Technology Attorneys

Best Practices of a Contract with Your Web Developer

Now more than ever, we live in a world where digitization has made web and application development essential aspects of just about everything: education, business, health and even law, among other fields.

Due to this, owning a web presence is just as important, if not more, as owning a physical one. This is why a lot of web/applications are contracted out to developers in order to ensure that the enterprise keeps up with the trend of digitization.

Independent Contractor Agreements are often part and parcel of web/application development. Or, your developer may have their own agreement that they’d like you to sign.  Either way, this legal document aims to ensure that your expectations and those of the web/application developer are fully captured.  As well, as any future rights in your intellectual property.

To get a well-written contract, you need to understand the best practices associated with it. Read on to find out what they are.

Create Milestones

Avoid handing over all the requirements to the web/app developer and letting them go at their own pace. Create milestones for the total lifecycle of the project. It helps with tracking and modularity. You can get a bird’s eye view of the functional parts of your project so you can easily identify issues and possibilities in the course of the development process.

Creating milestones can also help you tie the milestones with payment.  At each milestone, there is a stop of sorts where you evaluate the progress.  If you are satisfied, payment is made and then off to the next phase!

Pay attention to security.

It would be best if you established a secure means of transferring information and a level of access control your sensitive data. Please pay attention to the security measures and protocols that the web/application developer uses and how they plan on managing your data. Ensure that they understand your security concerns, and they possess the capability to handle them.

Proper Scope and Documentation

Since you will be working with a third-party ensure that there is proper scope and documentation. This prevents misinformation that can derail the project. Documenting your scope also ensures that there is clarity and transparency in the discussions. It also provides a reference point during and after the web/application development process has been completed.

Proper documentation will also ensure that you have the flexibility to move to other vendors or add anything additional to your product without needing a lot of knowledge transfer.

By setting out clear goals and scope, you reduce the amount of discussions around what is included in the engagement and what would be considered out of scope for the project.

Outlining clear expectations between you and your developer.

Fix the Money Matters

 This is where you decide on the financial aspect of the contract. Be clear on what you are willing to pay for your expectations. Determine events that might trigger payments like milestones. Discuss the impact on out of scope requirements, or issues that crop up unexpectedly. 

These out of scope or change orders might come with an hourly rate or a decided fixed rate as you move through the project.

Establish Clear Communication Channels

This is essential because proper communication channels facilitate understanding between parties, eliminates delays and increases the chances of creating a great project. Clear communication channels also ensure that you are in the loop about the process and that you can actively participate at all stages in the process.

Generally, this is called a PMO or a project management office which can be critical in larger projects where points of escalation may be needed as well as frequent meetings between stakeholders. 

Make Sure You Own it!

Did you know, that intellectual property belongs to the person who CREATES it?  NOT the person who bought it.  It is a common misconception that if you bought something that you own it.

You need to make sure that the contract clearly states that any intellectual property is assigned to you. 

Here, wording can get tricky between ‘work made for hire’ (and this isn’t self-explanatory, even I look up the statute every now and again to refresh my memory) and an assignment.

Here is a tip:  if you are getting a low quote than what you thought, it is probably because you are not getting the intellectual property.

Which means, you will not be able to take it anywhere else, to anyone else or in simple terms, do what you want with your website or other project deliverables.

Takeaway

Outsourcing your web/application need is imperative because of the benefits attached. Understanding the best practices involved in the contracting of your web/application development will help you go about it the right way.

 

Rather than do it yourself, why not engage an attorney to help you negotiate the right terms of the agreement.

Consult with Us on Your Next Contract

We have been servicing the technology industry for over 15 years

Recent Rise of Scams

As the current pandemic rages on, more and more companies are adopting remote working models and hackers trying to bank on consumer’s fears are churning out scams more than ever. Remote working offers many benefits to businesses but can also pose certain challenges, including security threats. While some businesses have a good enough cyber and network security system in place, many are not aware of the severe risks involved in connecting remotely. In this article, we shall be discussing some security concerns of companies offering remote work and measures to be taken to curb the threats.

