Risk Management Revisited

slaw - Mon, 10/20/2014 - 06:00

In November of 2011, I wrote a column on the value of risk management for law firms and put forward the proposition that “[d]espite th[e] considerable grounding in working with risk and counseling clients on methods to minimize and avoid risk, seemingly very few law firms in Canada actually engage in any sort of structured or coordinated risk management activities for their own organizations.” I was recently contacted by a reporter for a legal industry publication to discuss risk management for law firms and thus had the opportunity to reflect on my original statement. When asked a question regarding the growth of risk management in recent years and the adoption of risk management programs by law firms I was reluctantly forced to report the fact that while risk management programs have increased in popularity and use amongst organizations in Canada in general, their adoption in the legal services sector has remained rare.

In an attempt to continue to spark interest in the legal sector in the field of risk management (and in recognition of recent shakeups such as the failure of a significant national law firm), I thought it was time to revisit the topic of risk management for law firms and set out some examples of practical steps that law firms can take in regards to risk. As a starting point for the discussion, it can be generally observed that organizations fall on a spectrum of awareness regarding risk management. At one end of the spectrum is a reactive organization that has no formalized risk management practices and is applying an ad hoc approach to dealing with unexpected events. In the middle of the spectrum is an organization that is aware of risk management and perhaps integrates some level of risk management practice into their everyday business decisions. At the far end of the spectrum is an organization that is addressing risk in a strategic manner through the adoption of a comprehensive risk management program that is addressed in their annual strategic planning process and is integrated into the everyday functioning of the firm.

While there are many different approaches to risk management, a common approach is to follow a step-by-step procedure that begins with establishing the context for the risk management program and ends with the application of what is known as risk treatment. The beginning of any risk management program should entail a consideration of various foundational considerations including establishing baseline definitions of risk for the organization and making clear the goals of the program. The next step in the process is a risk assessment that entails the identification and description of potential risks as well as their evaluation. This is perhaps the most important and time-consuming step. The final step in a basic risk management process includes the development of a plan for the treatment of the priority risks that have been identified. Common treatments include transferring the risk (for example through insurance), terminating the risk (by ceasing the risk generating activity), treating the risk (by engaging in risk reduction activity) or terminating the risk (by ceasing the risk generating activity altogether). While steps above are a considerable simplification of the risk management process, they nonetheless capture the common baseline approach to the subject.

In order to make the above discussion less abstract, it is useful to examine a few of the main categories of risk that may be applicable to an average law firm in Canada and that would be considered in the risk assessment step set out above. A sampling of four of these categories is as follows:

  • Economic – Economic risks are those that arise due to changing economic conditions. An example of an economic risk that had a significant effect on law firms throughout Canada was the crash in the global economy that occurred in 2009.
  • Regulatory – Regulatory risks are those that are associated with new or changing laws and regulations. An example of regulatory risk was the closing of the tax loophole regarding income trusts that occurred in 2006 that significantly altered many lawyers practices who focused in this area.
  • Environmental – Environmental risks are those that are faced due to uncommon, adverse or extreme environmental conditions. An example of an environmental risk that negatively impacted the operations of many law firms in Canada was the ice storm of 1998 in Quebec and Ontario.
  • Human Resources – Human Resources risks are those that arise from the management of human resource functions within an organization. The most pressing example of a human resource risk in the legal marketplace today is the failure of many law firms to adequately plan for succession.

As I stated in my original column in 2011 “..risk management has grown to become a multi faceted management discipline that is an important component of the strategic management activities of organizations both big and small.” Unfortunately, in my experience, while lawyers play the role of risk managers for their clients, the legal services industry itself has been slow to adopt formal risk management processes. While the brief comments above only scratch the surface of this complex discipline, it is my hope that they spur some readers on to research the issue further and consider the application of risk management activities to their law firms.

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Hwang: The Legal Innovation Defense Fund

Legal Informatics Blog - Mon, 10/20/2014 - 03:44

Tim Hwang of the Data and Society Institute invites participation in a new project: The Legal Innovation Defense (LID) Fund, described in a new post at Robot Robot and Hwang.

Here are excerpts from the post:

[...] Today, I want to propose an idea [...]: The Legal Innovation Defense (LID) Fund. The idea is simple: the LID Fund will create a collective insurance program that provides a defense system against the low probability, high impact possibility that a new technology in the legal space will be later discovered to have engaged in UPL [unauthorized practice of law].

There are three components to this project. First, the money: LID would be funded by two main types of actors. There would be a set of smaller startups, non-profits, and other organizations experimenting in legal technology that would pay a small monthly fee for membership in the coalition. We also envision a group of larger institutional supporters and investors with interests in shaping the overall landscape of law around UPL.

