Category: News Feeds

Lin Wood strikes again! Fresh off his glorious victory, errr “victory”, representing conservative teen Nick Sandman in his defamation suit against CNN, the notorious lawyer has netted the My Pillow Guy as his newest client.

“While I am fully aware that [Anderson] Cooper’s sarcastic, mocking, derisive, and demeaning tone, attitude and facial expressions toward Mr. Lindell are not legally actionable,” he wrote to CNN’s executive vice president David Vigilante, “I have complete confidence that Cooper’s false and defamatory accusations are actionable.” Newsmax and Newsweek both got their hands on a copy of the missive, but failed to publish more than excerpts.

Mike Lindell’s staunch support of the president has netted him access to the entire universe of Trump insiders including the White House’s coronavirus task force.

“It’s a great administration,” he told CNN’s Anderson Cooper in an August 18 interview. “Anything I hear out there, whether it be good sanitizers, or cures, or anything, to bring it back to the task force.”

Why Lindell, who possesses no medical credentials (or even an undergraduate degree) is qualified to speak on infectious disease treatments is unclear. Nevertheless, Lindell claimed that he’d “told the whole country to pray” for a cure for COVID-19, “this guy called me on Easter Sunday and said he had an answer to the virus.” Hosanna!

In fact, what “this guy” Andrew Whitney had was a company called Phoenix Biotechnology which was flogging Oleandrin, an extract derived from the poisonous oleander plant, as a potential treatment for COVID-19. By amazing coincidence, Mike Lindell has a financial stake in Phoenix Biotechnology, and would thus stand to benefit if the federal government decided to buy up millions of doses of the drug and start touting it as the “answer to the virus.”

And indeed, Lindell did his darnedest to make it happen, contacting HUD Secretary Dr. Ben Carson, who helped arrange an Oval Office meeting with Trump in July for Lindell and Whitney to pitch the president on their supposed miracle drug.

The problem is that Oleandrin has never been proven to be an effective cure for COVID in human beings.

“Wait a minute, sir. Wait a minute, stop.” Cooper interrupted Lindell mid-rant about his supposed miracle cure. “There’s no public, peer-reviewed studies about this. There’s no trials that have been published anywhere. There’s no human trials that have been published anywhere.”

But Lindell continued to insist that Phase 1 and Phase 2 trials had indeed been performed somewhere and “the FDA’s got ’em all.”

“There’s been no Phase 1 and Phase 2 on this drug sir,” Cooper said, shaking his head.

“Yeah, yeah, there has. The FDA has had it since April. You’re just misconstrued [sic] because the media’s trying to take away this amazing cure that works for everybody,” Lindell huffed.

Our best guess is that Wood was referring to neutralization tests which the Army was conducting at the time to determine Oleandrin’s efficacy against the coronavirus — an in vitro assay, which is neither a Phase 1 or Phase 2 trial, and certainly doesn’t involve 1,000 human subjects.

How the existence of such a test establishes that Cooper defamed Lindell is unclear. But in any event, the test results were inconclusive, and the FDA rejected Phoenix Biotechnology’s application to market Oleandrin as a dietary supplement, both because it had been publicly bruited about as a treatment for coronavirus (thanks, Mike Lidell!) and because “your submission did not provide sufficient information to establish that the information that you rely on as evidence of safety is qualitatively and quantitatively related to the ingredient, when used under the proposed conditions of use, as indicated in your submission.” Which isn’t exactly a ringing endorsement of Lidell’s claims that his miracle drug is totally safe.

So good luck to Mr. Wood and his client. We’re sure he’ll prosecute his case with all the tact and discretion he’s become known for.

My Pillow Creator Michael Lindell Threatens CNN with Legal Redress Over Anderson Cooper Interview [Newsweek]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

He’s Black. He went to Harvard Law. He graduated at the top of his class. He’s incredibly articulate. He is all the things that Donald Trump wants to be, and he just can’t handle it. And what do you do if you can’t handle it, and you’re Donald Trump? You attack it.

