Category: News Feeds

Tucker Carlson was very, very agitated last night that the FBI arrested well-known white nationalist Doug Mackey. Well, Tucker doesn’t claim to know anything about Mackey’s views — which would require astounding levels of professional ignorance — but he’s angry over the principle of the thing. So much so that Carlson decided to open his show with the topic, warning his audience that Big Brother’s thought police are coming for the Internet.

His crime? He made fun of powerful Democrats on social media…. This “disinformation” the Biden administration solemnly explained, quote, often took the form of memes. Yes, memes. Online mockery. Online mockery is now illegal if it’s aimed at the wrong people.

Well, that’s one takeaway. The other, far more accurate takeaway, is the part where Mackey’s accused of orchestrating large-scale voter fraud. I’m thinking that’s the part that the FBI is more concerned about.

And how is this “the Biden administration” explaining anything? Merrick Garland’s not confirmed yet. This investigation didn’t kick off last week. Does this show even bother to run their legal claims past a real lawyer? Obviously that’s a rhetorical question.

Mackey, doing online trolling business as “Ricky Vaughn,” and his alleged co-conspirators did make a bunch of memes and the charging affidavit does make basic Internet usage seem shady as it’s setting up the charges and these goofy paragraphs inspired right-wingers to spend the afternoon aghast at out-of-context quotes. For instance:

Yes, none of that’s illegal and when someone posts on Twitter saying, “look what they arrested this guy for doing” and posts that image it can generate some hate clicks. But if someone invested the time to actually read the whole thing instead of relying on Tucker Digest, the FBI isn’t suggesting any of that is illegal either.

This filing is unsurprising to anyone who has ever had to read an FBI affidavit discussing any technology more modern than a sundial. Entirely committed to the bit of explaining everything like they’re always talking to a Boomer — but when that Boomer was a first-grader in 1953 — the DOJ’s technical writing reads like it’s stuck in one of those Progressive Dr. Rick commercials: “so, then these guys got real big with the ‘hashtagging’ and ‘memerization’ over there on the intertubes!” In my own practice, I read several of these that described “e-mail, short for electronic mail” as if it spawned from a wizard’s staff. That was in 2010.

Yes, it is entirely worthy of mockery and the DOJ would, as an institution, be better served to start writing as though we’ve all had access to this technology for a couple decades at this point. But taking these dorky paragraphs and telling a bunch of non-attorneys that it means the government is trying to ban their online presence is irresponsible.

Carlson explicitly told his audience that the federal government had declared it a crime to post memes directed at powerful Democrats. That is not a crime. It is, however, a crime to engage in a conspiracy to suppress someone’s basic rights, like attempting to defraud voters:

So it’s not so much that “online mockery” is illegal as creating fake messages from an opposing campaign and convincing those voters to waive their right to vote by sending a text message is illegal. That is where 18 U.S.C. § 241 comes in, which provides in relevant part:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States….

Like, if someone were to conspire to interfere with the right to vote. According to the filing, the federal government found that at least 4,900 unique phone numbers “voted” through Mackey’s scheme. That’s several more than Tucker claimed were impacted — despite the fact that he had the document right there and could have looked it up easily. It’s also orders of magnitude more people than were impacted by whatever Dominion, triple-counting, Italian vanloads of ballots wingnuttery Tucker spent the last few months hyping.

In the meantime, feel free to post whatever memes you want. Go ahead and mock powerful Democrats online to your heart’s content. As long as you steer clear of voter fraud, this case shouldn’t be a problem for you.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Despite the never-ending promise of how software will help transform your legal practice, most attempts at such modernization still fall short. 

In fact, bringing on new technology without an adoption plan is often worse than doing nothing at all. 

That’s because “legal innovation” is not always about technology; it’s about a change in practice that improves the delivery of legal services and provides better value to your clients. While technology is often a component of such innovation, it doesn’t always have to be. 

As the VP of Customer Success at Matter365, it is my role to ensure that every new customer gets the value of a fully integrated legal practice management system.  

In my experience, the following steps will help ensure that the adoption of any new technology is truly helping to drive the types of changes you want to achieve.