 

Phishing Scams

 

Phishing attacks are one of the most common cybersecurity threats of working remotely and are widely recognized as the top cause of data breaches. The World Health Organization, Homeland Security, Global security centers, and the U.S. Secret Service have all warned of coronavirus-related phishing scams. Hackers exploit the coronavirus to send seemingly legitimate, deceptive emails with malicious links and attachments. Once the employee clicks on this malicious link, their system is instantly infected, and the hacker gains access to the employer’s device. Sometimes, the employees are taken to realistic websites where information about their credentials are requested. Many comply, comprising their logins. 

 

The solutions are not farfetched. Employees should be regularly reminded that legitimate groups do not request personal information. Also, they should verify any hyperlink before clicking on it and normalize pausing before responding. They should beware of any email insisting on immediate action, generic greetings or an unfamiliar sender are other markers. While bad spelling and grammar usually indicate phishing attacks, properly written communique can be just as dangerous.

 

Insecure Devices 

 

Often, the personal devices of employees are not secure and can pose the risk of unauthorized access to organization’s data. Hence, it is recommended that personal devices should be vetted by employer IT prior to being used for company work. Better still, the organization can ensure that employees are restricted to using only company devices. These devices meet the minimal security benchmark, their hardware is designed to work within a corporate network, and the software has been optimized to cater to the specific needs of the individual user within the company environment. 

 

Secure Networks

 

Home networks and free WiFi available at cafes, libraries, or other public places carry a steep security price tag. In other words, these networks have weaker protocols, unencrypted traffic, and are insecure. Cybercriminals target such environments, leaving cyber mines that activate when a user of interest uses the network. Hence, remote workers should ensure that they use secure network traffic. If the employee didn’t have access to secure WiFi, the company should provide Hotspot. 

 

Weak or Insecure Passwords 

 

Passwords are mandatory security protocols that protect the gateway to data and information. However, they become less relevant and incredibly easy to crack when they are simple or weak. Weak passwords are often short and guessable. Furthermore, if an insecure password is used across several platforms, it allows hackers to gain unauthorized access to multiple accounts in a very short period of time.

 

Conclusion

 

Finally, if you notice new programs that were not previously installed, your computer slowing down, strange pop-up ads on your screen, or you lose control of your mouse or keyboard, then your device might be under attack from hackers. Be sure to notify your company’s IT administrator so they can immediately mitigate risk. These threats can have damaging impacts on businesses. Therefore, employers must rapidly ensure the security of every device or system being used. 

Work From Home Policies

In the past, work from home was rare and unpopular because many employers believed their workforce could be easily distracted at home. However, the pandemic has fast forwarded this practice to almost become the norm in some sectors. Employers have begun to see the many benefits of the work from home model, which includes increased productivity and efficiency, protected public health (especially with the outbreak of Covid19), less need for office space, and so on.

 

Also, the enabling technologies for implementing work from home are increasingly more available and easily accessible. Employer’s now more than ever must create work from home policies to ensure productivity and prevent lapses in workflows across the various levels of operations.  It is also imperative to discuss the various ways the employee must comply with policy to ensure that company data is secure and uncompromised. 

 

Determine which roles can be done remotely

 

It is crucial to know from the onset which roles can shift seamlessly from the office to the home because some functions within the organization demand physical presence. For instance, a forklift operator cannot function from home, whereas a software developer can easily perform their duties from anywhere via a laptop and internet connection. Also, investigate those roles that are office-bound, or warehouse-bound and find out what functions can be performed remotely by those in these roles. 

 

Decide what rules and company policies should be followed

 

It is critical for employers to clarify which rules, regulations, and policies of the company still apply to work from home and what is new for those that work from home. Because these employees will want to know exactly what is expected of them in this regard. Usually, all standard company policies and resources such as code of ethics, attendance policy, professional code of conduct, sick leave, and the confidential agreement still apply. 

 

Establishing metrics to measure the success of your remote model policy

 

Metrics and goals should always be a part of day to day work no matter where your employee has their ‘office’.  So, I won’t get into that here because I also feel that there is a level of maturity and responsibility that goes with work from home.  It goes towards the concept of Results Oriented Work Environment; ROWE, that was introduced a few years ago.