— Michael Cohen, Donald Trump’s former lawyer and fixer, in comments given about the president’s fixation on Barack Obama during an appearance on Rachel Maddow’s show on MSNBC. Cohen was a guest on the show to discuss his new book, Disloyal, where he makes quite a few rather damning (and incredibly colorful) allegations against his former employer.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Any hastily-arranged, somewhat confused half-trillion-dollar government aid program is liable to abuse by the nefarious and the powerful, and the Paycheck Protection Program has certainly been abused: Dozens of people have been charged with stealing $62 million from the stimulus package—and Congressional investors say there’s $1 billion more of the same yet to find its way into a criminal filing. And, well, wouldn’t you know it, but some of those people appear to have had some help.

[JPMorgan Chase] said it has seen “instances of customers misusing Paycheck Protection Program Loans, unemployment benefits and other government programs” and that some “employees have fallen short, too,” according to a memo to staff from the bank’s senior leaders Tuesday. The firm said the conduct doesn’t meet its principles “and may even be illegal.”

“We are doing all we can to identify those instances and cooperating with law enforcement where appropriate,” according to the memo. The bank asked workers to report any conduct that violates its policies.

JPMorgan Probing Employees’ Role in Misuse of Relief Funds [Bloomberg]

It’s been three years since Connie Bertram helped to shake up the staid world of Biglaw by being one of the early trend setters of partners suing their firms, in her case it was Proskauer Rose. Though the case settled for an undisclosed amount, the allegations — which included that there were “substantial gender disparities” at the firm, that Bertram was objectified by two partners, and that her compensation lagged behind that of similarly situated male partners — helped to break the silence surrounding these issues in the legal industry.

After the settlement, Bertram joined Polsinelli, but now the time has come for another big career move. Bertram is saying goodbye to Biglaw and opening up her own firm, Bertram LLP. It’s something she says she’s “had in the back of my head for 10 or 15 years. I’ve had several clients that encouraged me to do this.”

And, no, it isn’t a reflection on Polsinelli. She tells Law.com the move “had nothing to do with Polsinelli. It was a great firm. I had a good experience there.” That firm similarly wishes Bertram all the best, “We thank Connie for her commitment to our firm over the past two years and wish her well in her future endeavors.”

As with all new business endeavors launched during the pandemic, there are some questions hanging over the project. For example, Bertram, who is at the moment the only attorney at the new firm, is holding off on getting permanent office. But since she has an existing client base from her 20 years of practice, she doesn’t see much of a problem. On opening her own shop Bertram says, “It depends some on who you are and what kind of practice you have. If you were coming out of government, hanging up your shingle with no clients, [I] would be nervous.”

The new firm will focus on employment counseling, investigations and litigation including whistleblower claims, executive and board disputes, restrictive covenants, trade secret disputes and government contractor compliance. And Bertram hopes to grow the practice to as many as 50 lawyers over time. Her focus will be on hiring women and minorities:

Bertram said throughout her career she held management roles and worked on client service along with associate development and “trying to be ‘the voice in the room’” for women and minorities. As a result, she would like to focus on hiring women and minorities at her firm.

“It’s more on bringing together very like-minded people … who want to do exceptional work, but maybe had some challenges in the practice of law. I’ve found that a lot of attorneys actually have had difficult life experiences and it pushes them to be more exceptional,” she said.

Best of luck to this new firm.

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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).

Earlier this week, Vault released its closely watched rankings of the nation’s 100 most prestigious law firms. It was there that we learned Cravath held onto its title as the most prestigious firm in America for the fifth year in a row, and that Skadden had edged out Wachtell from the No. 2 spot for the first time in the history of the rankings — by just 0.010 points.

But what if your firm wasn’t top-ranked in the Vault 100? Perhaps your firm isn’t the most prestigious, but that doesn’t mean it doesn’t have clout. Some law firms reign supreme when it comes to certain practice areas, and others are known to dominate entire regions of the country.

Which law firms are considered to be at the top of their game by practice area and region? Let’s find out!