Take the 30,000-Foot View

Before you even start looking at any new shiny technology, ask yourself: What are you trying to do better? What new thing are you trying to do?  

If the process in your firm is broken, chances are technology will not make it better. You will just be automating a broken process. 

And if the thing you are trying to do better can be improved, you must assess whether the new technology can accomplish all of this or only parts of it.

If you break down the process to its various “moving” parts, you may have an easier time finding the right technology for each part, rather than finding the perfect technology that “does it all.”

Lastly, consider what other processes will be impacted by any technology. If you are automating one part of a process, will the other non-automated parts adapt to the new workflow easily, or will the new technology create a new bottleneck in your process?

Don’t Forget Compatibility 

Chances are, there will be more than one new piece of software that will fill your needs. 

When making choices on which to try or buy, consider which technology does this best versus which technology does this well-enough AND integrates well with your other current systems. 

If your new piece of shiny new tech does not play well with systems your team already uses, it will be hard to get widespread adoption; worse, it might create further inefficiencies in your processes

Get Buy-In Before You Buy

If you’re considering bringing on a new product, you should first identify all of the users who will be using the new tool — and get them involved in the search, trials, and purchasing decisions.  

A piece of shiny new technology might impress a group of lawyers, but if their clerks and assistants don’t like it, it’s not worth the investment. However, also beware of internal blockers — those who automatically cling to the old way of doing things.  

If you get users involved in screening new technology, they will be more invested in the outcome. And if users know why and how the improvement will occur and have input along the way, they are less likely to resist.

Top-down requests — demands? — to adopt new systems? These generally do not work.

Finish the Follow-Through

Consider the printed owner’s manuals that come with most appliances or electronics. They start with “Congratulations on the purchase of … ” and then outline how the new thing works.  

With most new legal technology and software, you rarely get such a guide. After you sign up, you are lucky to get a set of video “tours” of the systems and a link to the support page.

This self-help approach might work for some users and firms, but spending the time — and money where needed — to get all your users trained adequately on the software is the quickest way to achieve the full value from your new technology.  

Just as necessary as onboarding and training is getting follow-up training after 30-60 days to ensure that everyone on your team is maximizing the use of the new tech.  

You can use these follow-up sessions for diving deep into how your users need or want to use the technology or get answers to nagging issues. Any provider that is unwilling to spend the time with you to solve your problems and maximize the value of their product shouldn’t get your business.

At Matter365, we provide initial onboarding and training. We also follow up with customers at regular intervals with offers of ongoing training and support.

I believe these steps are critical to ensuring that all firm members have the skills and knowledge required to effect the change promised by the adoption of a new piece of technology.

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Rohit Parekh is a Registered Trademark Agent and practices intellectual property law.  In addition to the practice of law, as the VP of Customer Success at Matter365, Mr. Parekh develops and implements processes and workflow solutions for legal services to maximize efficiency and value.

Every year around this time I start to gear up for the Legalweek conference in New York City. For those unfamiliar with Legalweek, it’s a large legal technology conference sponsored every year by American Lawyer Media that typically draws attendees, ranging from attorneys to IT staff, who are primarily from large law firms. It boasts multiple educational tracks that focus on a variety of legal technology issues, including eDiscovery, knowledge management, records management, project management, risk management, mobile devices and computing, cloud computing, and artificial intelligence.

I’ve attended this conference as press for more than a decade now, and have found it to be a great way to network and get a sense of how the legal technology landscape will change in the coming year.

Of course, 2021 is a different beast. Because of the pandemic, Legalweek is going virtual, and it’s being held over the course of the entire year. Next week’s sessions are the first round of the year-long event.

As regular readers of this column know, I prefer avatar-based conference platforms. But for Legalweek, I’ll make an exception. I’m giving it a shot and am hopeful that the virtual conference platform utilized by the conference won’t fall flat, which has been the case for the Zoom-based conferences I’ve attended thus far. We’ll see how it goes next week.

In the meantime, as I gear up for the conference, the PR pitches from conference exhibitors have been flowing into my email inbox, and I’m in the process of deciding which ones interest me thus far. Of those pitches, one of the earlier emails from LexisNexis regarding litigation analytics tools caught my eye. I met with LexisNexis representatives yesterday to learn more about how they’ve added a litigation analytics tool to Lexis+ and to see it in action during a demo.