 

Items to Consider in Updating Policies:

 

Technology:  Employees need to make sure they have the right technology to complete their tasks.  If there is a work from home budget allowance, specify what kind of technology they should have.  Often, cheap comes with poor security so you should allow for software, subscriptions and hardware in that budget that have security as a priority instead of free software that leaves your data vulnerable.  Also, make sure that they have their own secure, Wi-Fi connection, using a free or mobile hotspot might not give the security or speed your employee needs.  This is particularly important for REMOTE workers since they are mobile, their internet connection may change from day to day. 

 

Access to work systems.  We have come along way since Citrix Remote Access and I still cringe to think about how S L O W Citrix was.  But happily, with the advent of Dropbox, GDrive and Office 365.  Enterprise solutions allow you to control how your employees access company data.  Again, this is where free can get you in trouble.  An enterprise solution will also allow you to REMOTE WIPE a device if (or should I say when) your employee misplaces a laptop or phone.  Or, if you need to terminate employment.

 

Tech support.  Pro-actively offer the assistance of your internal tech support to ensure that the technology and hardware that your employee is using is fast, effective and secure.  This is not the time for self-help measures.

 

Client confidentiality.  While security and connectivity are important, consider that now, your employee may not have a designated workspace at home.  Important documents maybe be available for anyone to read if their workspace is, let us say, the kitchen table.  BE CLEAR that all documents should be securely held where third parties cannot view or access.  Or, that no printing is allowed or encouraged.  After all, haven’t we come so far with paperless offices?

 

 Communication.  Your Policies should also include HOW you want your employees to communicate with clients and internally.  Data retention policies need to be adhered to regardless of medium.  Encourage the use of internal tools like Microsoft Teams, or Google Meet to control the data retention and security.  The use of texts is now a normal day to day work occurrence but your employee’s should be aware that even that should be subject to data policies and act accordingly.  A best practice should be communicated to your employees.  

 

It is important to be clear about how and where you want your employees to work remotely or from home. 

 

The goal here is to discuss security and policy that will help your company stay compliant with IT security and other regulations such as privacy.  And moreso, how education is so important that your employee understand the why behind these policies.

 

Conclusion

 

 

A work from home policy is essentially an agreement that outlines everything needed to allow employees to work from home without causing any disruption to company goals and procedures, and these tips will help employers do just that.  While the above are general guidelines, every company has specific needs.  Talk to us today to help you update your policy!

Work From Home vs Remote Work

Remote Work and Work From Home are not the same...

Work from home is remote work BUT remote work is NOT work from home.  Understanding the difference and implementing compliance and policy will make all the difference in your business.  The current pandemic has forced the hands of many businesses to adopt these, what have been in the past, unorthodox work methods.

 

Many people understand remote work as working from home, and they are not wrong per se. However, remote work has a broader meaning. It is work that doesn’t take place in a traditional office—in other words; a remote job means you won’t be driving to the same physical business or office building Monday through Friday and staying there for the duration of an eight-hour shift. Keep in mind that a non-traditional workplace can be anywhere with high-speed internet access like any co-working space or even a coffee shop. While work from home is a subgroup of remote working environments, there are huge differences between the two options, as you will get to understand in this article.

 

Work from Home 

 

Working from home means that you have a full-time job and flexibilities that allow you to work from home when needed. For some employees, it means being able to balance the demands of others who depend on your help with the demands of paid work. This practice has become more accepted as organizations continue to evolve and understand the ever-changing needs of their employees, especially when it comes to schedules. For instance, an employee may have a medical appointment on a particular day, and it’s more productive for her to work from home if the commute from her home to the doctors is just a short distance away. 

 

However, if you choose to work from home, you must put systems in place to be successful—things like a dedicated home office space, a defined work schedule, and clear boundaries for friends and family. No matter how flexible your schedule is, you need to plan ahead and know when you’re going to work. After these arrangements are established, your home can become an ideal workplace, even while juggling domestic tasks.

