‘Vulnerable adult’ means a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.” Fla. Stat. Ann. § 415.102(28) (2019).

44 Fla. Comm. Sub, H.B. 409, 2019 Session (2019).

45 Ind. H.B. 1303, 2018 Session (2018).

46 Ind. Code § 29-1-21-3(1) (2018); Ind. Code § 29-1-21-4 (2018).

47 Ind. Code § § 29-1-21-6 - 29-1-21-18 (2018).

48 Ind. Code § 29-1-21-7 (2018). This would appear to avoid the issue of Nevada or other wills remotely executed from Indiana being probated in Indiana.

49 Ariz. H.B. 2471, 53rd Session (2018).

50 Ariz. Rev. Stat. § 14-2518.

51 Ariz. Rev. Stat. § 14-2519

52 Ariz. Rev. Stat. § 14-2520.

53 Ariz. Rev. Stat. §§ 14-2518 - 14-2523.

54 ULC, About the ULC, UniformLaws.org, http://www.uniformlaws.org/aboutulc/overview (last visited Oct. 5, 2019).

55 ULC, Memorandum to Electronic Wills Drafting Committee, UniformLaws.org, https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=3cb4e4f1-3f38-1e03-2bc1-43c3dabc0af5&forceDialog=0 (last visited Oct. 5, 2019)

56 ULC, Draft Electronic Wills Act for March 2-3 Meeting, UniformLaws.org, https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=52b77166-bcfe-ca8c-4e78-284605a64781&forceDialog=0 (last visited Oct. 5, 2019).

57 ULC, Uniform Electronic Wills Act, UniformLaws.org, https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=1dec19cc-1300-7d16-c652-6bb8e5b9d959&forceDialog=0 (last visited Oct. 5, 2019).

58 John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489 (1975).

59 ULC, Uniform Electronic Wills Act, Prefatory Note, UniformLaws.org, https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=1dec19cc-1300-7d16-c652-6bb8e5b9d959&forceDialog=0 (last visited Oct. 5, 2019).

60 Section 474.360, RSMo 2017.

61 Ohio, for example, recently revised its probate laws to state that in order to be validly executed in another state, the testator must be “physically present” in that state at the time of execution. Ohio Rev. Code § 2107.18.

62 Missouri’s version of the Uniform Electronic Transfers Act specifically excludes “testamentary trusts,” but no mention is made of trusts created during the grantor’s life. Section 432.230, RSMo 2017. Consequently, an argument can be made that such lifetime trusts can already be executed electronically. But given the lack of certainty, additional statutory modifications should be considered.

63 Section 456.4-401, RSMo 2017 et seq.

64 John Bigelow, The Works of Benjamin Franklin, Vol XII (1817).

65 If you would like to be involved in the process of considering electronic will legislation in Missouri, please contact the author.

Nearly 100 years ago, when Judge Cardozo famously commented, “law never is, but is always about to be,”³ he could not have anticipated the concept of “virtual assistants” like Amazon’s Alexa, Apple’s Siri, Google’s Assistant, Microsoft’s Cortana, or Samsung’s Bixby. Yet, his quote perfectly sums up the new frontier in law as more and more people integrate speech recognition technology into their everyday lives.

Although “speech recognition” may sound like a lofty term, it simply refers to what most of us do daily, when we use our voices to ask our phones to dial our friends, our cars for directions, and our speakers to play our favorite songs. Speech recognition is “the ability to speak naturally and contextually with a computer system in order to execute commands or dictate language.”⁴ Technology rivals are hard at work creating irresistible versions of easy-to-use devices with which we can talk and have questions answered.⁵ For the most part, this technology has become so good that a simple command, or “wake word” (“Alexa?!”), allows us to ask our virtual assistants a host of questions from what is today’s weather to who was the fifth President of the United States.⁶

Amazon, maker of the Echo (Alexa), a hands-free speaker you control with your voice, touts that the Alexa Voice Service, which is integrated into the Echo, is “always getting smarter.”⁷ When you interact with Alexa, she streams audio to the cloud. Amazon’s Terms of Use for the Echo duly notifies users that “Alexa processes and retains your Alexa Interactions, such as your voice inputs, music playlists, and your Alexa to-do and shopping lists, in the cloud to provide and improve our services.”⁸

For most people, their virtual assistants’ ability to always be listening for their “wake words” is helpful. When we are driving, this allows us to complete tasks hands-free, avoiding distractions, as well as moving violations. While we are making breakfast in the morning, contemplating getting to work or to court on time, we can ask Alexa how long the morning commute will take. Alexa also allows us to use voice commands to turn on the light while walking into a dark room, without having to search for the light switch.