At the start of the demo, I spoke with Karl Harris, CEO of Lex Machina, and Wade Malone, a Product Manager at Lex Machina. They explained how some of Lex Machina’s data and analytics tools are now included in the LexisNexis research platform, Lexis+. I learned that LexisNexis offers full access to Lex Machina as a separate subscription, but top level litigation analytics pulled from Lex Machina are now available at no additional cost to Lexis+ subscribers.

The end effect is that Lexis+ subscribers continue to have access to legal research tools, practical guidance, and brief analytics — and now litigation analytics have been added to the mix. These new litigation analytics tools are accessible to Lexis+ subscribers as part of the typical search process, and can be accessed using “Quick Tools” functionality as well. Lexis+ subscribers also have available a “Comparator Tool” that allows users to compare data sets for specific judges, attorneys, and courts.

The way it works is that Lexis+ subscribers are able to search for analytics on courts, judges, attorneys, or law firms. Once you run a search for a judge’s name, law firm, lawyer’s name, or court, you’re provided with results that include the number of cases handled overall, the number of cases handled from specific categories (e.g., contracts or real estate), damage amounts awarded, and more. The database includes all federal courts and judges, along with some state court data, often from larger metropolitan areas of the country. They advised me that they intend to continue to expand coverage into additional jurisdictions in the future.

One caveat to be aware of is that the analytics provided are not as in depth as they would be if your firm also subscribed to Lex Machina. So although you can drill down into the data, it will sometimes end at a “flat” page that won’t allow you to access the next level of data. For example, if you run a search for a particular judge and the results show that the judge has handled 500 criminal matters over the past year, when you click on the number “500” it takes you to a page that consists of a graph of cases from the past year that shows the number of pending criminal matters on the judge’s docket for the year. It’s a flat page, however, meaning that you’re not able to interact further with any of the data on that page unless you also subscribe to Lex Machina.

Even with that limitation, the information provided is incredibly useful for attorneys. Litigation analytics are a fantastic, must-have tool for lawyers seeking a competitive edge, since they provide valuable insights that can be used to guide the direction of a case and help litigators make educated, strategic decisions throughout the course of a matter. For that reason, even with its limitations, the addition of this functionality to Lexis+ is undoubtedly a welcome one for its subscribers.

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Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.

A couple days ago on Jeopardy, attorney Stephen Newman, who introduced himself as originally from New Hartford, New York, but currently serving in the Los Angeles office for Stroock, tried his hand at taking down reigning champ, Eimer Stahl partner Brian Chang.

Chang prevailed over second-place Newman, but the L.A. lawyer left us with an anecdote about playing poker against Justice Elena Kagan while she was a professor at the University of Chicago Law School. Jess Bravin cuts to the chase of Newman’s story:

Unfortunately, that video appears to be gone, but you get the gist of the story.

Kagan’s poker acumen isn’t news to me. A friend of mine — who was very good at calculating odds himself — told me years ago that while he went to Princeton, he played in a regular poker game with fellow students Elena Kagan and Eliot Spitzer. And while the latter preferred to take different gambles in his career, the players were apparently fairly accomplished back then so it’s unsurprising that Kagan is still whipping people today.

So remember, if you’re ever arguing before the Supreme Court, don’t read too much into one justice’s poker face.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Something just shy of half of HSBC’s business is done in its namesake cities of Hong Kong, Shanghai and the rest of China beyond. This has the government of London-based HSBC’s home country wondering, specifically about the business that HSBC is no longer doing with pro-democracy activists in Hong Kong on account of China’s decision to start ignoring its obligations under a treaty with that government. Well, CEO Noel Quinn isn’t wondering, at all. If persecuting those who’d like to enjoy the freedoms they were promised under that treaty between the U.K. and China on behalf of the latter’s ruling Communist Party, it isn’t costing him any sleep.