 

Remote Work

 

Remote working, on the other hand, is synonymous with a digital nomad, a person who can work from any place in the world, with his/her digital devices and access to a fast internet connection. As a remote worker, you can connect with your employer or teams digitally while seated at Café or sunbathing in a resort halfway across the world. Also, a remote worker may never have to meet their employers physically, due to their variable location and most likely won’t be required to attend company events or training in person. However, a remote worker must always be reachable and available for online meetings in case vital information is needed to be passed or for necessary discussions. 

 

Of course, remote working also means that you don’t have a set office time, and your schedule and hours remain yours to develop, and you can move from remote workplace to remote workplace as you see fit. Organizations often employ the services of remote workers, who already have good working experience, for smaller projects since little to no training is required. 

 

While work-from-home opportunities entail commuting from your bedroom to your office—pants optional and pajamas welcome—working remotely outside the home has more ‘x’ factors built in.  Working from home means that your environment is static.  Same internet, same desk, same space to keep your laptop. Working remotely involves traveling from your home to wherever you choose to work and being in a public or semi-public environment.  This can pose many risks since internet connection can be compromised, human error increases exponentially to leave your technology unsecure or even lost!

 

This being said, it is extremely important that while the trend may be work from home that can blur to remote work, you, as a business, need to ensure that you have the right technology, practices, protocols and security in place to ensure that your employee’s choice of venue does NOT leave your company vulnerable.

 

H1B Transfer: Layoffs and Getting a New Employer

H1B layoffs greatly disrupt the plans of foreign nationals who work in the U.S. with an H1B visa. In the past, there was no grace period for H-1B workers to find new employment or even to sell or otherwise dispose of personal property. However, with new regulations that took effect on January 17, 2017, foreigners who found themselves in this situation were given a 60 day grace period after their employment is terminated.

How to Go About A H1B Transfer

In an even of H1B layoff, here are some steps to take:

  • Relax: Try as much as possible, not to panic. After all, you still have a valid visa, and your stay is still legal. Although you are out of a job, your stay cannot be termed “unlawful presence.” This is because the date on your I-94 document rules the question of “unlawful presence” for purposes of the three and 10-year bars. So since the date on your I-94 document has not lapsed, then you are not accruing unlawful presence.
  • Hunt for A Job: This is key. Your job search must start as soon as theH1B layoff occurs. Make job hunting a full-time job. It is important that you invest time and energy into getting a job during this period of time.
  • Stay Legal: Try as much as you can to maintain legal status. If your H1B was revoked by your former employer as at the time of your H1B layoff, then it is imperative that you file for a B-1/B-2 change in status as soon as you can. You will need financial evidence of your ability to stay in the country. You will need an itinerary that outlines your intent to leave the country at the end of the new status. In the event that your H1B status was not revoked as at the time of the H1B layoff, try to find a new employer then file a change of employer petition. However, if finding a new employer and getting a change of employer petition filed within thirty (30) days becomes impossible, then it is advisable that you apply for a change of status to B-1/B-2 visitor status.

Finding New Employment

H-1B workers are sometimes allowed to work with a new employer without waiting for their H‑1B petition to be approved. However, they must meet the following requirements:

  • Legal admission to the United States
  • Previous ownership of H-1B status and no illegal work since their last lawful admission to the country.
  • The filing of a non-frivolous H-1B petition by the new employer

Conclusion

H1B transfers can be daunting for foreign workers. Most of these challenges stem from not being able to know enough about the process. Hopefully, with the directions in this article, you should be able to navigate the situation.

Force Majeure Clauses

Bet you never read one until now…

               Force majeure clause.  It’s one of those boilerplate paragraphs that no one reads until, you know… now.  It’s one of the first things I was asked, as an attorney, about the pandemic and contractual obligations on a contract.

               A force majeure clause (“force majeure” is French for “superior force”) it is a contractual provision that excuses performance in the event of extraordinary, unforeseeable, and unavoidable circumstances which prevents one or both parties from meeting obligations defined in a contract. It serves to excuse parties from contractual duties due to forces beyond their control.   Generally, it accounts for natural disasters, social unrest, etc. 

               At the moment, there are arguments on the classification of COVID-19 as a force majeure event; however, this is difficult to define. What is important to note is that this novel virus has changed workplace dynamics globally. Travel bans, curfews, and quarantines have forced millions of employees all over the world to work remotely.