Second, the shield: upon facing an UPL action, coalition members would be permitted to trigger the assistance of the LID Fund. The program would deploy not only a preset insurance payment to support the litigation effort, but also would supply legal experts well versed in the law around UPL to guide the challenge. The upshot of this is that the LID Fund would provide insulation to its members from the risks around UPL, and assurance to their stakeholders. Simultaneously, it would support impact litigation in the legal technology space.

Third, the research: LID would be the center of a network of organizations working in legal technology and would be an organization involved in UPL challenges nationally. To that end, it would be able to provide ongoing research and policy work on the evolving state of technological innovation in the legal industry and the landscape of law surrounding the use of those technologies. [...]

So with that, this blog post officially puts out the call for willing hands to help launch this initiative: Would you support an initiative like LID? Would you take advantage of the kind of insurance that LID would offer to pursue a legal technology project or business? Do you know of an institutional supporter that would join this effort?

RR&H is seeking any and all assistance and advice as we make a push to turn this into a reality. We also intend to convene a meeting of interested parties in the near future – so get in touch by dropping a line to tim@robotandhwang.com. Keep your eyes on this space! [...]

For more details or to contact Tim, please see the complete post.

HT @RobotandHwang

Filed under: Calls for participation, Legal defense funds, Policy debates, Projects Tagged: Innovation in legal technology, Legal defense funds, Legal innovation defense fund, Legal technology innovation, LID fund, Robot Robot and Hwang, Robot Robot and Hwang Blog, Tim Hwang, Unauthorized practice of law, Unauthorized practice of law and innovation in legal technology, Unauthorized practice of law and legal technology innovation
Categories: Teknoids Blogs

No Agreement on Legal Aid Funding

slaw - Sun, 10/19/2014 - 16:18

Justice ministers from across Canada met in Alberta this week to discuss funding for legal aid, but no agreement was reached.

According to provincial justice ministers, legal aid used to be shared equally with the federal government. However, since 2003 there has been no new funding from the federal government, meaning any shortfall is left to the province. What that means is that in some provinces like Alberta, federal contributions to legal aid have dropped to 16 per cent.

Andrew Swan, Manitoba Justice Minister, said,

I don’t understand how a government in Ottawa that claims to be in support of law and order would take away something that’s been very, very valuable.

The importance of legal aid in promoting access to justice was recently highlighted by Ed Montigny of the ARCH Disability Law Centre,

At its most basic, access to justice means an appropriate level of assistance with legal issues for people when they need help to protect basic rights or needs.

These basic rights include housing, access to social supports and assistance, education, employment, medical care, child custody, spousal or child support, defending one’s autonomy or obtaining protection from abuse.

When issues of crucial importance to a person’s basic well-being are at stake, assistance should be available regardless of a person’s ability to pay or understand the relevant legal processes. Denial or obstruction of such assistance can take many forms—such as financial, social, or systemic barriers.

Some suggest that increasing legal aid would increase unnecessary litigation in society. This does not necessarily have to be the case, as Montigny explains,

In a perfect world, everyone’s legal rights would be understood and protected by all. And if a person’s rights were threatened and they required assistance to protect their rights, they would have access to competent legal advice and support regardless of their ability to pay.

A legal professional providing assistance would have the resources to devote as much time as they need to ensure an issue was dealt with, and to feel confident in providing high-quality services to their clients. Such services would include accommodation of needs related to disabilities, and an understanding of the social and economic position of clients.

Ideally, litigation would be required in only rare instances. When problems arose there would be a variety of options available to resolve conflicts and to protect rights. Mediation and alternative dispute resolution would be available as well as counselling and other options that do not require litigation.

Fundamentally, all decision-making processes would ensure that people feel they are heard and respected and that serious consideration given to their claim.


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My Twitter Digest for 10/18/2014

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Summaries Sunday: SOQUIJ

slaw - Sun, 10/19/2014 - 06:00

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PÉNAL (DROIT) : Les erreurs de la juge de première instance se rapportent directement à l’évaluation des conditions d’ouverture de la légitime défense et ont privé l’accusé de ce moyen de défense; il y a lieu d’ordonner la tenue d’un nouveau procès.

Intitulé : Dyckow c. R., 2014 QCCA 1812
Juridiction : Cour d’appel (C.A.), Montréal, 500-10-005169-121
Décision de : Juges Jacques Dufresne, Manon Savard et Martin Vauclair
Date : 3 octobre 2014

PÉNAL (DROIT) — infraction — infractions contre la personne — voies de fait — voies de fait simples — voies de fait armées — chaise — victime ex-conjointe — moyen de défense — légitime défense — provocation — intrus — appréciation de la preuve — versions contradictoires — crédibilité des témoins — tenue d’un nouveau procès.

Appel d’une déclaration de culpabilité. Accueilli; la tenue d’un nouveau procès est ordonnée.