Paul Davis has had quite the January, hasn’t he? He started the month off as associate general counsel and director of human resources at Goosehead Insurance, but then he participated in an attempted coup — and posted his exploits on social media. So, yeah. He’s no longer employed by Goosehead Insurance. But his brush with infamy wasn’t over yet!

He attempted to put his law degree to use by filing a lawsuit (along with lawyer and failed candidate for the Texas House of Representatives Kellye SoRelle) that “is not a 2020 presidential election fraud lawsuit” but still somehow seeks to overturn the results of the 2020 presidential election. The complaint, which lists every single member of the 117th Congress, every state governor and secretary of state, and Mark Zuckerberg as defendants, alleges changes to election laws in advance of the 2020 election were in violation of the Help America Vote Act (HAVA) which resulted in civil rights violations. And it asks that all actions of the new Congress — including certification of Joe Biden’s win and the second impeachment of Donald Trump — be invalidated.

And as bonkers as that already was — there’s more!

That’s because he filed an amended TRO motion in the case using the experiences of Gondor as precedent. That’s right, he dusted off the old J.R.R. Tolkien and asked a federal court to throw out the results of a free and fair election because… Gondor has no king. The filing is a real journey. But wait! There’s more!

He made… a bunch of filings, especially for a case still in its infancy, one of which went after the media for ridiculing his brief. I mean… ask a judge to install the government of Middle-Earth and this is what you get.

Anyway, yesterday we got the first signal this farce of a lawsuit might be drawing to a close.

Judge Alan Albright (appointed by Donald Trump, no less) has issued an order to show cause, and it’s fair to say he isn’t impressed by Davis’s legal analysis:

Here, the Court finds that Plaintiff’s claims are without merit, because the federal statute under which they seek relief do not permit them to sue Defendants to restrain Defendants from “participating in any action relating to the process of electing public officials, holding public office or any official government position, or position in any partisan enterprise related to American politics, and from defaming or threatening or otherwise interfering with the life, liberty, or property of Plaintiffs.” Pls.’ Compl. Plaintiffs have not pleaded sufficient facts to state a claim to relief that is plausible on its face under either the Help America Vote Act (HAVA) or § 1983.

And, you know, HAVA “does not provide the declaratory relief” sought, and “§ 1983, even if used to assert any potential right under HAVA, does not apply to federal officers, such as members of the 117th U.S. Congress, who act under federal law, and thus relief is not available under this statute.”

Plaintiffs have until February 10th to amend the complaint, but the future of Davis’s case doesn’t look too good. Maybe he can get a writ of mandamus from the Council of Elrond?

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

* A new lawsuit alleges that tuna served at Subway is not really tuna. Guess they knew something smelled fishy… [Washington Post]

* A prominent entertainment attorney, who represented novelists like Dan Brown and John Grisham, has passed away at 77. [Variety]

* A New York attorney has been charged for allegedly defrauding real estate investors. [Department of Justice]

* Investors are suing AstraZeneca for allegedly sustaining losses due to purported issues testing the company’s COVID-19 vaccine. [Bloomberg Law]

* President Biden’s brother supposedly advertised his relationship with the president in a law firm advertisement. Didn’t President Carter’s brother use his celebrity to sell beer? [NBC News]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to a survey by MyCase, by April of 2020, what percentage of law firms remained steadfastly in the office amidst the COVID-19 outbreak?

Hint: 48 percent of firms were totally virtual, with the balance taking a hybrid approach.

See the answer on the next page.

A few weeks ago, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 496 where they discuss how a lawyer can ethically respond to negative online reviews. Prior to this, it was generally understood that a lawyer shall not disclose confidential information under the attorney-client relationship to respond to a negative online review. The committee agreed.

The opinion cites to the relevant ABA Rule stating that a lawyer may reveal confidential information to establish a defense in a controversy between the lawyer and the client or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

The committee found that a negative review is not a “proceeding” in any sense of the word. Second, they looked at whether online criticism rises to the level of a “controversy” between a lawyer and a client, and if so, whether responding online to the criticism is reasonably necessary to defend against it. They concluded that because of its informal nature, a negative online review is not a controversy within the meaning of the rule and therefore does not allow the lawyer to disclose confidential information. And even if the criticism were to be considered a controversy between lawyer and client, a public response is not reasonably necessary to establish a defense to the criticism.

