The Trust Account Report You Probably Aren’t Doing (that You Absolutely Need To)

The Lawyerist - Thu, 01/28/2016 - 07:12

One of the most difficult yet critical tasks that lawyers have to deal with is reconciling all of our various ledgers. Unlike other businesses, we can’t just compare our bank balance to our check register and track down checks and deposits that have not yet cleared.

Lawyers must also keep individual client ledgers for trust accounts. Many states require lawyers to reconcile each of those client ledgers and with their bank balance and (of course completely balanced) check register. This is called three-way reconciliation.

How to Do a Three-Way Reconciliation

In most cases, lawyers do three-way reconciliations with a clunky combination of manual tools. Massachusetts, which requires three-way reconciliation, has a manual form you can use. There are three components:

  1. Reconcile your bank statement with your general ledger, subtracting checks and adding deposits that haven’t cleared as of the date of your statement, and put that number on the three-way reconciliation worksheet
  2. Add up all your client ledgers up through the date of your bank statement and put that number on the three-way reconciliation worksheet.
  3. Put your general ledger balance on the three-way reconciliation worksheet. When you’re done with that, all three numbers should match.

The problem with this manual approach, of course, is that it is cumbersome and there is a pretty high chance of error.

A better, more reliable option is to use software that has three-way reconciliation baked in. This makes it much more simple to do your monthly three-way reconciliation, especially if you have a lot of client ledgers. It takes the place of all of that manual report-shuffling and eliminates the possibility of manual error creeping in.

Here is how to do a three-way reconciliation with CosmoLex, which is practice-management software built for lawyers that includes a full accounting solution with three-way reconciliation.

Like most practice management software, CosmoLex will let you generate a list of all your open matters, complete with trust account details. These are your client ledgers.

And you are, hopefully, familiar with what your book-balance report typically looks like in whatever software you are currently using. In Cosmolex, it looks like this.

Without a three-way reconciliation report, you would need to manually move those reports around, keep your bank statement handy, and hope for the best. In Cosmolex, you just select your trust account, pick the date of the bank statement you’d like to balance your account against, choose a sort method, and then generate the three-way reconciliation report in one click. You will end up with a report that looks like this:

Three-Way Reconciliation Report

No manual worksheet, far greater level of detail, and far less chance of error.

Which States Require Three-Way Reconciliation? StateReconciliation Required?Language from or Reference to Rule Requiring Reconciliation AlabamaYesRule 1.15(e)9 of the Alabama Rules of Professional Conduct requires monthly trial balances and quarterly reconciliations of trust accounts to be kept on file for six years after termination of representation. ArizonaYesArizona Supreme Court Rule 43(b)(2)(C) requires “a monthly three-way reconciliation of the client ledgers, trust account general ledger or register, and the trust account bank statement.” IllinoisYesRule 1.15(a)7 of the Illinois Rules of Professional Conduct requires reconciliation reports on at least a quarterly basis. IowaYesIowa Court Rule 45.2(3) address 3-way reconciliation requirements. MassachusettsYesMassachusetts Rule of Professional Conduct 1.15(f) requires three-way reconciliation MissouriYesMissouri Supreme Court Rule 4-1.15(a)(7) address 3-way reconciliation requirements. New JerseyYesRule 1:21-6(H), called the New Jersey Recordkeeping Rule, requires three-way reconciliation. South CarolinaYesRule 417, SCACR (Financial Recordkeeping) requires monthly reconciliations, and records should be kept for six years after termination of the relationship with the client. AlaskaNoN/A ArkansasNoN/A CaliforniaYesThe Board of Governors of the California State Bar have promulgated standards pursuant to Rule 4-100 of the Rules of Professional Conduct that require that attorneys reconcile the written ledger for each client, the bank journal, and all bank statements.
ColoradoNoN/A ConnecticutYesConnecticut's Statewide Grievance Committee randomly selects attorney accounts for inspection and audit and, during the audit, will perform a three-way reconciliation. Connecticut explains how to do a three-way reconciliation here. DelawareNoN/A FloridaYesRule 5-1.2(d) of the Rules Regulating the Florida Bar requires monthly reconciliation between bank balances, general ledgers, and individual trust ledgers. GeorgiaNoN/A HawaiiYesRule 4(c)(8) of the Rules Governing Trust Accounting requires "copies of all monthly trust account reconciliations and all records showing, at least quarterly, a listing of all clients for whom the lawyer holds money in any client trust account, with each client’s related balance, the grand total of which equals the reconciled trust account balance on the bank statement covering the same period." IdahoNoN/A IndianaNoN/A KansasNoN/A KentuckyNoN/A LouisianaYesRule 1.15(f) of the Louisiana Rules of Professional Conduct states "[a] lawyer shall subject all client trust accounts to a reconciliation process at least quarterly, and shall maintain records of the reconciliation as mandated by this rule." MaineNoN/A MarylandYesThe Maryland Procedural Rules - Attorney Trust Accounts, Rule 16-606.1(b) requires monthly reconciliations. "An attorney shall cause to be created a monthly reconciliation of all attorney trust account records, client matter records, records of funds of the attorney held in an attorney trust account as permitted by Rule 16-607 b, and the adjusted month-end financial institution statement balance. The adjusted month-end financial institution statement balance is computed by adding subsequent deposits to and subtracting subsequent disbursements from the financial institution's month-end statement balance." MichiganNoN/A MinnesotaNoN/A MississippiYesAlthough Mississippi's Rules of Professional Conduct do not explicitly state that three-way reconciliation is necessary, the state bar association provides guidance stating that such a reconciliation is required. MontanaYesMontana Supreme Court Rules on Trust Account Maintenance and Audit Requirements Rule 5(C) requires three-way reconciliation NebraskaNoN/A NevadaNoN/A New HampshireYesRule 50(B) of the Rules of the Supreme Court of New Hampshire require three-way reconciliation. New MexicoYesRule 17-204(A)(7) of the New Mexico Annotated Rules requires "written reconciliations made at least quarterly of the checkbook balance,
the bank statement balance, and the client trust ledger sheet balances." New YorkNoN/A North CarolinaYesNorth Carolina Rule of Professional Conduct Rule 1.15-3(d) requires quarterly three-way reconciliation. North DakotaNoN/A OhioYesRule 1.15(a) of the Ohio Rules of Professional Conduct requires monthly three-way reconciliation. OklahomaNoN/A OregonNoN/A PennsylvaniaYesRule 1.15(c)(4) of the Pennsylvania Rules of Professional Conduct requires monthly three-way reconciliation. Rhode IslandNoN/A South DakotaNoN/A TennesseeYesFormal Ethics Opinion 89-F-121 requires three-way reconciliation. TexasNoN/A UtahNoN/A VermontYesAlthough not explicitly stated in Rule 1.15 of the Vermont Rules of Professional Responsibility The Vermont Professional Responsibility Program advises that three-way reconciliation is required monthly. VirginiaYesRule 1.15(f) (4)-(5) of the Virginia Rules of Professional Conduct requires quarterly three-way reconciliation. WashingtonYesRule 1.15(h)(6) of the Washington Rules of Professional Conduct requires three-way reconciliation "as often as bank statements are generated or at least quarterly." West Virginia NoN/A WisconsinYesRule 1.15(f)(1)(g) of the Wisconsin Rules of Professional Conduct requires three-way on a reconciliation "on a regular and periodic basis not less frequently than every 30 days." WyomingYesRule 1.15(g)(3) of The Wyoming Rules of Professional conduct requires three-way reconciliation at least quarterly.

Featured image: “Business and financial graph and figure report on desk in the office” from Shutterstock.

The Trust Account Report You Probably Aren’t Doing (that You Absolutely Need To) was originally published on Lawyerist.com.

Categories: Teknoids Blogs

Sometimes Laws Are Too Important to Be Left to Lawyers — Lawyers Without Technical Support

slaw - Thu, 01/28/2016 - 07:00

This article explains how to prevent the very damaging ignorance and avoidance of the technology that underlies widely used important laws. For example, the probability of wrongful decisions, in both civil and criminal cases, has been raised to what should be considered to be an unacceptably high level by the very false and unanalyzed (blind) assumption that electronic records technology is just a speeded-up and more convenient version of paper records technology. In fact the wordings of the electronic records provisions of the Evidence Acts declare the law to be that they are very different technologies.

As examples of the poor performance of laws due to “technology ignorance and avoidance,” consider the use of the laws that provide the foundation for the use of electronic records:

1. Electronic records as evidence: They are the most frequently used kind of evidence. The electronic records management system technology (ERMS technology) that controls their existence, accessibility, and integrity will need a larger and more complex legal infrastructure of laws, and increased number of varieties of specialized personal such as lawyers, judges, administrators, and enforcers, than do motor vehicles. But in fact it is a technology having almost no regulation. As a result, major errors in records management and software, which frequently cause records to be lost, destroyed, and corrupted, are very common. I know this to be so from my many years working with experts in ERMS technology, servicing large institutional clients.