Force Majeure and COVID-19

               In the wake of COVID-19 many companies’ struggle to fulfill their contractual obligations because of supply chain management issues, lockdowns, the need to downsize workforces, and the embargo on travel or the movement of goods across the interstate or international borders. In extreme and unexpected circumstances like these, contractual force majeure clauses might be used to justify voiding contractual obligations, especially when such scenarios are overlooked in the drafting and negotiation process.

               Amidst the coronavirus pandemic, many employers are now faced with major disruptions to their business operations. Boardrooms are now forced to make difficult decisions that affect their employees: hiring, layoffs, furloughs, and compensation.

               Employers who do not have remote work models are currently being forced to create them. These flexible working policies, which include the use of technology, enable their employees to work from home efficiently. Health concerns in the face of the pandemic make this imperative.

               Several of the tough decisions taken by business management will implicate written employment contracts and collective bargaining agreements that contain “force majeure” clauses.

Force Majeure and Remote Work

               Lots of employee contracts do not make provisions for remote work. Yet this is a compulsory outcome in the wake of the coronavirus. What’s more interesting is the definition of what a force majeure event is at the moment.

               A lot of force majeure clauses are not expressly clear on terms like “pandemics,” “epidemics,” or “quarantines” as events that might trigger said clause. Yet in some quarters, a natural disaster may qualify as an “act of God” that is beyond the control of the party in question. The question then remains if COVID-19 can be defined as an “act of God.”  Interpreting the terms of the force majeure clause in this context is tricky and will have a lot of grey areas. For instance, justifying loss or using reasonable efforts to continue to execute the terms of a contract may include allowing employees to work from home or the facility to provide services remotely. In the event that the contract can be performed remotely, this option may prevent the force majeure clause from being activated

Conclusion

               A little foresight can help you through some tough scenarios.  Boilerplate clauses are not there for the sake of beefing up a contract.  While many do have standard language, they are just as important, if not more than any other term of a contract.  Make sure you review them properly. 

Contracts and the Art of Tea Leaves

Take a seat, show me your contract and I’ll tell you about yourself.  I may even be able to tell you your future.  Legal psychic?  Maybe or maybe I have read enough contracts in my career that there are indicators, tells, and if I couldn’t, then I wouldn’t be a great advisor.

 

I really do enjoy reading and drafting contracts.  To me, a contract is a story unfolding and every contract has a spirit.  Most recently, I created an agreement for a client and as I was drafting the contract, I was visited by the ghost of contracts past.  All the good and bad that have happened with every contract before this one shaped this contract.  (I’m looking at you evergreen clause that traps businesses in services they don’t want…)

 

At this point, I’ve lost some with this narrative, but those of you that stayed can appreciate that I have a personality just like my clients do.  It is my job, to reflect that personality and the culture of the company in every contract I touch.

 

Here are a few things I’ll look at when drafting a contract:

  1. First, is it the right contract? I know this goes without saying but some lawyers either don’t understand the deal or try to make a square fit in a round peg.  For instance, you don’t want a license agreement when you are really entering into a reseller agreement.  Also, sometimes you may have two different transactions with the same parties.  IT’S OK to have two separate contracts.  Why bind yourself to both when maybe only one transaction will actually be successful?
  2. How one sided is the contract? Is it all about the take and no give?  Fun fact, bigger companies tend to have more fair contracts than smaller companies.  I can read a long contract and have two comments and then read a 10 page contract that I completely mock up.  Why?  Big companies understand that it takes a lot of time to negotiate every point.  They want a mutually beneficial relationship and don’t look to make money on damages.
  3. Which brings us to the next point, liquidated damages. BE CAREFUL here.  They are often inflated and have no direct corollary to actual damages, and more than likely will not hold up in court.
  4. Boilerplate paragraphs aka ‘standard paragraphs’ which may, in title, be standard in contracts but their terms are anything but. Jurisdiction, venue, attorney’s fees, even assignment clauses.  A business dispute will absolutely turn on these so called standard paragraphs and I have gotten to many settlements because the standard paragraph overcomplicated the dispute.  (I will delve into more of these in later posts because jurisdiction is a fun one.)
  5. And of course, the substance of the deal to make sure it is reflected correctly and the right warranties, limitation of liabilities, IP rights, etc are memorialized. Also, that the contract has the right cash flow for the business holder because that is imperative for operations.