Many large tech companies believe that voice commands and intelligent assistants will become the primary ways in which people interact with technology, possibly even more significant than touch screens and keyboards.⁹ Voice control has rapidly evolved from a quirky and interesting technology to a “must have” capability in new devices.¹⁰ Virtual assistants are being adopted seamlessly to stay.¹¹ Microsoft reports that Cortana, launched in 2014, now has 145 million users and has handled 18 billion tasks.¹² Apple claims it has reached two billion Siri interactions each week, with [an estimated] 41.4 million currently active users….¹³

This “space age” technology sounds great. However, if you believe that all artificial intelligence designed to serve us can do us no harm, just consider any number of science-fiction movies, which now seem more real than fiction, where humans are nearly done in by artificial intelligence machines, which were created with the intent of serving, not harming, us.¹⁴

Defense attorneys are among those lawyers who should consider how they can use virtual assistants’ recordings to shed light not only on how accidents occur, but also to challenge plaintiffs’ personal injury claims. The recent Arkansas trial of James Bates for the murder of his friend, Victor Collins, who was found dead, floating face-up in Mr. Bates’ bathtub, sparks debate regarding the first issue: Can Alexa actually record a murder or, in the personal injury context, an accident?¹⁵ In Bates, the prosecution asked Amazon to disclose recordings from Mr. Bates’ Amazon Echo.¹⁶ Amazon refused, citing privacy concerns.¹⁷ Ultimately the issue went unresolved, without addressing Amazon’s position regarding privacy concerns, when Mr. Bates voluntarily turned over the recordings.¹⁸

While the Bates case does not resolve the constitutional issue of whether Amazon may use the First Amendment’s protection of free speech to refuse to disclose the recordings gathered by our Amazon Echoes, it does highlight the fact that users have access to their recordings and, therefore, can willingly disclose them. Amazon’s Alexa App keeps a history of the voice commands that follow the wake word (“Alexa!”). Specifically, in response to a user’s question, “Can I review what I have asked Alexa?”, Amazon states “Yes, you can review voice interactions with Alexa by visiting History in Settings in the Alexa App. Your interactions are grouped by question or request. Tap an entry to see more detail, provide feedback, or listen to audio sent to the Cloud for that entry by tapping on the play icon.”¹⁹

We also know that Alexa can record events, such as a crime or an accident, because Echo is equipped with seven microphones that use beam-forming technology and enhanced noise cancellation. Alexa also has a camera, though it is off until a user activates it by asking Alexa or using the Echo Look App to take a photo, video, or use live preview. Alexa’s evidentiary value can also be found in the circumstantial evidence she can provide regarding a plaintiff’s day-to-day life, which can assist defense attorneys preparing for depositions and trial. Questions and commands from parties to their virtual assistants can provide valuable information regarding the places parties have visited since the alleged incident, their hobbies, and activities in which they are involved.

For example, by knowing that plaintiffs have asked their virtual assistants about the commute times to a certain office building, or their requests for Alexa to hail an Uber for them, defense counsel can ask more targeted questions during depositions, including whether plaintiffs have worked since the accident or have traveled or gone on vacation. The value of these records can be immeasurable, given the wide array of commands to “virtual assistants,” including giving definitions of new terms and phrases (“Siri, what is meant by ‘Big Data’?”); playing music (“Alexa, play songs by the Judybats”); assisting in recreation (“Siri, where can I play court tennis in the United States?”); (Alexa, how can I play golf at High Ridge Country Club?”); answering any number and variety of factual questions (“Siri, for which projects has Sciame Construction won awards?”); (“Alexa, which famous people are named ‘Oona’?”); (“Cortana, how do I apply for a Fulbright Scholarship in The Netherlands?”); (“Bixby, what were the ‘moral imperatives’ in ‘Real Genius’?”); (“Siri, who are the leading female poets in New York City?”); (“Google, which movie directors live in Brooklyn?”); (“Bixby, when did the Beach Boys record ‘I Get Around’?”); (“Siri, who is Phil Ochs?”); (“Cortana, how did Holly Golightly in ‘Breakfast at Tiffany’s’ support herself financially?”); going to events (“Bixby, where is the Songwriters Hall of Fame located?”); and securing prices for travel (“Alexa, ask Kayak how much it costs to fly from New York to Easter Island.”). Virtual assistants can also set up timers and alarms, thereby providing defense counsel with valuable information regarding when a person gets up in the morning and their appointments during the day. Alexa can even be used to begin a workout (“Alexa, ask Random Workout to pick a workout.”), which can be significant in those cases where plaintiffs claim to have sustained substantial physical limitations as a result of an accident.