Nevertheless, the “system integrity” requirement of the electronic records provisions of the Evidence Acts is completely ignored—admissibility of an electronic record requires proof of the integrity of the electronic records system in which it is recorded or stored; e.g., s. 31.2(1)(a) of the Canada Evidence Act, and s. 34.1(5),(5.1) of the Ontario Evidence Act. Such provisions are in 11 of the 14 Evidence Acts in Canada, including Book 7, “Evidence” of the Civil Code of Quebec. See; (1) “Admissibility of Electronic Records Requires Proof of Records Management System Integrity”; (2) “Electronic Records as Evidence”; (3) “The Admissibility of Electronic Business Records,” (2010), 8 Canadian Journal of Law and Technology 105; and, (4) “A Legal Opinion is Necessary for Electronic Records Management Systems.”

But, there is a new, necessary, and potentially very profitable specialist lawyer and practice being developed, although not yet recognized as such; see: (5) “’Records Management Law’—A Necessary Major Field of the Practice of Law—A Summary” (a summary of the full article at, (2015), 13 Canadian Journal of Law and Technology 57); and, (6) “The ‘Records Management Lawyer’ – A Specialist in a Necessary Major Field of the Practice of Law.”

2. The National Standards of Canada for electronic records management: “System integrity” is a very complex ERMS principle and practice. Therefore its proof requires the application of these national standards: Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (“72.34”), and, Microfilm and Electronic Images as Documentary Evidence CAN/CGSB-72.11-93 (2000) (“72.11”). Experts in electronic records management apply more than 250 tests to certify the compliance of an ERMS with these standards. But with one exception, the case law on the admissibility of electronic records and electronic discovery ignores them; see: R. v. Oler, 2014 ABPC 130 (CanLII), [2014] A.J. No. 669. It is a dangerous and unacceptable ignorance that allows for the continuation of the very inadequate process currently being used to create a second edition of 72.34; see:“Admissibility of Records Dependent Upon a Poorly Drafted National Standard.”

3. Electronic Discovery Proceedings: In regard to the first edition of the Sedona Canada Principles, see: “The Sedona Canada Principles are Very Inadequate on Records Management and Electronic Discovery.” The new Sedona Canada Principles 2d edition, perpetuates the major shortcoming of the first edition. Both fail to recognize that the efficacy and honesty of electronic discovery proceedings depends upon the state of ERMS integrity. Sedona Canada is based upon the pre-electronic paper records management systems principle that discovery is not be used to judge the quality of evidence. Therefore it does not require an investigation of the quality of management of an ERMS system.

A pre-electronic paper records management system can be represented by a piece of paper in a file drawer, but an electronic record must be represented by a drop of water in a pool of water. A piece of paper is not affected by its file drawer, or by all of the file cabinets in a paper records system. Therefore the state of records management is irrelevant to discovery and admissibility proceedings. But an electronic record has no physical existence except as a group of electrons in an ERMS. Therefore it is completely dependent upon its ERMS for its continued existence, accessibility, and integrity. Therefore to enforce the effectiveness of electronic discovery proceedings, the state of ERMS management must be ascertained. That requires the application of the national standards of electronic records management by which to judge the state of ERMS management. Otherwise, to believe that electronic discovery can be effective in providing adequate and honest production of records by the parties, is an illusion and a pretence.

But footnote 247, on page 78 of Sedona Canada 2d cites the National Standards of Canada, along with other standards, only in relation to, “… determining admissibility of digitized electronic records in lieu of paper originals.” But even for that limited purpose it states that such standards, “are not mandatory.” The integrity of any electronic record requires proof of the “system integrity” of its ERMS during the whole of its history in that ERMS. The Evidence Acts declare that to be the burden of proof for admissibility. Sedona Canada 2d, like its predecessor, shows a lack of understanding of the ERMS technology, i.e., no understanding of the need for standards to ensure the adequacy of electronic discovery, and its connection to proof of “systems integrity,” as is required by the electronic records provisions of the Evidence Acts. And such proof should be required in every jurisdiction, whether or not its Evidence Act has electronic records provisions—ERMS technology doesn’t change its nature to suit an Evidence Act.

4. The “Review” Stage of Electronic Discovery: The greatly increased cost of electronic discovery proceedings, produced by the increased volume of electronic records created by the great automation capacity of electronic records technology, should be dealt with the way legal research methods deal with even greater volumes of legal publications. As a result of the following factors, there is no need for a “proportionality” principle to limit the legal research burden inflicted by an opposing party: (1) legal research materials are highly abstracted, headnoted, and indexed; (2) the searching is done by experts trained in legal research—lawyers and law students; and, (3) the searching is done electronically. As a result, the searching for and reviewing of legal materials are done as one operation, applied to electronically stored indexes and summaries. The present “review stage” problem exists because it cannot be done that way.

But if clients indexed all significant records as they were created or received, the review stage of electronic discovery could be performed much the same way as is legal research. The litigation or records management lawyer specialist could search clients’ ERMS databases electronically for relevant and potentially privileged records. One of the functions of the records management lawyer would be to teach clients indexing (clients know the keywords of their business vernacular), and persuade them that they would get as much useful information for doing business daily as they do from maintaining their financial records in a continuous fashion. As a result, clients’ auditors don’t have to use the very time consuming, blunt force method of reading (or training expensive electronic devices to read) thousands of records before they do an audit. Neither should lawyers.

There is always a price to be paid if a new technology is to be used safely—mass transportation by horses required much less legal infrastructure than do motor vehicles, which has never stopped expanding in volume, complexity, and necessary resources. Only because that price has not been paid has electronic discovery made litigation too expensive for the majority of the population. Pay the price, or don’t use the technology. See: (1) “Solving the High Cost of the ‘Review’ Stage of Electronic Discovery”; (2) “‘Records Management Law’- A Necessary Major Field of the Practice of Law-A Summary”; and, (3) Indexing.

5. Evidence Code technology wasted and still needed: in 1976-77, I conducted an extensive national consultation process with judges and lawyers for the federal Department of Justice as to replacing legislation such as the Canada Evidence Act, and the binding requirement of existing case law, with the Evidence Code that was proposed by the (LRCC’s) Law Reform Commission of Canada’s Report on Evidence (December 1975). It was a proposed Canadian version of one of the most successful codifications of American law, the Federal Rules of Evidence (operative from July 1, 1975), now entitled the, Restyled Federal Rules of Evidence (operative from December 1, 2011).

Codification of the law of evidence was meant to cure the problem that it exists as a, “proliferation of ostensible legal rules, refinements of rules, distinctions in the refinements, refinements and distinctions in the exceptions, and so forth ad infinitum” (Report on Evidence, p. 4). And, “the law of evidence rides on the back of the jury trial,” meaning that only in jury trials must courts stop and decide issues of evidence when they arise—is the jury going to hear the evidence or not?—rather than being able in a non-jury trial to postpone a decision to a stage in the proceedings when a decision is no longer necessary. Jury trials develop the law of evidence; non-jury trials, much less so. But the frequency of jury trials has been diminishing for several years.

Because of the Evidence Code’s great section-by-section similarity, I referred to the case law generated by the Federal Rules as being, “a wealth of free legal technology flowing across the border” as authoritative guidance without being bound to apply any of it. However, because codification was viewed as necessarily replacing the deeply loved and entrenched common law method of developing law by way of judges’ decisions, it never became law. To that end, major support was provided by the (OLRC’s) Ontario Law Reform Commission’s Report on the Law Evidence (June, 1976). It was strongly against codification, stating, (p. xi):

“We remain convinced that the common law approach to evidence is basically sound, and that it would be unwise to reform the law in radically new directions, alien to the tradition of the common law, for example by leaving the admissibility of evidence solely to the judgment of individuals presiding in particular cases.”

This is a gross overstatement as to how a code operates. The Canadian Charter of Rights and Freedoms is a code and it doesn’t operate that way, i.e., judges deciding cases without regard to previous Charter decisions, nor to pre-Charter decisions as non-binding sources of information and guidance. Instead of codification, the OLRC proposed a substantial amending of the rules of evidence. But its Report on the Law of Evidence is no longer available among government publications.

Between the recommendations of those two law reform commission reports, the option of a comprehensive legislative statement of the law of evidence was debated. Whereas prior case law would not be binding on the provisions of a code, the provisions of a legislative statement would be considered to be the product of prior case law, as were the provisions of the Criminal Code when first enacted in 1892.