The committee warned that some states can impose sanctions against lawyers for disclosing confidential information online and then offered recommendations on responding to negative comments online. They advise contacting the website or search engine to remove the post. This is generally for posts that are truly fraudulent, such as a post from someone who is not a client.

The committee also advises not responding to the complaint at all as it can trigger another response from the original poster. And reviews with more activity generally gets better online search results.

Finally, they recommend contacting the original poster and trying to work something out so that they will remove the post voluntarily.

My guess is that most attorneys will not have nice things to say about this opinion although they will not be surprised.

Let’s take a look at the opinion and start by looking at the committee’s analysis on proceedings. I agree that a negative online review is not a proceeding. But many of the prominent ratings websites have procedures for dispute resolution which includes removing a negative review. Does participating in the dispute resolution process count as a “proceeding”? If it does, it may only allow disclosure of confidential information only to the people involved in the resolution process.

An argument can be made that a negative review can be a controversy between attorney and client. The client is making a statement that can negatively affect an attorney’s reputation and means of making a living. While it may seem informal, it’s not like hallway chatter, locker room gossip where the audience and potential for spread is limited. On the other hand, internet reviews can reach a large audience very quickly. If a review goes viral, it can result in others piling on in a pack mentality, giving multiple negative (mostly unsubstantiated) reviews. Because of its fast and far-reaching effect, criticisms should not be easily dismissed despite their informality.

The committee does not explain why a public response is not reasonably necessary to establish a defense to the criticism if a negative review rises to the level of a controversy between lawyer and client.

Finally, the committee’s “best practices” recommendations are seldom likely to get the results the attorney wants. Or even a fair result. Most websites will rarely remove a negative review — even if it is false — as they generate the most interest. They claim that removing negative reviews will affect the integrity of their ratings, and it’s up to the aggrieved party to respond appropriately. I agree that some negative reviews do not warrant a response, usually the ones where it is obvious that the reviewer’s words are not trustworthy. Reaching out to the former client sometimes works, but usually they will want a full refund and even then that does not guarantee a removal. And the committee’s recommendation to use a canned response stating that “professional obligations do not allow me to respond as I wish” seems dull and analogous to someone saying that they will take the fifth.

Now I understand on a general level why the committee ruled the way it did. The duty of confidentiality is a sacred one in the legal profession. Because violating that duty can result in punishment, clients can feel secure that they can be candid with their attorney. And former clients should be allowed to share their negative experience with a particular attorney as the threat of public criticism should ensure that attorneys treat their clients with the care they deserve.

But the problem is that the rule forbidding the disclosure of information is perceived to be too harsh to attorneys and overwhelmingly gives clients the benefit of the doubt. Why should clients get to tell their side of the story while attorneys have to suck it up to protect the duty of confidentiality? We are no longer members of a gentry where we are above petty criticism.

My recommendation for a future opinion letter is that there should be very clear guidelines as to what topics should be given full confidentiality protections and which ones should not. Not every conversation between an attorney and client should be subject to attorney-client privilege. I’ll give an example: opinions on fees. If a potential client complains online about an attorney not giving free consultations, the attorney should feel free to respond with full details about his or her billing structure as it has no adverse effect on a client’s legal issues. Or if a client complains that his attorney overbilled, he should be allowed to explain (within reason) why he billed the way he did.

This should remind lawyers of a few rules when it comes to dealing with negative internet comments. First, do not take clients that mostly give negative reviews.

Second, the lawyer should give a professional response no matter how insane the review looks. These days, while most people will still gravitate toward the negative reviews, they will also look at the response to it. A professional response has the chance of minimizing or negating the effect of a bad review.

Negative online reviews are the bane of any business, law practices included. But most bar associations’ ethics opinions forbid attorneys from disclosing confidential information, a decision most attorneys thinks is unfair and does not take into account the harsh behavior of an angry internet mob. While the duty of confidentiality is a cornerstone of legal practice, not every communication is entitled to that protection. Hopefully, a future ethics opinion will list what topics can be disclosed without violating the attorney’s duty of confidentiality.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.