L’appelant a été reconnu coupable de voies de fait simples (art. 266 a) du Code criminel (C.Cr.)) et armées avec une chaise (art. 267 a) C.Cr.) commises à l’endroit de son ex-conjointe. Il a admis avoir physiquement maîtrisé la plaignante pour la calmer et prévenir les coups. La crédibilité des témoins était au coeur du procès. L’appelant et la plaignante étaient de proches voisins. Ils ont un fils de trois ans. Alors qu’il s’était rendu chez elle pour effectuer une réparation, il a découvert un fusil en plastique et, comme il désapprouve ce type de jouet, il en a fait part à la plaignante, qui a répliqué. Une bagarre a suivi, au cours de laquelle ils se sont retrouvés au sol. À un certain moment, l’appelant aurait pris une chaise pour se protéger de coups de pied, puis il aurait posé celle-ci au-dessus des jambes de la plaignante. La suite des événements n’est pas contestée: l’appelant a téléphoné au service d’urgence 9-1-1 pour la plaignante puis a quitté la résidence de celle-ci.

La juge de première instance a commis deux erreurs dans l’appréciation de la preuve. D’une part, elle a conclu que l’appelant était un intrus au sens de l’article 41 C.Cr. Ainsi, cela fondait tout exercice de force raisonnable de la part de la plaignante et condamnait l’utilisation de celle-ci par l’appelant, qui ne pouvait soutenir avoir agi en légitime défense. Or, la plaignante n’a jamais demandé à l’appelant de quitter les lieux avant la fin de la querelle. Ayant été initialement invité par elle, l’appelant ne pouvait devenir un intrus avant d’être sommé de partir. D’autre part, la juge a erronément conclu à la provocation de la plaignante par l’appelant, qui, dès lors, ne pouvait plus encore une fois invoquer la légitime défense. La preuve ne supporte pas cette conclusion. Par ailleurs, c’est à tort que la poursuite soutient que ces erreurs sont sans conséquence et que la disposition réparatrice prévue à l’article 686 (1) b) (iii) C.Cr. trouve application. Les erreurs de la juge se rapportent directement à l’évaluation des conditions d’ouverture de la légitime défense. Par ailleurs, concluant que l’appelant était un intrus et qu’il avait provoqué la bagarre, la juge a abordé l’évaluation de sa crédibilité avec une prémisse erronée et préjudiciable. Il s’agit d’une erreur qui a contaminé son raisonnement. Enfin, la décision présente certaines difficultés dans l’appréciation du témoignage de la plaignante. D’autre part, à la lumière de l’ensemble de la preuve, on ne peut exclure qu’un juge puisse en arriver à prononcer un jugement de culpabilité. Par conséquent, un nouveau procès doit être ordonné.

Le texte intégral de la décision est disponible ici

Categories: Teknoids Blogs

Summaries Sunday: Maritime Law Book

slaw - Sun, 10/19/2014 - 06:00

Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week’s summaries concern:
Constitutional Law/ Courts / Practice/ Aliens / Civil Rights / Criminal Law

Vilardell v. Dunham 2014 SCC 59
Constitutional Law – Courts – Practice
Summary: During the trial of a family action, the plaintiff asked to be relieved from paying the hearing fees imposed by the Crown. The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 434, determined the family law issues. With respect to the plaintiff’s request to be relieved from paying the fees, the court identified a potential jurisdictional problem and invited submissions from the British Columbia Attorney General, the Law Society of …

Iyamuremye et al. v. Canada (Minister of Citizenship and Immigration) 2014 FC 494
Summary: The applicants applied to be recognized as refugees or persons in need of protection (Immigration and Refugee Protection Act, ss. 96 and 97). The Refugee Protection Division of the Immigration and Refugee Board dismissed the application. The applicants appealed. The Refugee Appeal Division (RAD) dismissed the appeal. The applicants applied for judicial review of the RAD decision arguing, inter alia, that the RAD made a jurisdictional error. The Federal Court allowed the application and referred the matter for …

R. v. Conception (B.) 2014 SCC 60
Civil Rights – Criminal Law – Statutes
Summary: An accused was found unfit to stand trial. The presiding judge made a treatment order under s. 672.58 of the Criminal Code, requiring the accused to submit to anti-psychotic drug therapy. On being informed that no mental health treatment facility beds were immediately available, the judge stipulated in the order that the accused was to “be taken directly from Court to the designated hospital . … Accused is not to be taken …

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Salamanca and van Eechoud: Open Legal Data for Europe: Report on LAPSI-openlaws workshop

Legal Informatics Blog - Sun, 10/19/2014 - 04:02

Olivia Salamanca and Mireille van Eechoud have posted Open Legal Data for Europe, a report on a workshop organized by openlaws.eu and LAPSI, at the University of Amsterdam, 4 September 2014.