 

Every contract embodies the spirit of who you are as a company.  It is about leverage and negotiating power.  If you make your contract fair and concentrate on the art of the deal, you set the stage for a healthy business relationship; hopefully a long term one.

 

Don’t download your next contract from the internet, contact us today for contracts that showcase you and get you paid.

What’s in a Name? EVERYTHING!

Congratulations on your decision to start a new business (and your subconscious decision to forego sleep…)!  Deciding on a business name might very well be the most important decision you make; it can make the difference between a strong branding campaign or perhaps (gasp!) having to change your name.

You name/brand will, of course, be your product or service name, but also your domain name and often your corporate name (you are incorporating, right?).

So, before you choose your name, consider the following:

  • Choose a Unique Name
  • Make the Name Brief
  • Make the name memorable and easy to spell

1) Choose a Unique Name. When you select a business name you are really branding your business.  Branding isn’t just for the big boys, it is crucial to any business as it can give you a competitive edge in the marketplace.  After all, you need to make it easy to find you.  A brand is “A name, term, design, symbol, or any other feature that identifies one seller’s good or service as distinct from those of other sellers.”  In other works, a trademark.

2) Make the name brief (three to six words).  Long names are hard for customers to remember.  You want customers to remember the name AND be able to tell other people what it is. It is also important that the name be short for promotional purposes e.g. domain names, business cards, displays or advertising ads. Which can ultimately save you on cost for advertising, printing, etc.

Try to make the name descriptive of your product or services, but not too descriptive.  If the name is descriptive it can actually draw business to itself.  It makes it easier for potential customers to identify the type of business and locate you, especially if you are just starting out.  On the other hand, if it is too descriptive, you run the risk that the trademark office might reject your trademark application.

4) Make the name memorable and easy to spell.  Potential customers need to be able to remember your business name. They also need to be able to find it easily if they’re looking for it online or in a phone directory.

There are legal implications to consider when selecting a name for your business.  You must make sure to avoid misleading names.  Avoid names that are similar to other companies as to avoid any trademark implications.  Also, do not imply professional credentials that do not exist for example if you are in the health care field but are not a medical doctor do not include MD in the name meaning to imply such.

Once you have a name in mind it is best to research the potential name to make sure it is not already in use.  There are several was to research potential business names.  Some suggestions are:

  1. Popular Search Engines
  2. Patent and Trademark Office
  3. Local business directories in your market (public library or business license offices).
  4. Department of State

 

IMPORTANT:  Just because the domain name is available and/or the name is available with your department of state does NOT mean there isn’t a concern for trademark infringement.  We will talk more about this later, but it is important to research the name or consult a trademark attorney before settling on a name.

Contact Us Today Regarding Your Intellectual Property

 

PROTECTING A BRAND ONLINE AND WHY THE CHATTER MATTERS

According to the definition by the American Marketing Association, the legal term for brand is a trademark.  While that may be true, and brand may not be possible without a trademark, a brand should be viewed as more than that.  Saying that a brand is a trademark seems too passive, as if merely registering a mark, or marks, is enough to maintain one’s brand.  On the contrary, the owner of a brand has to be very active in building and policing that brand in order to build up good will in that brand and its marks, increase value in the market and avoid losing those marks and/or market share in the marketplace.  In this article, we will explore the steps a brand owner needs to take in order to build and protect their brand online with the advent of social media.

The first step to brand protection is to own the intellectual property.  While the laws of the Internet are sometimes slow to progress, protection of intellectual property is the best offensive to protecting the brand online.  While one way to do that is to register the trademarks, such as name, logo or slogan, another great protection is copyright registration.  Whether it is to register articles, blog posts, designs or even the website, copyright protection is part of protecting the brand offering and another line of attack against infringers.