The LRCC’s Evidence Code was, and still is badly needed, excellent legal technology; see: “A Canada Evidence Code Should Replace the Canada Evidence Act,” which provides more history as to the Evidence Code and thereafter. The Report on Evidence is no longer available as a government publication, and the LRCC was ended in 1993. Before that, two of its four commissioners had moved on to become Justices of the Supreme Court of Canada: Antonio Lamer (from 1980, and Chief Justice of Canada, 1990-2000), and G.V. La Forest (1985-1997). They put their names to the Report on Evidence and its Evidence Code, as did the Chairman, Justice E. Patrick Hartt, of the Ontario Superior Court of Justice. The fourth commissioner was from a discipline other than law.

Fortunately, as the Editor-in-Chief of the CRNSs, I had the Report on Evidence with its Evidence Code, reproduced at, (1976), 34 Criminal Reports New Series 26-116. It could be used for evidence courses today, and if updated with the additions created by the Canadian Charter of Rights and Freedoms, it could be a federal or provincial codification of the laws of evidence today. See: “The Meaning of Codification” (1976), 35 Criminal Reports New Series 178; e.g., the Charter is a code; the Criminal Code is not.

Almost all U.S. states have adopted the Federal Rules of Evidence as their state codes of evidence. It has given the American law of evidence a much greater accessibility and therefore flexibility of application. The effect of a Canada Evidence Code, in terms of frequency of use, would have been comparable to that of the Canadian Charter of Rights and Freedoms upon the practice of criminal law.

Providing technical support for laws based upon technology

The above five poorly used laws and procedures in regard to such an important area of law and practice (as is the use of records as evidence), due to ignorance of the technology upon which such laws must be based, provide support for the proposition that sometimes laws are too important to be left to lawyers—lawyers without technical support. Law school and CPD/CLE courses must provide a cure—courses that cut across the traditional divisions among areas of law, to teach the many ways in which laws are dependent upon technology for their effective use. Otherwise, the law is limited to what lawyers and judges know, instead of being compatible with what the underlying technology requires.

For example, because model codes of evidence had been used as the foundation for decades of American law school evidence courses, and judges’ and lawyers’ comparative analyses, the “codification versus common law” issue played only a very small part in the debates preceding the enacting of the U.S. Federal Rules of Evidence. But in Canada, it dominated the whole two-year consultation process. In Quebec of course, codification was well received, as it was at a meeting of senior Maritime judges and lawyers in Halifax on April 1, 1977. (April 3rd, I was back into winter, in Yellowknife, NWT, and then on to Whitehorse, Yukon.) But generally, the further west I went, the less well received it was and the love of the common law more intensely expressed.

However, there is a way of preventing such damaging consequences of the avoidance and ignorance of a necessary knowledge of how technology should impact the use of technology-dependent laws.

I have previously advocated that Canada’s law societies are badly in need of a civil service-type national institution to advise them; see: “A2J: Preventing the Abolition of Law Societies by Curing the Defects in their Management Structure: A Solution to the Unaffordable Legal Services Problem.” Without such an institution providing permanently developing expertise and advice, they have no capacity to solve complex problems like the unaffordable legal services problem. Such a service would advise Canada’s law societies that such an “access to justice” problem is not a legal problem. It requires an expertise that lawyers do not have. Nevertheless, every current “Access to Justice” committee is composed entirely of lawyers, and some have judges as chair persons and strong supporters. Therefore benchers operating within their 19th century law society management structures cannot cope with such problems. And in this century there will be many more such complex problems because: (1) technology will become a comprehensive basis of our lives and laws; and, (2) the need and demands for laws and the rule of law to control and improve ever-more areas of human activity and dependence; e.g., compare laws now and 30 years ago as to: rights, freedoms and the rule of law; the environment; privacy; electronic commerce; etc.

The required solution is not the law societies’ present promotion of alternative legal services which are for the most part, administrative agencies based upon a strategy of “cutting costs by cutting competence,” i.e., the necessary competence of a lawyer. And, do we want the administration of justice to become almost entirely administrated by administrative agencies, with the necessary judicial correcting and accountability function playing but a minor part? See: “A2J: ‘Let Them Eat Cake,’ So, Let Them Use Alternative Legal Services.”

Added to their great management weaknesses, the continued existence of law societies with their present powers and purpose is threatened by the great communications power provided by the social media, news media, documentary and investigative facilities and agencies, plus the sophisticated pressure groups. Inevitably they will make the problem a very publically examined and threatening problem. While that majority of the population that cannot afford legal advice services continues to be an ever-increasing majority, along with an ever-increasing percentage of self-represented litigants, the probability of demands that law societies be replaced, will grow with them. Governments will be compelled to act.

Such an advisory institute would be paid for by enabling CanLII, the provider of court decisions and statutory materials, to provide at cost, legal opinions for every lawyer and judge in Canada. A separate judges’ division, feeding off the same databases, and specialization of every factor of production, and economies-of-scale, is quite possible. And it is necessary because “clerking” by law students and lawyers who are not career-oriented legal research lawyers should be considered to be an obsolete method of doing legal research, because it is the foundation of all legal advice services.

I know from my experience in creating the necessary technology used by LAO LAW, which is Legal Aid Ontario’s (LAO’s) centralized legal research unit, that such a service would be well used, and make a lot of money because it helps lawyers make money. It would have no competitors and exclusive possession of the necessary know-how. It would have a degree of specialization and scaled-up volume of production providing the necessary economies-of-scale that are far beyond what any law firm is capable of. LAO LAW is the best legal research unit in Canada because in 1979 LAO was put under the necessary government pressure to reduce the money being paid out on lawyers’ accounts for legal research hours claimed. Law societies have never experienced such pressure, therefore no such innovation has occurred. As a result, LAO LAW was created in the legal profession’s most poorly resourced institution rather than in its best. But, by its ninth year of development (1988), it was producing 5,000 legal opinions per year for the benefit of the clients of legal aid lawyers in private practice. But, LAO has since suffered a number cuts in its funding. Nevertheless LAO LAW remains a true support service, using the same technology of centralized legal research that provides a method of production that should be applied to many other types of lawyer’s work besides legal research. See: Access to Justice—Unaffordable Legal Services’ Concepts and Solutions.

In contrast, the legal profession continues to use a handcraftsman’s method whereby each law firm depends only on its own internal resources. The legal profession’s method of production is that of a sophisticated cottage industry. And it is managed by benchers who are but part-time amateurs, lacking the expertise to solve any present or future complex access to justice problem. That method, no matter how much it is embellished, makes the unaffordable services problem inevitable, and ever-lasting and growing. Similarly, no matter how much a bicycle is improved, it cannot be made to provide the speed, capacity, and cost-efficiency of a motor vehicle.

By means of CanLII’s sponsor, the Federation of Law Societies of Canada, CanLII could provide that legal opinion and memoranda of law service, and provide it to a vastly larger market than would have been available to LAO LAW (had the law society, as its then manager, allowed LAO LAW to earn that money for LAO). Then when governments are forced to publically hold law societies to account for a lack of progress in solving the unaffordable legal services problem, they will have a very good answer—a solution is in progress. See: “Access to Justice – Canada’s Unaffordable Legal Services Problem – CanLII as the Necessary Support Service. Financing such a national institution for the legal profession could also be aided by the many institutions and university policy development organizations that study the justice system.

Such an institute, like a civil service, would have the necessary continuously developing expertise with which to advise all lawyers and law societies as to the technology underlying laws, or that must be made available to laws to facilitate their success. Many more laws will be based upon technology, and they will have to be as complex as the technology they regulate. And such technology-based laws will need knowledgeable lawyers. But no longer can law societies expect that lawyers will know that technology and how to interpret, apply, and argue the laws based upon it. That is shown by the above examples.

The bridge between access to justice problems and the efficacy of technology-based law problems is ignorance of: (1) the necessary impact of technology upon laws; and, (2) the impact of ever-changing economic and social circumstances upon the practice of law. That bridge should be supported by a permanent national institute that has the ever-developing expertise and advisory function that a civil service provides to an elected government, plus a counterpart to the model draft legislation function provided by the Uniform Law Conference of Canada (which is why many laws on the same subject, are very similar, one jurisdiction to the next, as might be law society rules of professional conduct for example). Such a national law society-created institute would draw its financial support from CanLII, and root its support from the legal profession in law school and CPD/CLE courses concerning the impact of technology upon laws and lawyering.

But to implement these ideas would require strong and innovative law society leadership. In sharp contrast, the stand pat, “populist” style has prevailed for many decades. And given the lack of change in law society management structure and performance, most probably it has prevailed since Canada’s first law society was created during the British colonial period, on July 17, 1797, in Niagara-on-the-Lake (present pop., 17,000), in the province of Ontario (formerly, Upper Canada); see: Christopher Moore’s The Law Society of Upper Canada and Ontario’s Lawyers 1797-1997 (University of Toronto Press, 1997).