Here is a description of the report, from a post at the openlaws site:

Open Legal Data for Europe: The EC funded openlaws.eu project and the LAPSI thematic network project joined forces for a workshop on open legal data for Europe, hosted by the Institute for Information Law of the University of Amsterdam on Sep 4 2014. About 25 participants from academia, government, business and civil society discussed what the drivers are for opening up legal data for re-use in different jurisdictions and what barriers (perceived or real) exist. The outcome of the discussion will feed into the on-going work in the LAPSI network on legal barriers to re-use, and in the vision for Big Open Legal Data that will be developed as part of Openlaws.eu. [...]

HT @openlaws

Filed under: Applications, Policy debates, Projects, Technology developments Tagged: Big Open Legal Data, Chris Marsden, Free access to law, LAPSI, Law as data, Legal open data, Legislation as data, Mireille M. M. van Eechoud, Mireille van Eechoud, Olivia Salamanca, Open legal data, OpenLaws, OpenLaws.eu, Public access to legal information
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My Twitter Digest for 10/17/2014

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How Universities Turn Slogans Into Cash

The Chronicle Wired Campus - Fri, 10/17/2014 - 16:55

If you want to sell a T-shirt that says “Bring the Juice”—and who among us hasn’t?—you’ll have to clear it with Robert P. Cleveland.

Mr. Cleveland is director of trademark and licensing at Ohio State University, which has owned the trademark on “Bring the Juice” since 2012, along with several dozen other words and phrases.

The Chronicle just published a poem composed entirely of college-owned trademarks. I wrote it after combing through the federal trademark database to see if I could make a list of the weirdest ones. But there were too many, and a list wouldn’t have done them justice.

Of course, trademarks are big business for some colleges. Mr. Cleveland’s office pulled in $13.6-million through trademark licenses in the most recent fiscal year alone. The biggest portion of that money went to the athletics program, but the licensing office also disbursed $2.8-million to academic programs and more than $1-million to student affairs.

Owning a trademark doesn’t mean owning a monopoly on a word or phrase. When a college applies for a trademark, it has to specify what goods and services it sells (or plans to) with that mark, explains Steven McDonald, general counsel at the Rhode Island School of Design. The college must then continue selling those things in order for its mark to remain valid, he says.

In the case of T-shirts and other apparel, Ohio State has a “master apparel agreement” with J.America, a clothing company. So anyone seeking permission to sell “Bring the Juice” shirts would be out of luck.

But for other merchandise, you can fill out forms to apply for a license to trade on the university’s marks. In an email, Mr. Cleveland describes what happens next:

On the second Tuesday of each month we gather with our review board to review the application and samples. The board comprises a number of local retail buyers and two of our office staff. The buyers score the applicant on a scale of one to 10 and give us a feel for needs and opportunities in the marketplace. Three of our office staff gather shortly thereafter to do a final scoring assessment based on opportunity, quality/risk, experience, references, and finally the scores from the buyers.

And that’s how Buckeye Tartan™ cologne happens.

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My Twitter Digest for 10/16/2014

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Virtual Insanity

slaw - Fri, 10/17/2014 - 11:58

Something from the recent Throne Speech here in Nova Scotia struck me as quite odd. Specifically, a local news story quoted that the Premier “promised in the throne speech to ban the use of e-cigarettes in public places.”

Nova Scotia would not be the first jurisdiction to take this step and it would join a long list of jurisdictions which have enacted such legislation or by-laws. I am not an advocate of e-cigarettes nor did I understand much about them prior to doing some research for this post, but my understanding of some of the logic behind this intended ban on e-cigarettes in public places is that they promote the use of real cigarettes…….. which are perfectly legal to use in outdoor public places!

So we have product X which is a perfectly legal product to use in public places despite the negative health effects associated with it. And here we have product Y which is new to the market with much conjecture as to whether it helps people stop using product X or if it might promote the use of product X. So what several jurisdictions have decided to do is ban the use of product Y because it might promote the use of the perfectly legal product X.

I have been trying to come up with a proper idiom for this type of thinking. “Closing the barn door after the horse gets out” is not quite right, nor is “putting the cart before the horse” (evidently a horse must be involved). Isn’t there a German word that describes this kind of thinking? If product Y is so bad because it promotes the use of product X then logically should product X not just be removed from the market? Lacking the intestinal fortitude to take that step with product X it just strikes me as quite odd that the supposed reasoned approach is to ban the use of product Y in public places. Perhaps it makes some sense in an overall reduction of harm frame of thinking but not from a logical way of approaching product X and Y.

Categories: Teknoids Blogs

It’s Time for Lawyers to Re-Think the Cloud

The Lawyerist - Fri, 10/17/2014 - 09:11

We are living in 1984. The novel, that is, not the year. Big Brother is watching you — and reading your emails, browsing your contact lists, keeping tabs on your call history, and tracking your movements. If you represent non-US clients, Big Brother may even be reading your confidential attorney-client communications, according to the New York Times.