It cannot be overstated how valuable this information can be to gain insight into a plaintiff’s everyday activities, which is often the essential element of most personal injury claims. Defense attorneys know that, when it suits plaintiff’s interests, plaintiffs often do not provide a wealth of information regarding their past day-to-day activities. Armed with a compendium of plaintiffs’ virtual assistants’ searches, however, defense counsel can refresh plaintiffs’ recollections regarding what people did on a certain day, even whether plaintiffs tried to call 911 for help,²⁰ thereby leading to more effective and meaningful questioning. This may be especially helpful if plaintiffs are trying to conceal their actual lifestyles. Like Facebook photos from a vacation, Alexa can be used to expose those plaintiffs who fail to testify truthfully and candidly regarding their injuries and ability to carry on activities of daily life.

The other side of the coin is that those plaintiffs who are ethically challenged can conceivably use their virtual assistants strategically, for example, by asking Alexa for information which would tend to validate their false narratives. For example, someone who is basically physically fine but nevertheless eyeing a potential personal injury suit as a result of an accident may be tempted to ask, “Alexa, add knee brace, cervical collar and Aleve to my shopping list.” – personalized “fake news,” if you will. As it is, this past July, British Security Researcher Mark Barnes warned of a technique that can be used to install malware on Amazon Echo that would silently stream audio from the hacked device to a faraway server, in essence, tapping the Echo.²¹ Since AI assistants can provide a “real time” autobiography, with malware, that autobiographical information can be read by those who were never intended to have access to that private information. Forewarned is forearmed.

Amazon Echo is not the only piece of technology that has the ability to alter the way we practice by collecting valuable information. Other smart devices, including the pedometer feature on our iPhones and Fitbits, can also provide valuable information regarding a person’s fitness level, including the number of steps a person takes and when they take them. This data, like other documentary evidence, is likely to be more accurate and informative than deposition testimony, which was taken only after a preparation session with an attorney and relies on a person’s memories of events that may have occurred years before the deposition. Opposing counsel devote considerable time and effort to obtain definitive answers from plaintiffs, pinning down physical fitness regimes before and after an accident, with some plaintiffs testifying that they used a run a 5K every weekend and now run “less,” “not as much,” or “not at all.” Plaintiffs have been known to respond with limited or vague answers to these probing questions at depositions. Now, however, the raw data from these devices can provide information that defense counsel can analyze to accurately determine plaintiffs’ actual fitness levels before and after an accident. Defense experts can also use this definitive information from plaintiff’s virtual assistants to construct a baseline from which they can assess a plaintiff’s physical changes, pre- and post-accident.

Using the discovery process to obtain data from plaintiffs’ Alexa or Cortana will most certainly be met with opposition from plaintiffs’ counsel, on the grounds of privacy and prejudice. That opposition will continue until the law begins to develop parameters regarding this type of discovery. However, since those who turn on virtual assistants presumably know, or should know, how they work, they should not be heard later to complain when the devices perform as advertised. One self-help solution is to unplug AI assistants when we do not want Siri or Alexa to overhear and record what is being said in their presence, something most people have not been doing.²² Keeping virtual assistants unplugged, unless or until needed, or taking the precaution of unplugging the virtual assistant when engaging in intended confidential conversations, may become common practice, if not also good common sense.²³

The situation becomes more problematic when it involves guests in someone’s home who do not realize they are being recorded.²⁴ Upon entering a person’s house or apartment, are we now expected to ask whether their virtual assistant is on, listening to and recording every word we say? Expectations of privacy therefore now change. As attorneys bring these issues before the courts, judges will weigh the right to a proper defense for defendants against the important right to privacy of plaintiffs. In doing so, courts will determine whether plaintiffs have true expectations of privacy regarding the data and recordings of their smart devices when they have put their physical conditions at issue in personal injury litigation. Simply put, why should the information collected by virtual assistants be treated any differently in discovery than the information contained in personal diaries or cell phone data? To state the proposition is to reject it.