Categories: Teknoids Blogs

My Twitter Digest for 01/26/2016

<CONTENT /> v.5 - Wed, 01/27/2016 - 15:30
Categories: Teknoids Blogs

Electronic Designation of Beneficiaries

slaw - Wed, 01/27/2016 - 12:10

From time to time the question of electronic wills is raised for discussion. This Uniform Law Conference has visited the topic a couple of times.

I have a related question today: should people be able to use electronic means to designate beneficiaries of savings plans (pension plans, RRSPs, TFSAs etc.) or insurance policies? If so, how? And if not, why not?

Usually such designations have be in writing and signed. The Uniform Electronic Commerce Act permits both e-documents and e-signatures. However, the UECA excludes wills and codicils. Most if not all provinces and territories have adopted this exclusion.

It is not clear whether a beneficiary designation is a will (or codicil). On the one hand, the effect is testamentary: the designation says what happens to assets or proceeds after the owner’s death. On the other hand, the formalities are less (nothing about witnesses, for example), and the language of wills is not used – arguably showing an intention not to treat these documents as wills.

So it makes sense to remove doubt by legislation – if one wanted to allow e-designations.

There are a number of legislative options, and jurisdictions may choose their own.

A: Amend the e-commerce/e-transactions/e-information statute to say that beneficiary designations are not wills or codicils (so the Act applies to them.)

B: Amend the statutes that mention plans (if any) to allow electronic designations, e.g. in Ontario, the Succession Law Reform Act, the Insurance Act.

I understand that BC has amended its wills statute to say that a designation is not a will, and its insurance legislation to allow e-designations that conform to the Electronic Transactions Act.

I understand that Alberta has changed its insurance statute(s) to allow for e-designations.

If allowing e-designations, are there any protections to build in? It is common that people acting under a power of attorney cannot make wills for the beneficiary … or change beneficiaries of plans. Do we need to spell out that limit again?

Normally the designations are done by the owner with a financial institution or insurance company that has already has a business relationship with the person and has established a means of authentication (or establishes it for other purposes, such as payment, at the time of the designation.) This makes the matter safer than, say, a will that might be made at large and pulled out of the ether by a purported beneficiary after the death of the testator.

So the law can probably safely leave authentication and authority questions to the plan administrators (given that they would run the risk of having to pay twice if they paid to a wrongfully designated beneficiary).

Alberta apparently requires that the designation be made directly between the insured and the insurer, and allows the Superintendent of insurance to make regulations with extra protections.

Do we want different rules for e-communications for different purposes, or with different parties?

Is there a difference for this purpose between savings plans (pensions, RRSPs, TFSAs) and insurance policies?

Is there a difference between establishing the plan, making the initial designation and amending it?

Bottom line: would you be comfortable if the law simply allowed electronic designation of beneficiaries of savings plans and insurance policies, without more?

Categories: Teknoids Blogs

Invasion of Privacy Tort Continues to Develop

slaw - Wed, 01/27/2016 - 09:22

In Ontario, conventional wisdom was that invasion of privacy was not something you could sue for. But that is changing, as evidenced by a just released decision of the Ontario Superior Court of Justice called Jane Doe 464533. That decision awarded damages and costs totaling $141,000, plus an order for the defendant to destroy any video or images he may still have, never to share any intimate images of the plaintiff, and to not communicate with the plaintiff or her family. A pdf version of the decision is here: Doe – redacted

Until this decision, the first case of a successful tort action for invasion of privacy was Jones and Tsige. The tort in that case was called intrusion upon seclusion, and basically applies only to nosy neighbour cases. In other words, where an individual accesses personal information on someone for nothing more than curiosity. The damages for that are capped to such an extent that in practice it probably isn’t worth taking it to court.

Some privacy class actions have been started since then, which would require an expansion of current law to succeed, but none have reached trial.

In the Jane Doe case the defendant was a former boyfriend of the plaintiff who convinced her to take an intimate video of herself, promising that he would not show it to anyone. But of course he posted it online. That lead to severe emotional distress for the plaintiff.

While the decision is ground breaking, there is a caveat to it. The defendant did not file a statement of defence, and this decision was based on a motion for default judgment. So while the decision is well reasoned, there was no contrary position presented. This issue will eventually make it to an appeal court in another case to settle the law.

This decision will no doubt be analysed and cited by anyone attempting to sue for a privacy breach, or seeking a remedy for cyberbullying or revenge porn.

Categories: Teknoids Blogs

Union Grievances and Discrimination Under the Human Rights Code

slaw - Wed, 01/27/2016 - 09:11

Can a unionized employee who received settlement money as a result of a union grievance also make an application under the Human Rights Code, alleging discrimination as a result of the same situation? Two recent cases of the Ontario Human Rights Tribunal have addressed this issue with opposite outcomes. In Ma v University of Toronto, an employee’s application was allowed to continue, whereas in Sikorski v Vaughan (City), the employee’s application was dismissed.

The tribunal reached these decisions after interpreting Section 45.1 of the Code, which states that: “The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.” It is well-settled law that settlements of grievances constitute proceedings. The outcome of each was decided primarily on the basis of whether the settlement was voluntary on the part of the employee.

In Ma v University of Toronto, the settlement was not held to be binding because the employee did not voluntarily agree to it. They did not sign the Memorandum of Settlement, and the settlement funds were deposited in the employee’s bank account without any necessary action on the part of the employee. The Tribunal found that there was no choice given to the applicant to accept or reject the payment and Memorandum of Settlement. The Tribunal also noted that it was unclear if the issues settled during the grievance were identical to those of the human rights application.

In Sikorski v Vaughan (City), the settlement was held to be binding, even though the applicant was not a signatory to the settlement, because while there was not explicit acceptance, there was held to be implicit acceptance. The employee was given a cheque for 28 weeks’ pay as part of the settlement and made an active choice to cash it, thus voluntarily and deliberately accepting the settlement. This was contrasted with the previous case on the basis that the employee in Ma v University of Toronto received the money through direct deposit and so the settlement money there was received in a passive manner.

Therefore, when structuring a settlement agreement resulting from a union grievance, one should be aware that the level of involvement of the employee in the settlement and acceptance of funds may be a very relevant factor in whether the employee is permitted to bring a similar human rights complaint afterwards.

Categories: Teknoids Blogs

Logic Models and Legal Education

slaw - Wed, 01/27/2016 - 09:06

Over the weekend, I had opportunity to speak with a high school student about the path to law school and into the legal profession. We spoke at some length about the importance of her pre-law education, in terms of ensuring her grades were high enough to get into law school but even more in terms of ensuring she has a strong background in relevant skills, e.g. business administration, project management, accounting or engineering. I urged her to be practical in terms of making her under-graduate choices so as to position herself well for a future in a changing profession.

The importance of those early choices was underscored for me when I spent a morning this week with others from the non-profit sector learning about the use of logic models as a tool in the evaluation toolkit. We learned about the difference between outputs and outcomes, inputs and activities. We drew visual representations of the programs we work in. We talked about indicators and participants and stakeholders.

It was an entirely new language for me and I found myself struggling, floundering even, to grasp the import of this concept, never mind the tool itself. I trained as a lawyer, you see, not as a non-profit executive, but my current role as Executive Director of Legal Help Centre of Winnipeg requires me to be a bit of both.

Surrounded in this workshop by many who’ve made their careers in the non-profit sector, I realized how little I know of the world they operate within. I don’t fully understand the culture, certainly not the language and haven’t a history of sector experience or a team of experienced colleagues to learn from.

My current cross-sectoral experiences are bringing home to me the importance of having a wide range of tools in my toolbox. In this role, I need to draw upon skills in persuasive writing, risk management, project management, corporate communications, human resources, organizational finance, corporate board governance, office management, information technology and more.

Many of these skills were noted in the CBA Futures Report as essential both for new lawyer training and for legal professionals in the future. I can’t help but wish these areas had been part of my early training, though I have found learning with others doing similar work has its own rewards.

If the future of legal work does indeed involve greater collaboration and cooperation across professions as predicted by CBA Futures and many others, it seems to me that law schools will need to create more opportunities for students to learn from and engage with other professional faculties. Continuing professional development providers, whether law societies, bar associations or others, would also do well to facilitate such learning opportunities.

Knowing the law and how to apply it, essential skills for lawyers in the past, likely won’t suffice for lawyering in the future. Much more is needed and for some of us, is needed now.

Categories: Teknoids Blogs

Consent in the Online World

slaw - Wed, 01/27/2016 - 08:22

Online consent is a mirage. Every day we are asked to click yes “I agree” to download the latest software or to use Wi-Fi connections. However, rarely do people read the license agreements or terms and conditions attached to the service. For all we know, we could be agreeing to the sale of our first-born child, as shown in this experiment.