Why is brand protection so important?  It is easy to get lost in the massive amounts of information online, but at the same time, it can also be easy to differentiate from the rest through effective branding.  Social media and social networking are especially suited to developing and maintaining the brand.  Done the right way, connect to consumers, build a following and then remain relevant as the market changes.  Doing so will help create customer loyalty and make it easier to sell existing and new products and services. At the same time, it can control any likelihood of confusion in the marketplace with other products, avoid dilution and more importantly genericide, and even control the cost of marketing.  Branding online can also make it easier to quantify the return on investment.  Social media allows one to monitor online campaigns. By using certain tools one can see what is and is not working in the online marketing strategy and make changes accordingly.

The effects of not monitoring the brand or letting someone else dictate how the brand is portrayed online can be devastating to the company.  It is unnecessary to point out how every marketing dollar counts.  The effects of brand abuse will bring a decline in revenue and more marketing dollars to offset the damage.  Moreover, by allowing competitors or even consumers to use the mark generically or in ways that are not unique to the brand, can risk the mark getting cancelled in the Trademark Office for becoming generic.  Next time you have a headache and turn to your trusty aspirin, take a moment and consider that aspirin was once a trademark.

Examples of Brand Abuse:

  • Keyword or PPC Abuse;
  • Cybersquatting;
  • Defamation;
  • False Association, etc.

Contact Us Today to Talk about Your Brand Protection

 

Don’t Be a Robot: You Cannot Automate Your Ethical Considerations

As published in the New York State Bar Association Corporate Counsel Inside Newsletter Winter 2016.

I could say that today’s lawyer faces a myriad of challenges when it comes to staying abreast of emerging technology and client considerations, but let’s face it, every generation has its challenges.

A few years ago, I wrote articles and spoke on panels regarding Cloud computing and I hope you paid attention. Cloud computing is now the backbone of most emerging technologies out there. More and more, technology vendors base their platforms in the cloud. It is cost effective, mobile, and more secure.

To illustrate it in simple terms, have you noticed the trend of diminishing hard drives and cell phones that come in 32GB models? Do you wonder why? Simply, the trend is to now store everything in the cloud and for good reason. TECH FAILS. The only thing that can help you avoid data loss is redundancy. Sure, you can store your information on a local hard drive but you are doing your clients a disservice by not storing data in the cloud.

To address the mounting concerns and opinions regarding the legal profession and technology, the American Bar Association drafted a model rule in which it is imperative that the attorney stay abreast of legal trends. No longer is ignorance of technology an excuse for not fulfilling your ethical obligations. On March 28, 2015,  the New York State Bar Association agreed by adopting a variation of the ABA’s model rule 1.1 pertaining to competence:

To maintain the requisite knowledge and skill, a lawyer should (i) keep abreast of changes in substantive and procedural law relevant to the lawyer’s practice, (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information, and

(iii) engage in continuing study and education and comply with all applicable continuing legal education requirements under 22 N.Y.C.R.R. Part 1500.

In other words, lawyers cannot be ignorant of technology in their practice or, even, their day-to-day lives because our ethical obligations do not stop when we leave the office. We carry around our laptops, cell phones and various points of electronic vulnerabilities so that we need to be vigilant. Vigilant in terms of password protection, knowing how to wipe your data remotely and even checking the permissions of a mobile app you are downloading.

Notably, the rule says benefits AND risks. I am an early adopter. I like technology and we have a rapport. That’s not to say that I think that all technology is for everyone. Part of your ethical duty is knowing your limits. Just because a software boasts of all the bells and whistles, if you can’t learn the software (it may not be you but them), don’t use it. You are putting your clients at risk because you know just enough to be dangerous.

For a moment, let’s take a step back in time. Let me take you, once again, through the basics of cloud computing. In simple terms, cloud computing is any data that does not reside on your hard drive or on your local server (if you have servers in your office). The first iteration of the cloud is voicemail. Answering machines were replaced with voicemail, which meant that your messages were stored on a remote server that required you to use a code to retrieve them. Although this was a shift in where personal and official information was stored, I cannot remember anyone wondering whether this would be an issue of confidentiality or otherwise.