For the purposes of the practice area ranking, Vault asked associates to vote for up to three firms they think of as the strongest in their own practice area, and the overall ranking indicates the firms that received the highest percentage of votes. Associates were not allowed to vote for their own firm, which we’re sure made many recovering gunners very, very sad. Current gunners may find this list useful if they know which area they’d prefer to practice in. Pay attention, prospective laterals, because this is useful for you, too.

We’ve picked out a dozen of the practice areas that were ranked by Vault (you can see the full list here):

Appellate Litigation: Gibson Dunn

Bankruptcy: Weil Gotshal

Energy, Oil and Gas: Vinson & Elkins

General Commercial Litigation: Quinn Emanuel

General Corporate Practice: Cravath

Intellectual Property: Fish & Richardson

International: White & Case

Labor and Employment: Littler Mendelson

Private Equity: Kirkland & Ellis

Real Estate: Fried Frank

Securities: Davis Polk

Tax: Skadden

Next up, we’ve got a ranking that matters to those who think “location, location, location” is the most important thing in life. Vault’s regional rankings are based on votes tabulated from associates who were asked to rate firms on a 1 to 10 scale based on their prestige within the region.

Here’s the list of prestige by region from Vault (you can see the full list here):

Atlanta: King & Spalding

Boston: Ropes & Gray

Chicago: Kirkland & Ellis

Florida: Holland & Knight

Mid-Atlantic: Skadden, Arps, Slate, Meagher & Flom

Midwest: Jones Day

Mountain States: Gibson Dunn & Crutcher

New York: Wachtell, Lipton, Rosen & Katz

New York – Midsize: Pryor Cashman

Northern California: Morrison & Foerster

Pacific Northwest: Perkins Coie

South Atlantic: King & Spalding

Southern California: Latham & Watkins

Texas: Vinson & Elkins

Texas – Midsize: Susman Godfrey

Washington, DC: Covington & Burling

Congratulations to the firms that moved up in this year’s practice area and regional rankings, and congratulations to all the firms that made the cut in the first place. It must be nice to see which firms associates consider as their peers in prestige, and it must be even nicer for partners to know whose pricing models they need to undercut the next time around.

Best Law Firms by Practice Area (2021) [Vault]
Best Law Firms by Region (2021) [Vault]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Thanks to the coronavirus crisis, the legal landscape for Biglaw firms seemed a little rocky for a few months, leading incoming associates to grow worried about their future careers — and rightly so. Amid salary cuts, furloughs, and stealth or outright layoffs, first-year start dates were delayed at many firms until January 2021 and beyond. Were we witnessing a repeat of what happened during the Great Recession? Would another year of law school graduates become a lost generation due to the economic turmoil that rocked the legal world? Outcomes are looking a little rosier now, with salary cuts being walked back and furloughed staff and associates returning to work, but perhaps incoming associates shouldn’t get too comfortable just yet.

Why’s that? The deferral year is making a comeback.

Back in 2009, when Biglaw firms were faced with the problem of too many employees and not enough work, they came up with a unique plan to deal with this issue: the deferral. Incoming first-year associates were offered the chance to voluntarily take a year off and receive compensation for going away with the understanding that they would be able to come back to the firm and resume their Biglaw careers after the deferral. While many sought refuge in the public sector, others focused on having fun and taking trips around the world. Unfortunately, even the best laid plans fall apart, and some associates weren’t welcomed back to their firms on time — or at all, ever.

Ropes & Gray — a firm that landed at No. 13 in the 2020 Am Law 100 rankings, having brought in $1,903,616,000 in gross revenue in 2019 — announced two new deferral programs for first-years earlier this week. Ropes is the first major firm that we know of to offer a voluntary deferral year to its incoming associates.