Online contracts remain unread because consumers lack any meaningful incentive for reading the agreement. Before hitting “I agree”, people cannot call up Apple or any other provider and negotiate a different license agreement. We either accede to the terms and conditions or we do not use the service/product.

Although the law has upheld click-wrap agreements, companies should strive for meaningful consent. A better way to handle consent in the online world is to embed permission into the design of the program. The information embedded into the design of the program should be easily understood. And more importantly it should take into account common cognitive biases and errors.

For more information on meaningful online consent read: Guidelines for Online Consent by the Office of the Privacy Commissioner: https://www.priv.gc.ca/information/guide/2014/gl_oc_201405_e.asp

Categories: Teknoids Blogs

Content Marketing: What It Is and How To Do It Right

The Lawyerist - Wed, 01/27/2016 - 07:12
“Content marketing is all the marketing that’s left.” —Seth Godin

You can no longer rely solely on paid ads and word-of-mouth referrals to attract potential clients. Instead, you need to create and share content that draws in and engages potential clients with content marketing. According to the Content Marketing Institute:

Content marketing is a strategic marketing approach focused on creating and distributing valuable, relevant, and consistent content to attract and retain a clearly-defined audience—and, ultimately, to drive profitable customer action.

Let’s break this down to fully understand how content marketing works.

Create Valuable, Relevant, and Consistent Content

Content marketing is about creating content that truly matters to your audience. The words you write must resonate with your preferred client, so write about items that matter to your audience. Your articles must provide value that your readers can continuously come back to, share, and act on.

You also need to have a consistent publishing schedule with pieces that are consistent with your brand voice. This consistency will make it easy for your audience to come back to you time and again to see what new information and insight you have to share.

Distribute Your Content

Once you have determined the type of content that is relevant and valuable to your audience, you need to distribute it. There are many platforms on which you can publish your content:

In addition to these platforms, you can also choose from various content formats:

  • Articles
  • E-books
  • Webinars
  • Press releases
  • Social media updates

Content marketing encompasses more than words. It also includes visual content such as images and videos. In fact, these forms of content may gain more traction than mere words:

Target Your Content to a Defined Audience “When you write, you are writing for your audience—not yourself.”

If you remember only one thing from this article, make it this: When you write, you are writing for your audience—not for yourself. If you do not yet know who your audience is, take some time to figure it out. The tone you use and the formats and platforms you choose will depend greatly on the demographics of your audience.

Once you know who you are writing for, spend some time learning about what matters to your audience. Listen closely to the questions and concerns they raise in your presence and online. Craft content that addresses those concerns and questions.1

Get Your Audience to Take Action

Identify your goals and then incorporate them into your content marketing efforts. Those goals could include:

  • Getting more traffic to your website or blog
  • Increasing the number of potential-client contacts from your website
  • Building stronger relationships for ongoing referral purposes
  • Broadening your reach through social shares

Whatever your goal is, never leave your audience guessing as to what the next step is once they reach your content. Tell your audience what to do next. Include calls to action (CTAs) in your content, whether it is a simple “pick up the phone and call,” “retweet this,” or “fill out this short contact form.”

4 Steps to Successful Content Marketing

This plan will provide you with the framework you need for the ongoing creation, delivery and maintenance of your content.

1. Create a Content Marketing Plan

It should outline your strategy, identify your audience, and define your goals. From there, it should also answer these questions:

  • Who will create the content?
  • What will they create?
  • Where will you publish?
  • When will you publish?
  • How often will you publish?
  • Why is the content important to your readers and your firm?
2. See the Plan Through

Time and again I have seen lawyers fail at content marketing. Some have chosen to start a blog, but then slowly stopped posting on schedule … and then stopped posting altogether. Others have created social media profiles just to have them sit stagnant. And yet others have failed to see that content is a living, breathing thing that requires continual updating, which leads to outdated website content and old bios.

When you undertake content marketing, you are also undertaking the responsibility to keep your marketing fresh and vibrant. If you cannot handle this on your own, task someone else with helping you. Your spouse, your partner, an associate, an office manager, a marketing specialist. And whomever you task to help you, make sure you have specific activities and goals in mind.

3. Engage with Your Audience

This is important regardless where you publish your content. Publishing often enough to show prospective clients that you stay current with their industry is just the first step in the content-marketing process. Whether through blog comments, Facebook posts, or other social platforms, you must also engage in a dialogue with your audience. This provides a personal connection to you and also helps build community and brand awareness.

4. Measure Your Efforts 

This one is tricky for even the most seasoned marketers, and here’s why: most measurements focus on numbers, not on effect. While you can measure retweets, likes and followers, but do you know how those numbers affect your bottom line?

According to Jay Baer, an industry-leading digital marketing strategist, you must actually measure metrics from these four buckets:

  • Consumption
  • Sharing
  • Leads
  • Sales

Ask yourself if your audience is seeing, sharing, and acting on the content you create. If not, use your measurements to fine-tune your efforts by producing more content your audience prefers and reaching out to them via the platforms where they are most engaged. From there, you can measure whether your improved efforts are increasing your prospects and helping you convert those prospects to actual clients.

Content Marketing Requires Constant Attention

Content marketing is not a one-and-done type of effort. It requires ongoing attention. You must continuously produce, publish and engage on a content level. This does not mean you must be active every day, but it does mean you must be active on a consistent basis.

Featured image: “Brown notebook with Content marketing word and pencil with speaker icon on wood table, Technology concept” from Shutterstock.

  1. You should obviously never dole out legal advice in your content unless you want to be held responsible when someone takes your advice. 

Content Marketing: What It Is and How To Do It Right was originally published on Lawyerist.com.

Categories: Teknoids Blogs

Wednesday: What’s Hot on CanLII

slaw - Wed, 01/27/2016 - 07:00

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. R. v. Elliott, 2016 ONCJ 35

One cannot understand this case without knowing about Twitter. The evidence about Twitter – what it is, how it works and how its users understand that it works – came from four sources: the evidence of Police Constable Dayler, who is qualified as an expert in Twitter; the evidence of Ms. Guthrie, who works as a consultant and depends on Twitter for her work, and who tweets and reads others’ tweets extensively; the evidence of Ms. Reilly, who had sent over 300,000 tweets at the time she testified; and the tweets of Mr. Elliott, who did not testify but expressed his views about Twitter in some tweets that he sent.

(Check for commentary on CanLII Connects)

2. R v Abdulle, 2016 ABCA 5

[12] The appellant advances two errors by the trial judge in the application of the rule in Browne v Dunn. First, he says the trial judge erred in applying the rule to insignificant or minor details. The trial judge found that the failure to cross-examine with respect to alcohol was a detail not warranting a strict Browne v Dunn application, yet he said he would use it in assessing credibility. Similarly, the trial judge said he would not strictly consider the failure to cross-examine with respect to marijuana from a Browne v Dunn perspective, yet he did consider it from a credibility perspective.

(Check for commentary on CanLII Connects)

3. R v Seruhungo, 2015 ABCA 189

[31] We agree with our colleague’s assessment that these concerns go to authentication of the text messages as being communications between particular individuals, as opposed to hearsay. In response, we make these observations. First, no explicit objection to admissibility was made on this basis on the voir dire (and, given the trial judge’s determination on the hearsay objection, the need to address authentication never arose). Indeed, Seruhungo’s factum (at paras 39-41) makes clear that his objection was that the Crown’s purpose was to confirm the truth of the evidence of certain witnesses, which purpose made the text messages hearsay. Secondly, the trial judge did not address the standard of proof for authentication, nor was the indirect evidence that might have supported a finding of authenticity properly explored. Again, in view of his finding on hearsay, the question of authentication was neither put before him nor decided by him. In our respectful view, it is not for this Court to rationalize the trial judge’s decision upon a basis which was not properly argued on the voir dire, not raised on appeal, and not decided by the trial judge.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Compagnie d’assurances générales Kansa Internationale ltée c. Lévis (Ville de), 2016 QCCA 32

[18] Une remarque préliminaire s’impose. Le dossier de première instance a été plaidé comme une poursuite contractuelle pour travaux et coûts additionnels encourus en raison d’un défaut de renseignement de la part du maître d’œuvre et aussi pour des conditions imprévues et imprévisibles lors de la mise en œuvre du projet sous l’autoroute. Durant ses observations devant cette Cour, cependant, Kansa a constamment tenté de réinventer sa cause d’action pour la convertir en poursuite pour comportement dolosif de la part de la Ville et de divers consultants, qui l’auraient sciemment induite en erreur sur la nature des sols, entraînant ainsi des travaux et coûts supplémentaires pour la portion hors tunnel et des plans et devis non réalisables en ce qui concerne les travaux en tunnel.

