Flagship Legal Tech Institute CLE: MS Word for Legal Work

Due to popular demand, the Harris County Law Library Legal Tech Institute is proud to present its flagship hands-on training course tomorrow, August 30, at 2:00pm, in the dynamic setting of the County Attorney’s Office Conference Center. MS Word for Legal Work will be presented live by law librarians Elizabeth Bolles and Heather Holmes. Course participants will learn the ins and outs of America’s most popular word processing software. Key topics will include efile formatting, creating a tables of authorities, page and paragraph formatting, and protecting client data through simple metadata management. Each attendee will be provided a laptop for use during the class, and will receive personalized assistance. This session has been expanded so that law offices can send multiple attorneys and paralegals at once. Register through the Legal Tech Institute website.

Torn from the Headlines -- How Tech is Changing Law

In recent weeks, stories about tech in the practice of law have been filling our news feeds. Our last Tech Tuesday blog post focused on high profile failures and flubs. Today's stories reveal more productive uses of technology while demonstrating how the everyday online communication tools we now use are transforming the practice of law. 

Lawyers are employing technology in novel ways to serve process and consult with colleagues. As described below, the authorities that govern these developments -- legislation, court rules, case law, and ethics opinions -- are (slowly) evolving as well.  Twitter and Facebook are at center stage in these new approaches, as is digital communication itself. From the social media tools we use to the new literacy we've developed (e.g., abbreviations, emoticons, emoji, Bitmoji, stickers, memes, and more), tech is changing the law. 

DNC Serves Subpoena on Wikileaks via Twitter

Earlier this month, a law firm representing the Democratic National Convention used Twitter to serve legal documents on WikiLeaks, an international nonprofit organization that facilitates the release of classified information, obtained from anonymous sources, via its website. Aside from the high profile parties to the case and the controversial claims it makes, the newsworthy aspect of this story, particularly for those in the legal field, is that the subpoena was served with a tweet.  According to the Federal Rules of Civil Procedure, a court may serve an individual in another country through a number of channels, and although service by social media is not addressed specifically, Rule 4(f)(3) does allow for service "by other means not prohibited by international agreement, as the court orders." The Texas Rules of Civil Procedure include a similar provision. Rule 106(b)(2) states that a court may authorize service "in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit."

This may be a first for Twitter, but Facebook has been used a number of times to legally notify a hard-to-locate party. In a 2015 New York divorce case, a woman was permitted to serve her estranged husband through Facebook. A New Jersey court relied on that decision to allow the same method of legal notice in a similar case later that year.

Routine use of social media as an alternative method of service is still a topic of debate, but plenty of digital ink has been spilled discussing its benefits and risks. In 2013, a bill was introduced in the Texas legislature to allow substituted service through social media websites, but the bill was never referred to a committee, and the topic hasn't been addressed since. 

Texas Lawyers May Seek Input from Colleagues via Facebook

Just weeks ago, the State Bar of Texas Professional Ethics Committee considered this question: Can lawyers use social media to seek advice from other attorneys without violating the Texas Disciplinary Rules of Professional Conduct? According to the Committee, the answer is a qualified Yes. Attorneys may consult with their lawyer colleagues and seek their professional advice regarding client-related issues in online forums if and only if they honor their duty of confidentiality and respect the attorney-client privilege. The best source for further exploration of this topic is, of course, the opinion itself along with this report from the Texas Lawyer which provides an excellent overview of the State Bar's newly sanctioned activity.

Federal Court Uses Poop Emoji in a Published Opinion

The Seventh Circuit Court of Appeals recently published an opinion that included the poop emoji. There's almost nothing worthwhile to say about its appearance in this opinion except to recognize it as a historic first. To be fair, the poop emoji appeared as part of a quote from a message shared via Facebook. It was submitted as evidence in an employment discrimination case that ultimately hinged on the content of the quoted message. As it turns out, the use of emoji in employment suits has been discussed before. Legal scholars have also weighed in about emoji and the law and emoji as evidence, topics which are explored in the articles linked below. 

• Emoji as Language and Their Place Outside American Copyright Law (NYU Journal of Property & Entertainment Law)
• The Emoji Factor: Humanizing the Emerging Law of Digital Speech (Tennessee Law Review)
• Your Clients Use of Emoji: It Matters (Ingham County Bar Association BRIEFS)

Special Event: Expanded "MS Word for Legal Work" Hands-on Legal Tech Training

Join us as we offer our flagship hands-on training - MS Word for Legal Work - for an expanded audience on Thursday, Aug. 30, at 2pm. Learn the skills you need to draft documents more efficiently on the world's leading word processing software. Texas attorneys can earn 1.0 hour of CLE credit. Register today!

Ethics of Storing and Sharing Information in the Cloud

Fluffy clouds over happy trees.