A memo (available in full on the next page) sent on behalf of Peter Erichsen, the firm’s hiring partner, explains the reasoning behind why these programs are being offered:

This year has truly been one like no other, and we certainly would understand if its developments has prompted a temporary rethinking of your professional priorities. Perhaps you are looking for ways to contribute your knowledge, talent and time to public service work in a variety of areas—fighting racial injustice, addressing housing crises and other needs arising out of the COVID pandemic, or supporting political causes important to you, to name just a few. Alternatively, some of you may have been personally affected by the pandemic in ways you did not anticipate, and could benefit from taking some time off before launching your career.

Incoming Ropes associates have the option of taking either a fellowship year or a sabbatical year, with the promise of joining the class of 2021 when those associates start at the firm. The firm emphasizes repeatedly that these programs are voluntary.

For those who choose a fellowship year, they’ll have to find another job — during a pandemic — at a public interest organization or at an approved government entity, and will receive a stipend of $80,000 (pre-tax). For those who choose a sabbatical year, they can do anything they want (except work at another law firm), and will receive a stipend of 20 percent of their starting base pay, or $38,800 (pre-tax). Like all of the firm’s associates whose start dates have been delayed, first-years who opt for a deferral will also be eligible for health insurance through the firm starting on October 20, 2020. Those who take a deferral year will still receive a $10,000 October stipend and will remain eligible for a $10,000 loan from the firm.

This all sounds great, but there’s just one catch: incoming associates need to make a decision by October 1. We reached out to Ropes & Gray for comment and received this statement from a firm spokesman, who again reiterated that those who choose not to participate in the voluntary deferral will start as planned in January 2021:

The firm is healthy and the business is strong. Our lawyer activity levels are on pace with 2019, which was an outstanding year. As an example, our asset management and capital markets groups have remained busy throughout the year, and the health care and life sciences groups have been going gangbusters. We’ve also seen M&A activity pick up meaningfully in the third quarter.

We have no plans for any actions like furloughs or layoffs. Associates were reassured of this just today in a Town Hall meeting.

The fellowship is completely voluntary. We recognized that in the current climate, some people might want to switch gears and focus on public service, and the program is designed to help them do that. We have heard from some associates that this is something they have been wanting to do; and we have heard from public service organizations that they need help.  We know there is a need for help in our communities, and this is one way our lawyers can contribute.

We got positive feedback from our current associates who appreciate the opportunity, and we wanted to make the same option available to incoming associates.  (To clarify, the fellowship program is offered to current associates, too.)

Good luck to incoming associates at Ropes & Gray who choose to embark upon a voluntary year-long deferral. Let’s hope it all works out for the best.

If your law firm planning to offer deferrals to incoming associates? Please text us (646-820-8477) or email us (subject line: “[Firm Name] Deferrals”) and let us know.

(Flip to the next page to see the memo from Ropes & Gray in full.)

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

A letter filed with the Federal Trade Commission late last month points to statements from ExamSoft’s former director of marketing detailing an expansive effort to recruit and compensate customers to act as “Ambassadors,” creating content and appearing at conferences for the purpose of promoting ExamSoft. The letter, filed by attorney Thomas McMasters, identifies officials for key customers as self-proclaimed ExamSoft Ambassadors, and raises possible violations tied to the payments.

It’s a serious allegation, but whether or not these are actually violations is a bit beside the point. The people who buy ExamSoft — and then who you complain to about ExamSoft — may well be working on the side for ExamSoft.

The question of illegality doesn’t strike me as clear cut as this suggests. We’re entering the murky world of the FTC’s disjointed effort to advise consumers about “sponsored content,” so buckle up. At the highest level, the interview that forms the basis of this section of the FTC letter indicates that ExamSoft saw the Ambassador program as an opportunity to convince non-customers to sign on based on the strength of current client testimonials. Which is a totally reasonable! It’s the basis of decades if not centuries of advertising strategy.

But then we have some line-drawing to do. It’s fine for Kim Kardashian to drink a certain energy drink in a commercial. It’s also fine for Kim Kardashian to drink a certain energy drink in a social media post. But if she took that selfie after the company paid her then she needs to clarify that her “real” life is functionally a commercial — or she would if anyone believed that family has a non-commercial existence at this point. The point is, she might have had that drink anyway, but customers should know that she might not have without the money.