(Check for commentary on CanLII Connects)

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

Categories: Teknoids Blogs

Access to Justice: After the Machines Take Over

slaw - Wed, 01/27/2016 - 07:00

“The traditional professions will be dismantled, leaving most (but not all) professionals to be replaced by less expert people and high-performing systems.” This is the central message of The Future of Professions, a new book from Richard and Daniel Susskind. Machines, they argue, will take over much professional work. Even when the machines cannot do so alone, the Susskinds expect that they will allow laypeople, paraprofessionals, and the clients themselves do the necessary work.

One way or the other, highly-trained and expensive human professionals will be mostly cut out of the value chain. The future of the professions, in this view, doesn’t seem like much of a future at all. Richard Susskind’s previous books make it very clear that lawyers are included in this troubling prediction.

This prophecy can be disputed, or resisted on moral grounds. Let’s assume, however, that machines will in fact make steady incursions into lawyer work. What does this mean for access to justice in the future?

The Susskinds offer one reason for A2J optimism: machines will themselves soon provide mass, affordable access to justice. I believe there is another good news story for access to justice: by taking over much of lawyers’ current work, machines may allow the Bar to refocus on meeting other sorts of unmet legal needs, which demand the human touch.

The Machines do Law More Accessibly

The Susskinds are optimistic about access to justice because they think machines will deliver practical legal expertise more affordably and accessibly than lawyers can. Once legal knowledge is digitized and integrated with intelligent systems, they expect it to be applied repeatedly to many people’s problems with very low marginal costs. Relatively primitive template-fillers such as LegalZoom will soon evolve into systems which can intelligently apply legal knowledge to a wide range of disputes, compliance questions, and personal transactions.

Even where machines cannot entirely replace human lawyers, the Susskinds expect them to take over a significant part of the job and perform that portion cheaply and reliably. This “decomposition” process will reduce costs and prices, even if human lawyers remain in charge of the process.

The Machines Free Human Hands

I believe there is a second way that intelligent machines could make justice more accessible. The work that legal professionals now do is only a small portion of the legal work that needs to be done. Moreover, many areas of unmet legal need are also areas where humans could enjoy a relatively durable advantage over our machine competitors. If machines come to meet many of the legal needs that lawyers now serve, that could free lawyers to meet the legal needs which currently go unmet.

First, consider personal plight cases, such as those in family law and criminal law. Pervasive self-representation in these cases is perhaps the most obvious evidence we have of unmet legal needs. However, I have argued that personal plight legal work is more difficult than most legal work to decompose and automate. The clients are legally inexperienced and they are often enduring personal crises. While computers may one day be able to compassionately and creatively seek mutually acceptable resolutions in these cases, that day is far in the future.

Second, the Susskinds take special note of situations where professionals draw on their expertise to weigh competing values and make tough moral decisions. Decision-making around end-of-life medical care is an example they offer. The book notes that these may never be considered acceptable venues for machines to replace humans, no matter how “intelligent” the machines may be.

Many unmet legal needs also require legal professionals to take moral responsibility. Activist public interest lawyering on behalf of oppressed and equity-seeking people requires human, moral commitment. Without it, the powers that be will never take seriously its demands for social change.

Other unmet legal needs require us to make tough moral trade-offs as a society. In criminal cases, how can we reconcile the rights of the accused with the rights of the complainant and the demands of the public? In employment and social benefits law, how do we reconcile the free market’s enormous capacity to generate opportunity with its tendency to cast people aside like used Kleenex? There is an urgent need for moral, creative lawyers to research and ponder these and other constantly evolving issues, and draft laws and systems to respond.

Hopefully, if machines take over the work that lawyers now do, lawyers will be freed to concentrate on the legal work which needs to be done and that machines cannot or will not do. This version of the future would offer both better access to justice and a new pile of work to keep lawyers busy. Finding the money to pay them would be another challenge, but a techno-utopia like the Susskinds’ will surely create some opportunities on that front as well.

The Susskinds’ prediction of technological unemployment for professionals is a dark cloud indeed for lawyers. Only time will tell whether it actually does float into our skies. Even if it does, silver linings may be found in better access to justice via intelligent machines, and a renewed focus of human lawyers on expanding access to justice.

Noel Semple, Assistant Professor
University of Windsor Faculty of Law

Dr. Noel Semple is a member of the Canadian Forum on Civil Justice’s The Cost of Justice: Weighing the Costs of Fair and Effective Resolution to Legal Problems Research Alliance.

Categories: Teknoids Blogs

My Twitter Digest for 01/25/2016

<CONTENT /> v.5 - Tue, 01/26/2016 - 15:30
Categories: Teknoids Blogs

Nobody in Legal Tech Knows Anything About Practicing Law

The Lawyerist - Tue, 01/26/2016 - 14:13

Well, statistically nobody. According to a survey done by case management software company Smokeball, only 9% of legal tech employees have a legal education. When it comes to career background, only 18% of employees come from the legal industry in general. The survey doesn’t specify how many of the 9% of employees with a legal education had passed a bar exam or practiced law for any amount of time, or were actually in-house counsel and not associated with product development.

Maybe this low percentage is the root cause of the legal tech industry’s obsession with solving all the wrong problems, or maybe 9% is a typical percentage of ex-professionals to have on staff for companies trying to provide tech solutions to that industry. After all, an internet legal marketing or SEO company wouldn’t need a large percentage of their staff to have legal experience. But when it comes to actually writing software that serves attorneys in a niche area of practice, attorneys would want to know the people who made the software understand their practice before trying to sell them a new way of doing it.

The tech industry’s mantra of “disrupt all the industries” hasn’t yet had a cataclysmic effect on the legal industry the way Uber is disrupting the taxi industry. The legal industry is fundamentally different from industries like retail stores or taxi companies, mainly in that “legal services” is a fundamentally broad and nebulous concept that can be different state-to-state, county-to-county, city-to-city. The legal industry’s rule books (yes, there is more than one rule book) aren’t made by the free market—they’re made by courts, legislators or lobbyists, anti-competitive bar associations, city councils, and so forth. The tech industry has a very hard time understanding that just because they make something that they think is neat or incorporates bitcoin in some way, that doesn’t mean those in a position of power, like judges, “will have to accept it [because] it’s mathematic.

This is not to say that the tech industry is fundamentally incapable of understanding the wants and needs of both lawyers and people in need of legal services. The Smokeball survey predicts a trend toward a more even balance of tech and legal backgrounds in the legal tech industry. Perhaps we will start to see more industry crossover between lawyers and programmers, but until then we may be stuck with more stuff neither lawyers nor their clients want or need.

Featured image: “Stressed business woman in the office.” from Shutterstock.

Nobody in Legal Tech Knows Anything About Practicing Law was originally published on Lawyerist.com.

Categories: Teknoids Blogs

Podcast #52: Local Marketing, with Gyi Tsakalakis

The Lawyerist - Tue, 01/26/2016 - 07:12

“[Those] earning more than $150,000 per year were more likely to choose an attorney based on an internet search, than via a friend.”

Gyi Tsakalakis on what local marketing is, why it matters, and how to do it effectively. But first, don’t forget that a client and a customer are looking for very different things.

Client v. Customer

When talking about law practice, many draw analogies between selling iPhones and talking to potential clients, talk about product design like delivering legal services, and conflate holes and estate plans. Those can be useful analogies, but there is a fundamental difference between a customer who buys iPhones and a client who buys legal services. Seth Godin explained it in more detail in a recent blog post:

The customer buys (or doesn’t buy) what you make.

The client asks you to make something.

Don’t confuse the two.

Local Marketing, with Gyi Tsakalakis

The Internet is great for a lot of things, but the vast majority of potential clients still find a lawyer by asking a friend, family member, or colleague for a referral. But according to the same study, “[those] earning more than $150,000 per year were more likely to choose an attorney based on an internet search, than via a friend.” And many of those who don’t are turning to the Internet to confirm the referrals they get.

That’s where local marketing comes in. Local means meeting your clients where they already are, whether that means advertising in a community paper, church bulletin, or writing blog posts that will be interesting to your immediate geographic area. After all, do your clients care more about the latest tax decision or the latest coffee shop to open in the neighborhood?

On today’s podcast, Gyi Tsakalakis talks about what local marketing is, why it matters, and how to do it effectively.

Thanks to Smokeball and Ruby Receptionists for sponsoring this episode!

Support the Podcast

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Listen and Subscribe

To listen to the podcast, just scroll up and hit the play button (or click the link to this post if you are reading this by email).

To make sure you don’t miss an episode of the Lawyerist Podcast, subscribe now in iTunes, Stitcher, or any other podcast player. Or find out about new episodes by subscribing to the Lawyerist Insider, our email newsletter. We will announce new episodes in the Insider, and you can listen to them right here on Lawyerist.