In yesterday's Tech Tuesday blog post, we looked at news stories about the consequences of not knowing how to use basic technology. Keeping pace with current events, we draw your attention to another example from Paul Manafort's woe. While out on bail and awaiting trial on his federal conspiracy and money-laundering charges, Mr. Manafort was further indicted for obstructing justice and conspiring to do so by influencing the testimony of potential witnesses. He was caught using the encrypted messaging app WhatsApp in order to secretly communicate with people he expected to testify in his case. Unintentionally documenting his deception, he accidentally automatically backed up those WhatsApp communications to his iCloud account, providing an access point for authorities to obtain the messages. The end-to-end encryption capabilities of WhatsApp were rendered pointless when he uploaded an unencrypted copy of the transcript to the cloud.

"The Cloud" refers to shared storage and system resources made commercially available through the magic of the Internet. Essentially, rather than using your own space and materials to store information, either electronically or in physical files, you can store your information using someone else's space and materials. But unlike the old days when your file boxes might be hauled off in a truck to a warehouse where you could request to have them pulled on demand and driven back to your office, information stored in the cloud is available immediately, 24/7, as long you have Internet access and your login credentials. 

This has obvious appeal for lawyers, especially attorneys in small practices, who in the past were forced to dedicate a substantial portion of office space to document retention. Still, the ethical implications of simply passing client materials off to the control of a third part gives pause. As state bar associations weigh in, cloud computing is an increasingly legitimate way to retain attorney work product, but lawyers must know how to vet cloud services and otherwise hold up their end of the bargain.

A great way to learn more, and to earn free Texas Ethics CLE credit from the comfort of your own home, is to watch "The Ethics of Cloud Computing" as part of the Harris County Law Library Legal Tech Institute "Learn on Demand" series. Check it out today!

Torn from the Headlines -- Tech Flubs in the News

In recent months, stories about the use -- or misuse -- of technology have been filling social media news feeds. Some of these flubs, committed by those unfamiliar with basic technology, have caused great embarrassment; public ridicule by news media, Twitter trolls, and Facebook users has not been the worst outcome, however, as the examples here will show. These cautionary tales about the importance of developing basic tech competency reinforce the growing imperative for lawyers to stay current in tech.

Paul Manafort’s Trail of Converted Documents

In an attempt to misrepresent the profits and losses of his company, President Trump's former campaign manager, Paul Manafort, allegedly emailed falsified financial documents to his assistant, Rick Gates, thereby creating an incriminating paper trail that resulted in Mr. Manafort's indictment on February 22, 2018.  Details of his document-doctoring efforts and his motivation for manipulating his company’s earnings have been covered extensively in any number of news publications, but the important takeaway for those of us in the real world is this: knowing the benefits and risks of using technology is a must. Mr. Manafort's lack of sophistication in using basic tech undoubtedly contributed to his legal trouble because he himself unwittingly preserved the digital evidence of his alleged crimes. Specific proof that he and Mr. Gates falsified financial documents is noted in the indictment as follows:  

“Manafort emailed Gates a .pdf version of the real 2016 DMI P&L, which showed a loss of more than $600,000. Gates converted that .pdf into a “Word” document so that it could be edited, which Gates sent back to Manafort. Manafort altered that “Word” document by adding more than $3.5 million in income. He then sent this falsified P&L to Gates and asked that the “Word” document be converted back to a .pdf, which Gates did and returned to Manafort. Manafort then sent the falsified 2016 DMI P&L .pdf to Lender D.”

Kris Kobach’s Metadata Oversight

Kansas Secretary of State, Kris Kobach, has built his reputation on ferreting out fraud at the polls and toughening voter ID laws. The enhanced voter ID laws that Kobach promotes as the solution to voter fraud deny new Kansans the right to vote unless they can produce citizenship documents. The ACLU, describing the ID requirement as arbitrary and discriminatory, brought an action against the law that Kobach is now fighting in court. In the resulting trial, Kobach filed in federal court a document in which he forgot to delete his office’s editorial note (saying that a particular argument was “PROBABLY NOT WORTH ARGUING”) and failed to provide a citation for a separate argument. (See p. 62 of the document here.) A revised version of the document was subsequently submitted but not before several news outlets picked up the story of his blunder. The key takeaway here? Be sure to review your work carefully before filing it in court. If you need to inspect your document before sharing it with another party, use the Microsoft Word Document Inspector, which allows you to strip your documents of any hidden metadata. 

Broward County’s Redaction Error

Following the tragic shooting at Marjory Stoneman Douglas High School in Broward County, Florida on February 14, 2018, the Broward public school system commissioned a report to investigate the therapeutic services provided by the school district for the shooter, Nikolas Cruz. Broward County Circuit Judge Elizabeth Scherer ordered that the report be released to the public. To protect the shooter’s privacy rights, nearly two-thirds of the content was to be redacted. However, the district failed to use a proper redaction method, allowing a more savvy user to cut and paste the text into another document. The “redacted” text was made visible, revealing a detailed account of the actions taken by the school district to provide services for Nikolas Cruz. Specific information about what emerged from the report is available here. Using proper redaction software such as Adobe Pro or Nitro or any number of other redaction programs is a more effective and reliable way to ensure that  the sensitive data contained in your documents is protected.

These are just a few examples of how technology errors can have serious repercussions. Visit the blog again tomorrow for an additional tech flub, again committed by Paul Manafort, that illustrates the importance of protecting the confidential data you store and share on the cloud.