This gets more confusing when you’re talking about initiatives like the ExamSoft Ambassador program. As described by former ExamSoft marketing director Stephanie Totty in a 2017 podcast, reproduced with emphasis by McMasters in the letter to the FTC:

But a big portion of our content creation strategy actually utilizes our actual clients. Our ambassador, or market term would be client evangelist, we call them ambassadors, is so incredibly important to us…. we honestly rely on our clients a lot to help us create and then distribute that content.

I have, at this moment in time, about 80 active client ambassadors. They are from all different educational disciplines. They are all different roles. And I let them do as little or as much as they want. I have some ambassadors who are actively on the phone with me and saying, hey, I came up with this really great new idea. I would love to do a video, or I would love to write a blog post, or I want to speak at this conference, would you support that. Who are actively working with me and giving me new ideas.

What we’re dealing with here are instances where the customer has an idea of their own that they want to push and they’re hoping that ExamSoft will fund it. This isn’t a situation where the speaker is being tasked with creating an advertisement, they’re just looking for a grant to say something over which ExamSoft has no editorial control beyond whether or not to pay for it. That doesn’t seem all that problematic, yet, to revisit our example, just because Kim was going to drink that energy drink regardless doesn’t relieve her of her duty to disclose that she was paid.

But then there’s this passage from the podcast, again with emphasis included in the letter to the FTC:

And then I have ambassadors who are really great at actually hosting a webinar or speaking at a conference or writing a research paper, but I really have to put that idea in front of them and push them to create for me. And some of them do one project a year, some of them do 17 projects a year. It really just depends. I let them decide how involved they wanna be, because obviously I know they have a quote normal full-time regular job as well. Probably several.

So I let them be as active or inactive as they want. I do compensate them for their work as well, which is a big motivator for a lot of them. It’s a little side gig that they take to, and that they really like, some of them, they really enjoy doing.

Now we’ve raised the stakes. We’ve moved beyond funding independent content and into directing tailored content at the behest of the company. That’s less “causally relaxing with an energy drink” and more “causally relaxing with my refreshing, lower calorie #BlunderbussEnergyDrink #GetAFacefulOfBlunderbuss.”

And, yeah, this is all the fault of institutions that chronically underpay staff to the point that a gig economy of multiple overlapping side jobs is necessary to stay afloat. Add in, as Totty noted, that academic jobs require employees to publish and present all the time and ExamSoft therefore has some leverage where it can pay people to do the uncompensated tasks required by their “day job.”

There’s no public record of how much any specific Ambassador received or if every act of content creation was compensated. For example, several state bar officials were scheduled speakers at a 2019 ExamSoft conference. The Chief of Strategy for the NCBE wrote promotional material for ExamSoft. Were these compensated projects or not? They fit the character of what Totty describes but that doesn’t mean these specific projects were compensated. Which is kind of McMasters’s point because it’s impossible to tell what’s compensated content and what’s just a gratuitous appearance at a show — commercials and testimonials become impossible to distinguish.

To get even murkier, as the letter points out, many folks openly disclosed that they were Ambassadors on their LinkedIn profiles… so just how many times did they need to repeat that relationship to satisfy the FTC’s rules? Did they need to stop every few minutes during the presentation to say “the CLE code is ‘NO2PENCILS’ and ExamSoft paid for my hotel room”?

Ultimately though, all this line-drawing may be necessary for the legal questions but obscures the bigger problem. Whether specific Ambassador projects were proper or misleading in convincing non-customers to buy ExamSoft products, forging financial relationships with officials holding influence over purchasing decisions created conflicts of interest within current customers. Most places have rules about this sort of thing and some degree of wining and dining is part of the sales process. But discrete events like a dinner or a conference outing aren’t the same as building an ongoing contractor relationship with key personnel working for the client. How can an institution know that its purchasing decisions are in the best interest of the entity when the individual making the decision is also working for the vendor?

