I’m sure that by now you’ve already seen the infamous cat filter court hearing video. If not, Google it and watch it. I’ll wait.
Now that you’re back, let’s talk about how you can avoid replicating that unfortunate predicament. The short answer? By maintaining technology competence when using electronic methods to communicate with clients and colleagues.
It’s always been important to ensure that you understand how to use the technologies that you use regularly in your practice. But now that many of us are working — and appearing in court — remotely, it’s imperative that lawyers are technologically competent when communicating electronically.
If you’re not sure what your obligations are when it comes to electronic communications or aren’t sure where to start, you’re in luck. The Florida Bar issued an updated guide last year that’s right on point: “Best Practices for Professional Electronic Communication.”
This 25-page ebook offers a comprehensive overview of the ins and outs of different types of electronic communication and the issues lawyers need to understand when using said technologies. The types of electronic communications covered include texting, email, social media, telephones and cellphones, laptops, and court appearances via videoconference.
I recommend that you read the guide in its entirety since it contains a ton of useful information about securely and ethically communicating electronically. In the meantime, here are some highlights to get you started.
For starters, let’s take a look at the technology considerations you need to be aware of when texting. First and foremost, please understand that like the internet (see last week’s column), texting is forever. As the authors explain, “text messages can be saved on a cell phone within the actual conversation or on a smartphone by simply taking a screenshot of the conversation. These captured text messages can be forwarded to other recipients or exported from the device.” So please, text with care.
Other useful tips to keep in mind when texting include the following: 1) understand that text threads can be altered, and 2) when texting with or about clients, familiarize yourself with the backup policies, retrieval methods, metadata, etc., that texting service providers and devices employ to allow the retention and destruction of sent and received text messages.
The advice relating to email was likewise instructive, and worth taking note of. First, the authors focused on email attachments and the importance of understanding and managing any metadata contained therein: “Attachments may contain metadata that could disclose unwanted information to the recipient (and may) contain malicious software code (so) use scanning software for both outbound and inbound emails.”
Another important factor that was emphasized was the need to preserve confidentiality when using email. The authors explained the risks of using unencrypted email when sharing confidential information: “(I)f you use email as form of confidential communication, you should know the risks and be familiar with the options of sending secure/encrypted messages (since) there is always a chance that your email may be intercepted. Many of these risks are mitigated if not entirely eradicated when using an encrypted email service.”
Because of those risks, the authors recommended that lawyers use secure client portals like the ones built into law practice management software in lieu of email: “Secure client portals are an emerging and safe alternative to email. There are many case and practice management systems that offer a client portal component. You should seriously consider this option as a method of communication for confidential information.”
And last but not least, let’s bring it full circle and take a look at some of their recommendations regarding virtual court proceedings. First and foremost, the authors emphasized the importance of technology competence, and explained that judges should “(a)llow a few minutes more than you normally would before the time to begin to ensure technology is working.” Similarly, another piece of advice was to “have technology staff on standby, readily available to handle any technology issues that may arise.”
Take that last tip to heart, dear readers, on the off chance that you, too, end up imprisoned behind an adorable filter at the start of a hearing. With a tech-savvy assistant nearby, you’ll be able to quickly address the issue and thus avoid being immortalized via an internet meme as a very cute, albeit distressed, cat.
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase legal practice management software. She is the nationally recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].