This probably does not raise any serious ethical concerns for most lawyers. That is, I don’t think you will lose your law license because you use email. But it should make you pretty uncomfortable.

And while there is probably no reason to panic, it also means you should probably change the way you use the cloud.

I no longer think it is wise to use the cloud as the default place to store your information. Maybe that was always a bad idea, but it definitely looks like a bad idea now.

A year or so ago, I thought it made sense to use the cloud as a default. I put nearly all my information in the cloud, unless there was a good reason not to. After last June, the documents released by Edward Snowden started hitting the media. We now know that the NSA is not only vacuuming up information from the public Internet, but infiltrating major companies, undermining fundamental security software, and even intercepting computers in the mail to install spyware. It is also unclear which companies are cooperating, although some seem like they might even be on the NSA’s payroll.

Apart from governments — our own and others — the last few years have seen a resurgence in malicious hacking by non-government actors. It seems like every week we get a new warning to change our passwords because a popular cloud service has been compromised.

I no longer think it is wise to use the cloud as the default place to store your information. Maybe that was always a bad idea, but it definitely looks like a bad idea now. I think we have to assume that the government has (or can easily get) access to anything you send through the air or over a wire, especially (but not only) if it is unencrypted. So can many others. So if you weren’t already thinking carefully about what you put in the cloud, you must do so from now on. Put stuff in the cloud only when it needs to be in the cloud.

Be Smart About the Cloud

There is no reason to fear the cloud. Instead, be smart about the cloud. If you choose your services carefully, using the cloud is at least as secure as not using it, and it can be more secure. In fact, for most people the cloud is far more secure than hosting a private server.

“[E]veryone needs to recalibrate their baseline expectation of confidentiality ….”

I reached out to several cloud software vendors to find out what they are doing in the wake of the Snowden revelations. None of them are using RSA, and all of them say they are using best practices when it comes to security. Clio‘s Jack Newton probably described the general feeling best when he quoted Microsoft’s general counsel, Brad Smith, who characterized the NSA as an “advanced persistent threat.” MyCase‘s Matt Spiegel said that “these are concerns we have always known existed,” and that Snowden’s revelations were merely confirming what most security experts already believed. Rocket Matter‘s Larry Port agreed, saying “the NSA revelations were a gift, in that now everyone else is as paranoid as I am.”

Newton admitted, though, that “everyone needs to recalibrate their baseline expectation of confidentiality … every medium is less secure … whether it’s a cell phone, personal computer, private server or a cloud-based application.”

Related“5 Things I Wish You Would Learn About Computers”

On the basic question of whether the cloud is more secure than managing your own IT infrastructure, Spiegel (unsurprisingly) called the cloud “infinitely more secure, for many reasons, than data simply being kept on your local computer or server.” He has a vested interest in saying so, but I tend to agree with him. Few enough lawyers are proficient with Microsoft Word, much less setting up solid automatic backup or a secure file server, and there aren’t many lawyers willing to pay a security professional to keep their network secure at all times.

Still, lawyers have a duty to use appropriate security, and to me, that means using the cloud only when necessary.

Re-Think Your Use of the Cloud

If you only had one computer and no smartphone or tablet, you could probably get by just fine without the cloud. But most of us now have at least two devices, and we really want to be able to sync up our email, calendars, tasks, and access documents wherever we are and whatever we are using.

Related“How to Share Files with Clients”

Currently, the only way to do that is the cloud. (The “personal cloud” concept is just beginning to take shape, but it is not yet a realistic option for most users.)


Email was cloud-based before the cloud was even a thing. And storing your messages in one place just makes sense, whether that is Gmail or your own server. But email, by its nature, not very secure. Most email is transferred unencrypted and in the clear. Think postcards, not sealed envelopes. It is so easy to intercept email in transit that anyone who wants a copy will probably get one.

Because of the relative insecurity of email, you have two choices: watch what you say over email, or encrypt it.

In general, watch what you put in email and talk to your clients about email security. If you would not want the NSA to read your message, do not put it in an email. In fact, an experienced lawyer once told me not to put anything in a letter that I would not want to see on the front page of the newspaper. That sounds like a good guideline for email, too.

There are two alternatives for securing your digital communications: secure portals and encryption.

A secure portal is a website you can only connect to via HTTPS that holds any messages (and often, files) you want to give someone else access to. For example, you would log in, type a message to your client, and hit send. Your client would get an email letting them know they have a message, which they would have to log in to get. A secure portal is cumbersome, but it is an effective extra layer of security. (It is also a good idea if you are representing employees and worry about them reading emails from you at work.)

Some secure portals include Clio and MyCase, which send notifications by email, but do not include the substance of the message.