Podcast #52: Local Marketing, with Gyi Tsakalakis was originally published on Lawyerist.com.

Categories: Teknoids Blogs

Rebuilding Client Relations

slaw - Tue, 01/26/2016 - 07:00

Have you ever upset a client so much you thought there was no way you will ever be able to work for them again? Maybe it’s ok, as you did not want to work with that client again. But what if you do? What if they are one of your key or significant clients? Worse yet, what if they tell others about the poor experience?

In many ways our professional lives and our personal lives intersect, even if we don’t think they do. It has less to do with what we are doing and more to do with what we, as individuals, stand for. For example, if you go out to dinner and have an outstanding experience you are likely to tell others about it. A horrible experience has the same, albeit, negative affect. We all strive for the first scenario in our professional lives but every so often the second scenario does happen. When it does, is there anything we can do?

The simple answer is yes you can, and you will need to act. When a client is unsatisfied or unhappy there are things that can be done to improve the situation. Ask the client what you can or could have done better; ask them in such a way that they must articulate the answers. Start questions with “Help me understand…” or “From your perspective…”. Allow the client to vent. This is your time to listen and learn. It is imperative that you do not become combative or defensive during the dialogue which can only make the situation worse.

With the information in hand, it is time to create a plan for moving forward. You should consider this, even if you don’t want to work with that client again. If you do not wish to work with them again, consider it a learning experience. If you do want to continue with the relationship, the plan allows the client to understand you heard what the issues were and you are willing to take the steps to improve the situation. When relaying your plan back to the client, use phrases like “I heard you say…” or “Do you feel that by making this change we can…”. Generally when a client believes they have been wronged or that their expectations were not met, the problem stems from poor or inadequate communication. By using the phrases above, it shows you are listening and want to work together to rebuild the relationship.

If you consider the restaurant scenario; if the maître d’ provided a solution to the issues you had at dinner, you are likely to share that with others when you are telling them about your experience.

You still may not want to work with the client again, but your reputation is much less likely to take a hit if you make an effort to recognize the issues and provide a solution, based on the client’s needs, to move forward.

Categories: Teknoids Blogs

Tips Tuesday

slaw - Tue, 01/26/2016 - 07:00

Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on research and writing, practice, and technology.

Research & Writing

That and Which
Neil Guthrie

People have trouble with the correct use of that and which. Writing in 1926, the grammarian H.W. Fowler said the rules are ‘an odd jumble, and plainly show that the language has not been neatly constructed by a master builder’. …

Practice

Do Something Different!
David Bilinsky

This is a new year’s resolution of a different sort. All of us resolve to get healthier, to live better lives and to do better this year than last. How many of us resolve to keep our minds sharp and agile? Here are some suggestions: …

Categories: Teknoids Blogs

My Twitter Digest for 01/24/2016

<CONTENT /> v.5 - Mon, 01/25/2016 - 15:30
Categories: Teknoids Blogs

Providing High Quality Service to Indigenous Clients

slaw - Mon, 01/25/2016 - 11:34

The January 2016 issue of LAWPRO Magazine is devoted to serving Indigenous clients. It features a comprehensive article by LAWPRO’s Nora Rock that provides an overview of the needs, perspectives and expectations of these clients across different areas of law, and examines what is required of lawyers who wish to provide the best service possible.

In Providing high quality service to Indigenous clients Ms. Rock interviewed a number of lawyers of aboriginal background to learn about their experiences and what they recommend to lawyers planning to work in an area that is complex both legally and culturally. Her article provides a historical background to the issues around Aboriginal law, a lot of practical advice, and some questions lawyers should be asking themselves (e.g. ‘am I qualified to serve this person?’). As she puts it, “Lawyers who take on the work of representing Indigenous people have a special opportunity to contribute to the reconciliation process. Whether by assisting Indigenous clients in exercising their rights, by supporting aboriginal economic development, or even just by improving the level of understanding of a client’s perspective within the system, lawyers can support the progress of Indigenous families and communities toward self-determination and a better standard of living”.

Cross posted on AvoidaClaim.com

Categories: Teknoids Blogs

How To Get Business from Other Lawyers

The Lawyerist - Mon, 01/25/2016 - 07:12

Most lawyers could use more business. We spend countless hours marketing to potential clients and referral sources, including other lawyers. But how do you know if another lawyer is worth sending business to, and how do you make yourself a good candidate for getting referrals from other lawyers?

What Other Lawyers Pay Attention To

How we present ourselves to each other is as important as how we present ourselves to potential clients and other professionals. When another lawyer reviews your services, the lens through which you are viewed changes.

Recently, I found myself in the unenviable position of helping a friend find a divorce lawyer. (It’s worth mentioning that I am a divorce lawyer, too, but it was best to outsource this case since I liked his wife and wanted to stay in their children’s lives.) He sent me some candidates who all looked indistinguishable to him; he didn’t know whether he should be looking for experience, price, or something else. But I found the candidates to be vastly different, and one was the obvious choice.

Here is what you should consider when marketing to other lawyers.

Have a Good Website

Related “10 Things the Best Law-Firm Website Designs Have in Common”

I’m not particularly technically savvy, but even I can build a good website. It’s not hard. If you have a website that hasn’t been updated since 1997 or is otherwise dull and uninviting, fix it. It absolutely is as important as everyone’s been telling you it is.

One candidate’s website had so much text I couldn’t decipher his message. He came across as confused and unsure of himself. When I mentioned this to my friend, he said, “His website was like our phone conversation.” Not a good sign.

Your website should tell potential clients about who you are and what services you provide. Make it simple and straightforward.

List Your Skills

Though the divorce would be relatively amicable, my friend would also need the help of a mediator down the road to split assets. One lawyer I reviewed was a mediator and a financial early neutral evaluator. She stood out. I knew this lawyer valued alternative dispute resolution and would know what to look for when the divorce went in that direction.

While my friend didn’t understand what those skills were, I did, and I knew they would make her a better fit for him. Intentionally list your skills and experience, because you never know who is checking out your website. Consider answering these questions to start:

  • How long have you been practicing?
  • Did you cut your teeth in a big firm?
  • Have you always wanted to be a solo lawyer?
Price Matters, But Not in the Way You Think

Related “Lawyer Hourly Rate Calculator”

Don’t be significantly cheaper than other lawyers when you have just as much experience.1

One lawyer, who had been practicing for nearly a decade, was 50 percent cheaper than another lawyer with the same experience. I understood the discrepancy as his not paying attention to the going rate for a lawyer with his experience, or else he lacked the confidence to charge the going rate.

Either way, it was a red flag.

Be Compassionate

Related “Yes, Your Personality Matters to Clients”

My friend emailed a lawyer to ask about a consultation and how the process works. The lawyer’s response was cold, disconnected, and full of legal jargon. If you can’t show compassion when wooing a potential client, you’re certainly not going to show it down the road when things get more difficult, and the client knows that.

While lawyers certainly aren’t therapists, an “I’m sorry about your situation” or “thank you for reaching out to me” can go a long way. I told my friend he should go with someone a little more human. He agreed.

How to Get Noticed by Other Lawyers

How do you ask for business, know the right lawyers to network with, or show you’re a lawyer worthy of their referrals?

Know Who You Are and What You Want “It’s not desperate; it’s essential to running a business.”

The ubiquitous elevator speech is important here. Lawyers meet a lot of other lawyers. If you can’t pitch who you are and what you do in 30 seconds or less, you run the risk of being lost in the shuffle.

Figure out why you are a lawyer. Focus on your practice areas and delve into a niche. Learn how to network. Then, tell other lawyers you want referrals.

It’s not desperate; it’s essential to running a business.

Explain Your Niche in Detail

Maybe you do simple wills but not living trusts. Perhaps you handle uncontested divorces but don’t want to see the inside of a courtroom. If so, knowing lawyers in the same practice area, with different niches, is invaluable. If a client comes to you, but their legal problem is out of your area of expertise, you can send that client to someone you know and trust. Other lawyers will do the same thing.

Connect With Lawyers in Other Practice Areas

Every solo or small firm lawyer needs to know lawyers in different practice areas. Every day, I get calls asking if I do bankruptcy, or collections, or criminal work.

By helping that client get into the right hands, you are delivering a service that will pay off down the road. Plus, if your referral helps you get an “in” with that lawyer, you might get all the calls they field for practice areas outside of their wheelhouse.

Follow Up “If you get a referral call from another lawyer, the absolute least you should do is thank the lawyer.”

While it’s likely some of the prospective clients I have referred to other lawyers have never called, there were certainly a few connections formed that I never heard back on.

That’s just bad business.