Attorneys who understand the potentially valuable information these devices can provide to our clients should begin to question adversaries about them during discovery and be ready to defend their own witnesses for cross-examination when called upon to testify. When appropriate, counsel should also seek rulings on disclosure of this information if opposing counsel object to providing it. Significantly, Amazon Echo users can delete their voice recordings, which are stored in the History section of the Alex App. Some plaintiffs, with or without advice or counsel, may therefore log on to Amazon.com/myx, find their Echo, and delete old voice recordings.²⁵ Deletions can also be made on Google’s Assistant.²⁶ Knowing this, it will be prudent for defense counsel to serve opposing parties with a demand at the beginning of litigation for the preservation of evidence, requesting plaintiffs to retain that information in the Cloud and not to dispose of any recordings in the History section of the Alexa App, a fair quid pro quo for demands by plaintiffs for the preservation of any CCTV believed to have captured an accident, often served at or prior to the commencement of a lawsuit. To obtain that information, authorizations directed to Amazon, Apple, Google, Microsoft and Samsung should also be requested, in order to access important data from Alexa, Siri, Google’s Assistant, Cortana and Bixby, respectively.

Moreover, the evidentiary value of this newly available information extends well beyond casualty litigation, to any area of law where liability hinges on proof of what someone said or knows and when they said it or knew it, thereby encompassing all practice areas. For just one example, information from virtual assistants will be valuable to attorneys handling securities fraud and insider trading cases, as Alexa can be the “fly on the wall,” overhearing conversations regarding which stock to buy or sell and when. Attorneys litigating sexual harassment or Title VII immigration cases that look to the context surrounding what was said behind business decisions will be able to benefit heavily from this technology, which provides unvarnished insight into what was previously disputed “he said/she said” conversations. Trademark, copyright, and patent attorneys, piecing together the origination of ideas, may also find useful the data that virtual assistants can now make readily available.

Information from digital assistants is not limited to the United States and now has direct application to cases and litigants worldwide. Just this past October, Yandex, the largest search engine in Russia, often referred to as the Russian equivalent of Google, introduced Alice, its first conversational, intelligent assistant.²⁷ This new girl in town is touted to be the most capable Russian language assistant of its kind.²⁸ Accordingly, the search for information acquired by virtual assistants will soon be across borders, in any country where AI assistants are located.

As Kyle Rees cautioned Sarah Connor in the first “Terminator” movie, “Listen and understand. That terminator is out there. It can’t be bargained with. It can’t be reasoned with. It doesn’t feel pity, or remorse, or fear.” So, too, are digital personal assistants, who can and will record our every statement, which can later be used as evidence by lawyers who understand and make full use of this new technology.²⁹ The next generation of artificial intelligence platforms may provide attorneys access to even more information which previously was assumed to be private and non-discoverable.

Whether in the board room, the living room, the proverbial “smoke filled room” or the office, the defense of “plausible deniability,” used conveniently when confronted with previously hard to prove facts, will not be less successful in voiding disclosure of what actually took place. If, during conversations intended to be secret, Siri, Alexa, Google’s Assistant or Cortana are present in the room, unobtrusively sitting on a table, bookshelf or mantel, silently listening to and recording all that is being said, it will be far harder for the participants of that meeting to later deny what was said, when, and by whom.

Remembering Judge Cardozo’s remark that “law never is, but is always about to be,” and Chief Justice John Roberts’ comment this past July that “advancing technology poses one of the biggest challenges for the Supreme Court,”³⁰ forward thinking attorneys should not shy away from putting these issues before the court, as attorneys and judges (perhaps with the help of AI devices) together grapple with this new technology, directly applicable in today’s world, both real and virtual. We are now at the start of an era in which previously unavailable data can be accessed, become discoverable, and later be introduced into evidence. Attorneys who fail to recognize this will be left behind.

Reprinted with permission from New York State Bar Association Journal, November/December 2017, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

Endnotes

 1 Robert D. (“Bob”) Lang (RDLang@damato-lynch.com) is a senior partner at the firm of D’Amato & Lynch, LLP in New York City, where he manages the Casualty Department.

 2 Lenore E. Benessere (LBenessere@damato-lynch.com) is an associate of the firm. The authors would like to thank paralegal Megan Kessig for her help, and Alexa, Bixby, Siri, Google’s Assistant, and Cortana for their assistance.

 3 Benjamin Cardozo, Lecture, The Nature of the Judicial Process, Yale Law School (1921).

 4 Stacey Gray, Always On: Primary Implications of Microphone-Enabled Device, Future of Privacy Forum (April 4, 2017).

 5 George Anders, “Alexa, Understand Me,” M.I.T. Tech. Rev. (Aug. 9, 2017).

 6 Alexa tells us the president is James Monroe.

 7 Amazon, https://www.amazon.com/Amazon-Echo-Bluetooth-Speaker-with-Alexa-Black/dp/B00X4WHP5E/ ref=sr_1_1?s=amazon-devices&ie=UTF8&qid=1500487675&sr=1-1&keywords=echo.