Every ExamSoft client should immediately review their policies and look into whether or not anyone within the institution is a current or former Ambassador and implement appropriate firewalls to alleviate any potential conflicts.

Unless, of course, the people in a position to order such a review are also conflicted and then we’re all in trouble.

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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.

For lawyers, things just aren’t what they used to be. A lot has changed over the past 20 years, and the pandemic has only accelerated the pace of change. Between mobile phones, cloud-based legal software, and artificial intelligence, the tools that lawyers use to get the job done look very different than they did at the turn of the century.

One of the primary areas where technology first affected the day-to-day practice of law was legal research. When I graduated from law school in 1995, we were just beginning to use CD-ROMS (remember those?) to conduct legal research. Within a few years, legal research transitioned to online, and lawyers were able to conduct research from any computer, whether at work or at home.

From there, advances in legal research came steadily, but slowly — until about five years ago. That’s when artificial intelligence tools, such as data analytics and natural language processing, became increasingly common and were soon incorporated into legal research tools. Those advances greatly improved legal research, but arguably increased its complexity, since so many different platforms and legal research tools, both free and fee-based, are now available to lawyers.

That’s where “A Short & Happy Guide to Advanced Legal Research,” authored by Ann Walsh Lang comes in. When I received my complimentary copy of this book for review purposes, I quickly discovered that it’s exactly what the title suggests: a “how to” of legal research that provides an overview of the vast array of legal research tools available to litigators at each stage of a case.

Two stand-out features of this book are the breadth of  coverage and its format. It includes information about a variety of free online tools, including  public records databases, newsletters, and encyclopedias, and case law and statutes. Also covered in depth are a vast assortment of fee-based legal research tools, ranging from more traditional case law and statutory research tools to cutting edge AI-based legal research and data analytics software.

The way in which this information is provided is part of what makes this book so useful. First, there’s the format of each chapter. As explained in the introduction, different firms have different needs — and resources — and the structure of each chapter reflects that reality:

Like so many things in life, legal research requires choices. When you have more time than money, you can look for good and cheap resources. When you have more money than time you can look for good and fast resources. The resources I discuss in this book are all good, but many are not cheap. In each chapter, I will provide a comparison chart of good, cheap, and fast resources. When a resource is cheap, it is free or low-cost. When a resource is fast, it is available online from your desktop or provides a comparably huge savings in time.

Also significant is the way that the book is organized. The first and last two chapters address: 1) the top five questions  to ask before beginning legal research, 2) the ethics of online legal research, and 3) upper-level writing legal research. The remaining chapters are each focused on the different stages of a case, the questions you’ll need to ask  during that phase of the case, and the legal research resources available that could prove useful in answering those questions:

• Chapter 2. Litigation Phase I: Case Assessment Part 1: Is There a Valid Cause of Action?
• Chapter 3. Litigation Phase I: Case Assessment Part 2: Is the Issue Worth Pursuing?
• Chapter 4. Litigation Phase II: Discovery and Investigation
• Chapter 5. Litigation Phase III: Pretrial Action Finding Pleadings, Motions, and Briefs

Another notable aspect of this book is its up-to-date coverage of AI-based legal research tools. In the relevant chapters, applicable AI software programs are covered, with a discussion of the functionality of the software and why it’s useful in that context. The AI legal research tools discussed include:

1. Fastcase’s Docket Alarm and Analytics Workbench
2. Lexis Advance Litigation Profile Suite and Lex Machina
3. Westlaw Edge Litigation Analytics
4. Bloomberg Law Trackers
5. LexisNexis Context
6. Westlaw Profiler and Thomson Reuters Expert Witness Service
7. Bloomberg Law Litigation Analytics
8. Casetext CARA
9. Judicata’s Clerk

So  whether you’re a seasoned attorney who needs to brush up on the latest legal research tools or a law student just starting out, there’s something in this book for everyone. Legal research is in the midst of a new wave of change, in large part driven by AI software, so why not get in front of it by investing in this book? At just $22, you’ve got very little to lose and lots to gain!

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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.