Another, higher-security option is encrypting your emails. This works, but it is even more cumbersome than a secure portal, and you will have to train your clients to do it properly. Still, if you want to secure your communications, email encryption works.

Calendars and Tasks

Calendars and tasks are much more useful when stored in the cloud so you can sync them between devices and share calendars with co-workers and family members. But meeting requests generally go out over email, and not all online calendars are secured by HTTPS by default (Google Calendar is a notable exception).

To ensure calendar and task security, look for cloud services that use HTTPS by default, and avoid sending meeting requests if doing so would reveal confidential information.


Documents are especially handy when kept in the cloud. The ability to pull up your client files from anywhere using your smartphone is pretty great. But you definitely don’t need anytime, anywhere access to all your files. There is probably no reason to store your closed files in the cloud, for example.

Cloud file sync and storage also includes a variety of security levels. Dropbox, probably the most-popular option, transfers your files over a secure connection, but does not encrypt your files until they reach Dropbox’s servers. And Dropbox is able to decrypt your files. Plus, Dropbox may be cooperating with the NSA.

Still, Dropbox is widely supported by mobile apps, making it the best choice for files you really do need to be able to get to anytime, anywhere. Which is why I still use Dropbox for some things, like draft blog posts and eBooks, camera uploads, and board meeting documents for the non-profits I work with. But I don’t put my client files in Dropbox anymore.

You could use something like Boxcryptor or Viivo to add an extra layer of encryption to Dropbox. I found Boxcryptor to be clunky, but Viivo works great and makes it easy to open your files in other mobile apps (although they will not be encrypted in those apps, obviously).

SpiderOak is often touted as a more-secure alternative to Dropbox. It is, as far as I can tell, but the security comes with some downsides. Like Boxcryptor and Viivo, almost no mobile apps support SpiderOak, which limits your options for getting your files onto your phone or tablet.

You can either have security or convenience, in other words. Not both. At least not yet. Recent updates to iOS are making it easier for apps to interact, which makes it less important which cloud file storage service you decide to use.

Another option is to skip the cloud entirely and use BitTorrent Sync. As we have discussed in the Lab, BTSync is relatively new, and has yet to either open-source its code or submit to a security audit. That said, BTSync is file sync without the cloud. It syncs up files between your computers and devices, but they are never stored on anyone else’s servers. Files are transferred (really quickly) over a secure connection, which means it is just as secure as Dropbox file transfers, but you don’t have to entrust your files to a third party. And while app support is weak, there is a nice BTSync app, which lets you view your files and send them to other apps. BitTorrent Sync is also growing really fast, which means third-party support should follow. Plus, it is free.

For backup, I continue to recomment a combination of local backup and CrashPlan, which is about as secure as the cloud gets.

When Not to Use the Cloud

The bottom line is my new philosophy when it comes to the cloud: only use the cloud when you need to. And if you do use the cloud, make sure you choose the right level of security for the data you put there. If you don’t need to use the cloud, keep the information local and encrypted.

That said, I continue to think lawyers should use the cloud. The new comment to Rule 1.1 cuts both ways:

[A] lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology ….

If you don’t use appropriate technology, you are doing your clients and your ethical obligations just as much a disservice as if you use inappropriate technology. Sometimes, the cloud is the right tool for the job, and sometimes it isn’t. You cannot ignore it, but you cannot dismiss it as an option out of hand, either.

  • 2014-03-10. Originally published.
  • 2014-10-17. Revised and republished.

Featured image: “Businessman hand working with a Cloud Computing diagram” from Shutterstock.

Categories: Teknoids Blogs

The Friday Fillip: How Time Flies

slaw - Fri, 10/17/2014 - 06:00

Too fast, too slow, too big, too small, too quiet — most of what there is lies beyond our senses, which is intriguing, if also more than a little humbling. So ever since Galileo spotted the moons of Jupiter and van Leeuwenhoek watched his animalcules wriggle around, the rest of us have been fascinated by this invisible world made present for us by clever scientists and engineers.

Photography has played a huge role in gratifying our appetite for the imperceptible. There’s the obvious but now taken-for-granted ability to see aspects of the otherwise lost, invisible past, of course. And shots of galaxies, nebulas, and dust clouds take on startling hues thanks to frequency shifting. At the moment, time-lapse photography is enjoying a burst of popularity, as the patient collection of moments over time allows us to speed the clock and witness changes that would otherwise escape our attention. When you combine this ability actually to see change happen with the fact of human life, you get something that can be doubly fascinating — and a little uncanny (which, after all, goes back to “can” and “ken”, knowing and seeing).