 8 Amazon, Terms of Use, https://www.amazon.com/gp/help/customer/display.html/ref=hp_left_v4_sib?ie=UTF8%nodeId=201809740.

 9 Nick Wingfield, Amazon Wants to Wake You Up With Alexa, and That’s Just the Start, N.Y. Times (Sept. 29, 2017).

 10 Peter Nowak, Why It’s No Longer Strange to Talk to Your Home Appliances, The Globe and Mail (Oct. 2, 2017).

 11 Adrian Cutler, The Virtual Revolution of the Digital Assistant, IT ProPortal (Oct. 5, 2017).

 12 Artificial Intelligence, The Invincible Revolution Than Can Change Everything, Latin American Herald Tribune (Oct. 16, 2017).

 13 Martin Courtney, Alexa, Cortana, Siri, et al: Do Our Digital Assistants Hear More Than We Want Them To?, E&T Magazine (Oct. 13, 2017).

 14 Consider the computer HAL 9000 in 2001: A Space Odyssey; Skynet in The Terminator movies; the computer WOPR in WarGames; the NS-5 robots in I, Robot; Gatekeeper in The Net; ARIA in Eagle Eye; GLaDOS in Portal; the Terrans in the X game series; SHODAN in the System Shock series; SID 6.7 in Virtuosity; X.A.N.A. in Code Lyoko; AI Omega in Red vs. Blue; and the comely computer Ava (apparently no relation to Alexa) in Ex Machina.

 15 Eliott C. McLaughlin and Keith Allen, Alexa, Can You Help With This Murder Case?, CNN (Dec. 28, 2016); Agatha French, Alexa May Be Listening, but Will She Tell on You?, L.A. Times (Jan. 5, 2017).

 16 Hailey Sweetland Edwards, Alexa Takes the Stand: Listening Devices Raise Privacy Issues, Time (May 4, 2017); Jill Bleed, Alexa a Witness to Murder? Prosecutors Seek Amazon Echo Data, Yahoo.com (Dec. 27, 2016); Sarah Buhr, An Amazon Echo May Be the Key to Solving a Murder Case, TechCrunch (Dec. 27, 2016).

 17 Gerald Sauer, A Murder Case Tests Alexa’s Devotion to Your Privacy, Wired (Feb. 28, 2017).

 18 Shona Ghosh, Amazon Handed Over Alexa Recordings to Police in a Murder Case, Business Insider (Mar. 7, 2017); Chris Perez, Amazon Abandons Legal Fight Over “Alexa Data”, N.Y. Post (Mar. 7, 2017).

 19 Amazon, Alexa and Alexa Device FAQs, https://www.amazon.com/gp/help/customer/display.html?nodeId=201602230.

 20 Jefferson Graham, “Alexa, Call 911” Won’t Work. Here’s What Will, USA Today (July 19, 2017).

 21 Andy Greenberg, A Hacker Turned an Amazon Echo into a “Wiretap”, Wired (Aug. 1, 2017).

 22 Siri and Alexa Are Spying on Us, Gotham Girl (Aug. 26, 2017).

 23 In reaching to turn off virtual assistants, some may have flashbacks to any number of science-fiction books and movies, such as 2001: A Space Odyssey by Arthur C. Clarke and Stanley Kubrick, where the artificial intelligence device resists and actively defends itself when people seek to turn it off. Our advice: notwithstanding your fears, summon your courage and turn off your virtual assistants when you do not want them listening to and recording what you are saying.

 24 Alexa, How Much Is My Privacy Worth?, Salem News (Aug. 1, 2017).

 25 Jake Swearingen, Can an Amazon Echo Testify Against You?, N.Y. Mag. (Dec. 27, 2017).

 26 Kevin Murnane, How to Delete the Recordings of Your Interactions With Alexa and Google Home, Forbes (Oct. 2, 2017).

 27 Radu Tyrsina, Cortana Gets New Competition from Alice, Courtesy of Yandex, Window Report (Oct. 4, 2017).

 28 Brian Heather, Yandex Introduces Alice, An Alexa-Like Assistant, That Speaks Russian, TechCrunch (Oct. 11, 2017); Pradeep, Yandex Release Its Cortana Competitor in Russia, MSPowerUser (Oct. 11, 2017); David Reid, Russian Launches Its Own Version of Amazon Alexa With ‘Near-Human Levels’ of Speech Recognition, CNBC (Oct. 10, 2017).

 29 Kevah Waddell,  The Privacy Problem With Digital Assistants, The Atlantic (May 24, 2016).

 30 Nick Perry, In Overseas Remarks, Roberts Says Technology Poses Challenge for Courts, N.Y. L.J. (July 26, 2017).