In the various local and state bars you will find more than a handful of opinions about the cloud and technology in general, and I think, it all boils down to the adopted rule above. Use technology. Your clients and your practice demand that you do but be smart about it. Know the risks. What I find the most interesting, and seems a bit counterintuitive, is the relaxing of the rules when it comes to legal practice and ethical obligations. This, by no means, reflects on the relaxation of our ethical obligations but in a testament to the evolving technology.

When lawyers began to use third party emails such as Gmail, the question was whether there were ethical issues with using unencrypted email. If you’ll recall, there were vendors (and they probably still do exist) that sell encrypted email platforms, one that requires authentication to open the email. Not to say there isn’t a place or a reason for this, but not many of us would need that level of security. It is also cumbersome and delays pertinent information to your client.

So how do the courts view this use of the cloud? An opinion rendered in 1998 in New York State said that a lawyer may use unencrypted email to transmit confidential information since it is considered as private as any other form of communication. The reasoning was that there is a reasonable expectation that email will be as private as other forms of telecommunication. However, the attorney must assess whether there may be a chance that any confidential information could be intercepted. For example, if your client is divorcing his or her spouse, an email that both spouses share, or even an email to which the non-client spouse has access, should not be the method of communication. The attorney must seek alternate methods of communicating.

Gmail will also scan keywords in your email and provide relevant advertising. For instance, if you were discussing shoes in an email, the email service provider would tailor ads when you were in the email inbox and you would now be receiving advertisements for Zappos or any other shoe vendor. After all, nothing is better than a captive audience.

So, the question now becomes whether a lawyer can use an email service that scans emails to provide computer-generated advertisements. The New York State Bar Association opined in Opinion 820 (2/8/08 (32-07)) that, yes, it was okay, since the emails were scanned by machine and not by human eyes. If the emails were read by someone other than sender and recipient, the opinion would have certainly been different.

Which now brings us to emerging technologies. This can come in so many different forms such as keyword searches to automated documents to utilizing big data (i.e., databases of information) to gain an edge over your adversary. We are all familiar with these concepts in one form or another such as HotDocs, OCR, and litigation review platforms but the technology continues to be more sophisticated and more intuitive. Even to the point that there are services out there marketing to in-house counsel that their software can review contracts and technologies that will help you parse together a contract, all at the click of a button.

How ethical can this be and where is the line of streamlining legal fees for your clients and just malpractice?

Pursuant to ABA Rule 5.4, a lawyer, when advising his or her client, must exercise independent professional judgment.

The rule of thumb being, you can use technology up to a point. The attorney still needs to review the work product and maintain a level of control over the final product. You can use technology as it was meant to be, a tool, but you are the one representing the client. It is up to you to present independent legal counsel to them. The technology is there to help you help your client.

Some of the best practices in utilizing emerging technology is sourcing the right technology for you and your practice. What will help you in your field to best represent your client? This could mean document automation, an online docketing system or an online intake platform. Also, recognize whether your clients will be open to this technology. After all, if your clients won’t want to use this technology, you are now hindering your representation of them.

You should also be careful to vet your technology vendors. What is their reputation? Where do they store your information and how can they ensure the confidentiality of your client’s information? These are all questions that need to be addressed. Vendors that service the legal industry should easily be able to give you the answer to these questions. Read their terms of service. If you don’t like something, negotiate. We are lawyers, after all!

And, most importantly, if you decide to discontinue the use of the software, what will become of your data? Is it data you’ll want to export out or ensure that it is destroyed?

The New York State Bar Association Ethics Opinion 842 offers some guidance on choosing vendors, specifically, cloud vendors, which as I mentioned above, since most legal technology does run in a cloud environment:

  • Ensure that the online storage provider has an en- forceable obligation to preserve confidentiality and security and will notify you of a subpoena.
  • Investigate the online storage provider’s security measures, policies, recoverability methods, and other procedures.
  • Ensure that the online storage provider has avail- able technology to guard against breaches.
  • Investigate storage provider’s ability to wipe data and transfer data to the attorney should you decide to sever the relationship.

Our obligations to keep abreast of changing law don’t stop there. We owe it to our clients to take advantage of technology in our practice and to do so safely. Pick and choose what works for you and leave what doesn’t. Technology, after all, is only as good as its user and that’s okay.

 

 

 

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