The most dramatic example of this is perhaps the two minute movie made by Karl Baden in which the frames were still photographs of his face taken daily over the course of 8432 days, or 23 years one month and three days (thank you WolframAlpha) — from February 23, 1987 until March 26, 2010. Baden adjusted things so that by and large each still is registered so that his eyes in the centre of the shot remain in position within the successive shots. (I confess that the OCD side of me conceived of this idea many years ago; but I brag that the larger lazy side of me never took any steps to do anything about it.) I find it interesting to see how the effects of aging don’t appear strongly until towards the end. You might notice things differently. At any rate, here is Karl Baden over time.

This is clinical, which might take some of the wonder away. For a much more artistic but much less compressed example of lives lived, have a look at forty years worth of annual portraits of the four Brown sisters, featured recently in the New York Times. Here you’re not hustled through a life but have time to dwell at stations along the way and to appreciate the nobility and beauty of the subjects (nos semblables — nos soeurs).

This is merely an excerpt from the full portrait.

Categories: Teknoids Blogs

Your Fall Website Tune-Up

slaw - Fri, 10/17/2014 - 06:00

As I write, the first winter storms have descended upon Calgary, while out here on the left coast both Mother Nature and the provincial government still refuse to acknowledge the stubborn truth that fall is here and it’s high time for skies to turn soggy and kids – especially my kids – to be back in school. But facts are facts, and the traditional busy season is now upon us. That means it’s also time for your marketing vehicle’s fall tune-up.

I know, I know; you’ve been dreaming of ditching your existing model for one of those new-fangled TESLAs that are both 100% electric (fully-responsive web design that automatically adjusts for desktop, tablet or mobile) as well as being visually beautiful examples of understated elegance. But your parsimonious partner is having none of it, and insists there’s no money in the family budget for such luxuries this year. ‘Twas ever thus.

That being the case, I’ve outlined below some steps you can take to ensure your machine is at least in proper working order for the long winter ahead, along with some tweaks you might consider to improve its performance. Some of these you can take care of yourself, while others might require your preferred grease-monkey (web-developer)’s assistance. Without further ado:

1. Take an Odometer Reading (Consider Site Age/Functionality)

If you’ve got a vehicle that’s only a year old, this is just a cursory check. But if your ride is already long in the tooth or prone to breakdowns, you know you need a long hard think every time an issue arises about whether you should really sink more money into it. After all, you are not wrong that electric (responsive design) is the way things are going, and these machines do have a finite lifespan. Think about the workload you need your vehicle to handle over the next 12-36 months and make an honest assessment of whether your current model is up to the task or can be made functional with a few aftermarket accessories. If the answer is no, further negotiations with your partner on a replacement might be in order.

2. Conduct Engine Diagnostics and Check Wear on Tires & Brakes (Run a Google Analytics Report)

How has your vehicle actually been used over the last few years? The diagnostics report will tell you. Certain parts of your vehicle might be doing all the work, while others are left virtually untouched. Is your engine (home page, lawyer bios) firing on all cylinders? If your tires or brake pads (practice pages, news items) are being worn thin, consider beefing them up.

3. Change Oil and Top Up Fluids (Software Updates / Plugins)

Despite what your partner might believe, you know these things don’t run forever without regular maintenance. Check your oil (WordPress or other CMS software updates) and top up your fluids (plugin updates). Ignoring these basic tasks is one of the primary causes of vehicle breakdown, and left long enough can even result in blowing your engine completely (hacked website).

4. Perform Wheel Alignment (Optimize a User Scenario / Website Path)

Do your steering inputs work correctly – in other words does your vehicle actually go where you point it (do the visitors you want enter your site at a proper starting point and take a logical sequence of steps to your desired end results)?

Example: Client visits lawyer bio, and then clicks through from sidebar link to upcoming webinar by that lawyer, proceeds to online webinar registration form and submits registration.

5. Test the On-Star System (Contact Page + Newsletter Signups)

Does your contact system work smoothly and efficiently? (Are a Google Map and parking instructions included? Are your key contacts including non-lawyer admin staff readily accessible from this page?) Is your system up to Code? (Canada’s Anti-Spam Legislation – CASL). Some of the major third-party suppliers (MailChimp, Constant Contact et al.) have pre-built some of the major CASL-compliance steps into their systems so that new email signups are covered from the get-go.

6. Put On Winter Tires (Create a Seasonal Campaign Landing Page)

Conditions change throughout the year. Adjust your vehicle to adapt to the outside environment. (Create a new landing page to support a current initiative or marketing campaign).

7. Clean and Detail Vehicle (Remove Outdated Content, Dead Links)

Little things still count. Remove the unwanted debris of past journeys and keep your vehicle’s appearance in order (delete bios of departed employees, defunct practices, and check external links).