If you get a referral call from another lawyer, the absolute least you should do is thank the lawyer. If the referral turns into business, say thank you and send a gift. The referring lawyer could have sent that client to any number of other attorneys.

If you want to keep the relationship, show some gratitude.

Treat the Client Well

If I know you, and I send a client your way, I have professionally vouched for you. If you do well by the client, that makes me look good. If you blow off the client, or you don’t handle the representation well, that’s a professional mark against me. Not only will I not refer anyone to you again, but I may also tell my colleagues not to use you.

Meet Regularly

Most lawyers spend extensive amounts of time networking with other lawyers, other professionals, and prospective clients. It’s hard to be memorable. But networking is like dating: to develop a relationship, you need to get together more than once.

The first meeting is usually about who you are and what you do. Make the second meeting a brainstorming session on how you can work with the same clients. Meet again to share interesting articles or events you both have an interest in. Invite them to events and networking functions. Ask who their best referral partners are, and send those professionals their way.

If You are the Lawyer Sending Referrals

Related “Don’t Refer Bad Cases or Clients”

If you are not sure whether a referral is a good fit, check with the lawyer first. That gives you an opportunity to learn more about the lawyer, vet the client’s problem, and let the lawyer know you are trying to refer business. And it doesn’t leave the client in a bad spot if the lawyer is not the right fit, too busy, or otherwise uninterested.

Getting referrals from other lawyers can be difficult: sometimes our practice areas overlap, sometimes we’re intimidated to ask for referrals from like professionals. But it’s all about knowing who you are, asking for what you want, and developing relationships.

Featured image: “Business people shaking hands, finishing up a meeting” from Shutterstock.

  1. Unless you are trying to close the access to justice gap, in which case you should probably mention that. 

How To Get Business from Other Lawyers was originally published on Lawyerist.com.

Categories: Teknoids Blogs

Recent Egregious Data Breaches: How They Happened

slaw - Mon, 01/25/2016 - 07:00

We should be grateful for other peoples’ data breaches – they help us to improve our own security. In our breach-a-day world, we seem to have more data breaches than ever. They come fast and furious – rare is the day when we don’t hear of one or more breaches on the evening news or through online media. Attack vectors change constantly – those of us in information security have a deep sense of humility in the face of constant changes in threats as well as technology, policies and training to defend against those threats.

Herewith, a few of the famous data breaches of 2015 (and one from 2014) with lessons to be learned from how they happened.

Office of Personnel Management

This was probably the most controversial breach of 2015. In May, the federal Office of Personnel Management (OPM) reported a breach affecting 4.2 million current and former federal employees. A few days later, it revealed a second breach (lesson here: don’t speak too quickly about data breach specifics). The second breach brought the number impacted to 22 million people who had applied for government jobs or security clearances. Data from some applicants’ family members was also compromised. The data taken included names, addresses, names of relatives, employment histories and health care histories. There was a lot of talk about the fact that 5.6 million digital fingerprints were compromised, giving rise to concern about the security of biometrics. Members of law enforcement, the intelligence community and the federal court system were all impacted. Some of the data included information on peoples’ sex lives, drug and alcohol problems and debts, all of which could be used for blackmail.

The press confirmed through multiple sources that the government had concluded that China was behind the hack. But it declined to overtly accuse China because revealing technical details of how they attributed the breach to China would tip off hackers to the ways that American intelligence agencies track them.

Computer security firm CrowdStrike, which has close ties to U.S. law enforcement, said it had traced the breach to hackers it said were “affiliated with the Chinese government,” using forensic information from the hack provided by the government. The Director of OPM resigned.

The breach went undetected for 343 days – it was ultimately discovered when anomalous SSL traffic and a decryption tool were observed within the network.

Though the U.S. has not talked publicly about how the breach happened, U.S. Department of Homeland Security official Andy Ozment testified that the attackers had gained valid user credentials to the systems they were attacking, likely through social engineering.

VTech Holdiings

This Hong Kong digital company was the victim of one of the year’s biggest hacks in November when its Learning Lodge database was compromised, permitting hackers to get adults’ profile information, e-mail addresses, passwords, chat logs and audio files – and the names, home addresses, first names and birthdates of millions of children and their photographs. Some of the audio recordings were of children’s voices from VTech’s Kid Connect, a service that allows parents and kids to chat via a mobile phone app and a VTech tablet. The release of the information of children was particularly disturbing and garnered a lot of publicity.

So how did the information of over 6 million people get exposed? According to security researchers, the hacker used a SQL injection to gain root access to VTech’s web and database servers. Users’ passwords weren’t properly scrambled and hashed. The MD5 algorithm that VTech used had been known to be vulnerable for a decade or more. Worse yet, the company stored customers’ security questions and answers in plain text, a clear security no-no. The reported hacker said that the entire purpose of the hack was to expose the security flaws and said he would not use or publish the data.

Besides mishandling the data from a security perspective, one wonders why the company needed to store this much data to fulfill its business purposes. It is a common problem – storing data one does not need, which itself creates a potential vulnerability.

Anthem

In February, heath insurer Anthem said that hackers had accessed its servers and downloaded the personal data of employees and those who were insured by Anthem. Even those who were not Anthem customers may have been impacted because Anthem handles paperwork for smaller insurers. Data stolen included names, addresses, birthdates, Social Security numbers, and employment information, including salaries. 79 million records were compromised and dumped online – this was the largest data breach of 2015.

This breach occurred because the hackers had gained access to the login credentials of employees with system access. How? Reportedly, the credentials were obtained through a watering hole attack. A watering hole attack is a security exploit in which the attacker seeks to compromise a specific group of end users by infecting websites that members of the group are known to visit. The goal is to infect a targeted user’s computer and gain access to the network at the target’s place of employment.

In this case the attackers created a bogus domain name “we11point.com” (based on Wellpoint, the former name of Anthem). In this cases, the hackers set up subdomains which were designed to mimic real services such as human resources, a VPN and Citrix server. By then sending phishing e-mails, users may have been lured to infected websites and entered their log-in credentials. A number of security companies believe the hack came from Deep Panda, a Chinese-based hacking group.

The breach was undetected for nine months and was discovered when a systems administrator noticed that a legitimate account was querying internal databases but without the legitimate user’s knowledge.

There are similarities between this attack and the breach of Premera Blue Cross in 2015, impacting 11 million people – are they related? Impossible to say, but another bogus domain name “prennera.com” was discovered in the Anthem investigation.

Pentagon

In July, alleged Russian hackers hacked an unclassified e-mail server of the Pentagon. U.S. officials announced that Russia had launched a “sophisticated cyberattack” against the Pentagon’s Joint Staff unclassified e-mail system. The officials added that the cyber-attack compromised data belonging to 4,000 military and civilian personnel who worked for the Joint Chiefs of Staff.

As the attack was later described a “spear phishing attack”, it doesn’t on the face of it sound all that sophisticated. However, Department of Defense officials continued to call it the “most sophisticated” cyberbreach in U.S. military history. Officials spent 10 days scrubbing the system and creating mock hacking scenarios before giving military personnel access to it again. The spear phishing attack targeted the personal information of scores of users. What may have made this attack sophisticated is that the hackers used “an automated system rapidly gathered massive amounts of data and within a minutes distributed all the information to thousands of accounts on the Internet.” Encrypted social media accounts were used to coordinate the attack. If true, that might qualify this attack for the adjective “sophisticated.”

Ashley Madison

The Ashley Madison dating site breach impacted 37 million people and gave high-value entertainment fodder to pundits everywhere. This was an unusual hack, in that it seemed to be rooted in the moral convictions of the hackers, called The Impact Team. They wanted the site, whose tagline is “Life is short. Have an affair,” to take the site down. They also wanted Avid Life Media’s “EstablishedMen.com” site taken down. When the site’s owner refused to take the sites down, the data was made public in spurts.

The breach was reported in July, and data compromised included e-mails, names, home addresses, sexual fantasies and credit card information. All of the user data released on August 18, 2015. More data (including some of the CEO’s emails) was released on August 20, 2015. The release included data from customers who had earlier paid a $19 fee to Ashley Madison to allegedly have their data deleted. It turned out to be a boon to divorce lawyers everywhere. No doubt many members were shocked to find out that most of the women on the site were “bots” – employees who pretended an interest in an affair as part of inducing additional payments to Ashley Madison – and of course users had no clue that they had agreed to the use of bots when they accepted the terms of service.

The data was made vulnerable by a bad MD5 hash implementation. We are not sure how the hack actually happened but The Impact Team itself said this: “Nobody was watching. No security. Only thing was segmented network. You could use Pass1234 from the internet to VPN to root on all servers.”

In an interesting side note, as of January 1, 2016 Ashley Madison’s membership has supposedly increased by more than 4 million since the breach. Go figure.

Categories: Teknoids Blogs