David Bilinsky, a friend and colleague of Sensei, authors the blog Thoughtful Legal Management. He recently did a post where he asked his thought leader friends their predictions of what is in store for legal technology in 2019. Sharon Nelson and John Simek were among those thought leaders and here are their predictions…
Blockchain & Smart contracts:
• Bitcoin became a household name over the last year as front-page news reports tracked its meteoric rise and analysts speculated whether the “Bitcoin bubble” was about to burst. The recent roller-coaster ride in bitcoin value, peaking at an all-time high of just under $20,000 per bitcoin, demonstrates that digital currencies have real-world value. Unsurprisingly, the financial and legal sectors are paying close attention because cryptocurrencies now are replacing some bank functions.
• The advent of Bitcoin and the blockchain technology that powers it heralds a new period of disruption — and opportunity — for the legal profession. Lawyers will need to become familiar with these technologies work in order to remain competitive as the practice of law continues to evolve. We have seen great strides in the use of smart contracts based on blockchain this year and that trend will certainly continue.
Online Justice/Online Dispute Resolution/Access to Justice:
• In August 2018, the American Bar Association released a report titled, “Access to Justice Commissions: Increasing Effectiveness Through Adequate Staffing and Funding,” available at https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_atj_commission_report.authcheckdam.pdf. The report’s major findings and recommendations included:
• Expand the stakeholders in the A2J effort beyond the judicial and legal community to include participants from business, civic, social services, and community groups;
• Adequate and effective staffing is necessary to provide A2J Commissions with support, continuity, communications, and continued momentum;
• Leadership provided by the Conference of Chief Justices and individual Chief Justices in expanding access to justice cannot be overstated; and
• Private philanthropy through contributions from private foundations have played a key role in expanding A2J and accessing such financial support should be continued and encouraged.
• Our own state of Virginia is studying and adopting some of these recommendations and we expect many other states to do the same.
Cybersecurity:
• Since 2016, many solo/small/mid-sized firms began adhering to the Center for Internet Security’s (CIS) Controls. In March 2018, CIS released CIS Controls Version 7, the newest (and free) iteration of its original 20 important cybersecurity recommendations. The CIS Controls are a prioritized set of actions any organization can take to improve their cybersecurity posture.
• The controls are now separated into three categories: basic, foundational, and organizational:
• Basic (CIS Controls 1–6): These are key controls which should be implemented in every organization for essential cyber defense readiness.
• Foundational (CIS Controls 7–16): The next step up from basic – these technical best practices provide clear security benefits and are a smart move for any organization to implement.
• Organizational (CIS Controls 17–20): These controls are different in character from 1–16; while they have many technical elements, CIS Controls 17–20 are more focused on people and processes involved in cybersecurity.
• The new CIS Controls, which may be found at https://www.cisecurity.org/controls/, align better with the NIST Cybersecurity Framework and map directly to it. Think of the NIST framework as the “what” and to the CIS Controls as the “how.” Together, these resources are concise and easily understood. Both are valuable free resources and we expect an increasing number of law firms to work with both of these standards to enhance their security posture in 2019…
See all of the predictions here.
Two Recent ABA Ethics Opinions: More Law Firms Relying on the Cloud
Excerpt: Lawyers must follow the duty of communication required by Rule 1.4 of the ABA Model Rules of Professional Conduct, which requires lawyers to communicate regularly with clients and to keep clients reasonably apprised of their cases. Following a disaster, a lawyer must evaluate available methods to maintain communication with clients. The opinion instructs that lawyers should keep electronic lists of current clients in a manner that is “easily accessible.” Most lawyers have taken that to mean that the lists should be stored in the cloud so they can access them from an internet connection anywhere.
Lawyers should pay attention to the duty of competency, Rule 1.1, which includes a technology clause that requires lawyers to consider the benefits and risks of relevant technology. Because a disaster can destroy lawyers’ paper files, lawyers “must evaluate in advance storing files electronically” so that they can access those files after a disaster. Storing client files through cloud technology requires lawyers to consider confidentiality obligations. Again, the opinion has been read by lawyers to encourage cloud storage.
With a little due diligence, this should not present much of a problem. We constantly encourage lawyers to keep backups in the cloud. It is prudent to have a local backup, but the cloud provides additional security. As we learned from Katrina, having a backup at the office and one at home a mile away is not sufficiently protecting confidential data.
Sensei Article Featured in ABA Law Practice Magazine
If you look at the “Hot Buttons” column in the November/December 2018 issue of the ABA’s Law Practice magazine, you will find the article “On the Road Again: Secure Mobile Computing” written by Sensei’s Sharon Nelson and John Simek. Law Practice magazine is a bi-monthly publication of the American Bar Association’s Law Practice Division.
Excerpt: Lawyers are more mobile than they have ever been, but secure mobile computing remains an elusive goal. Wow, have things really changed. Technology has changed with remarkable speed, as have security threats and the “bad actors” who want your confidential data. We connect to our law firm networks from all sorts of wireless networks, at hotels, conference centers, coffee shops, the homes of our friends – even from airplanes now. Many of those connections are free, and many are fraught with peril.
It’s not just about traveling domestically either. It’s a brave new world, and crossing the border subjects us to searches of our electronic devices. Lawyers need to be aware of the new rules and how they can continue to keep client confidential information out of the hands of unauthorized people.
A great starting point is the National Cybersecurity and Communication Integration Center tips for secure mobile computing while traveling. There are tips for Holiday Traveling with Personal Internet-Enabled Devices, Cybersecurity for Electronic Devices and International Mobile Safety.
Sharon Nelson Authors Article for Virginia Lawyer
Recently, Sensei’s Sharon Nelson wrote “Rule of Law Award Given to Michael W. Smith and the Civility Award Presented to the Hon. Jane Marum Roush” for the Virginia Lawyer. Virginia Lawyer is the official publication of the Virginia State Bar and is distributed to lawyers, judges, general subscribers, law libraries, other state bar associations, and the media.
Excerpt: On October 15th, the Virginia Holocaust Museum (VHM) and the Virginia Law Foundation co-hosted a luncheon at which the 2018 Rule of Law Award and Civility in Law Award were given to Michael W. Smith of Christian Barton and the Honorable Jane Marum Roush (ret).
A central lesson of the Holocaust is the criticality of the Rule of Law in the preservation of civil societies. This program, established by the VHM’s Nuremberg Courtroom Committee and the Virginia Law Foundation, honors individuals whose life and work emulate the highest ideals enshrined in the principals of the Nuremberg Military Tribunal and later the International Court of Justice.