8. Plan Some Road-Trips and Preload Destinations into your GPS. (Set Up Conversion Goals)

Don’t just drive your machine aimlessly around town. It’s equipped – or should be – with a powerful trip computer (Google Analytics again) where you can load up desirable destinations in advance (Conversion points – e.g. newsletter signups, consultation request forms, event registrations, click-to-call buttons on mobile sites). The trip computer will then keep a record every time one of your preferred destinations is reached so that you can monitor your progress over time.

9. Fuel up (Create Fresh Content)

You won’t get very far if you never put any fuel in the tank. Gas up. For best results, use premium unleaded (client-focused plain English writing, original work from your lawyers, high-quality video & photography, blogs).

10. Go!

Categories: Teknoids Blogs

Attorney Brings Newborn to Court Because Judge Says Maternity Leave is “No Good Cause” to Postpone Hearing

The Lawyerist - Thu, 10/16/2014 - 22:54

From the Associated Press Staci Zaretsky at Above the Law:1

An immigration judge in Atlanta denied an attorney’s request to delay a hearing that fell during her six-week maternity leave and then scolded her in front of a packed courtroom when she showed up with her 4-week-old strapped to her chest and the infant began to cry, the attorney said.

Well played, mom.

  1. Staci actually broke this story, and the AP apparently reported it without giving her credit. Lame. 

Categories: Teknoids Blogs

The Next Target

3 Geeks and a Law Blog - Thu, 10/16/2014 - 17:00
Previously I posted on some knowledge gained at the Bridgeway Conference in Nashville. I wanted to add one more item to the list.

Jeff Paquin, who now works with Bridgeway, gave a presentation called Legal Department 2050. He started by looking back at the evolution of legal departments and then projected forward on what the future might hold for them. In looking back he noted that since the mid 80's, legal departments have grown substantially. Back then about 5% of the legal budget went to pay the in-house team. A recent report shows this number is now approaching 50%. Quite a bit of this growth has occurred recently with legal departments pulling more work away from outside counsel.

Numerous reports and posts have shown that in-house legal departments have become one of the biggest competitors for outside counsel. This is not news to law firms since they are hiring these people directly from those firms. Later at the conference I had one client comment to me on the challenges they are having maintaining relationships with law firms, since they keep hiring their primary relationship lawyers away from the firms.

Jeff then took this concept and projected it forward. He runs a group called the Legal Futurists Society. Based on the collective thinking for this group, they see this growth peaking in the next 10 years.

Jeff posed a question to the audience. He asked what we saw resulting from this trend. A hand shot up quickly followed by, "Scrutiny." Everyone agreed that as legal departments' personnel came to represent greater portions of the budget, cost concerns would shift from law firms to the legal departments.

Here are my follow-on thoughts:

#1 - My reaction beyond 'scrutiny' was that legal departments are just becoming law firms. This means they will now be burdened with all the same problems a firm has in terms of infrastructure. What do they have for document management? What about KM and all of the other tools firms have in place? This will be a significant challenge for them, since law firms are still trying to figure all of this out and they are years ahead of legal departments.

Which leads to my second thought ...

#2 - In-sourcing doesn't appear to be changing the model much. Legal departments don't seem to be 'doing law' much differently. They are just doing it with lower cost resources. So the cost savings realized will only be marginal. And it won't take long for corporate leadership to realize that limitation - and to notice the size of the department has grown considerably.

So I think Jeff and the group are right. A lot more scrutiny will come to bear on legal departments. As they grow in size and cost, the cost saving target will shift from law firms' to their backs.

What's good for the goose ...?

Categories: Teknoids Blogs

In Celebration of Government Information Day, Meet a Few GovDoc Librarians

slaw - Thu, 10/16/2014 - 15:56

Today, the University of Ottawa is organizing Government Information Day to examine the many challenges of organizing, digitizing and preserving often finicky government documents.

We all use them every day: rules and regulations, Hansards, parliamentary committee reports, government agency documents, court records, official stats, public sector scientific and technical reports, etc.

Anyone who has ever had to track down an old order-in-council or find a controversial pollution report by government scientists will appreciate how hard it can be.

For the past little while, the CLA Government Library and Information Management Professionals Network, part of the Canadian Library Association (CLA), has been publishing 13 Questions With…, a series on its website that profiles a member of the Canadian library and IM community every week.

In celebration of Government Information Day, the Network has presented three profiles this week of people from the field of government documents librarianship:


Categories: Teknoids Blogs

Nice Try, but Claiming Copyright Won’t Save You from Discipline

The Lawyerist - Thu, 10/16/2014 - 15:31

Illinois lawyer Joanne Denison created a blog about courtroom corruption that landed her in hot water with the Illinois Attorney Registration and Disciplinary Commission (IARDC) for “alleging professional misconduct in making false statements on her Blog.” In a creative and novel response, Denison tried suing the IARDC for including content from her blog in its complaint.

It didn’t work.

(h/t The Volokh Conspiracy via TechDirt)

Categories: Teknoids Blogs