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    Archive for March, 2022
    Evolving Views on How to View Security
    Monday, March 28th, 2022

    Network Security

    ♫ Further on up the road baby,
    things gonna change… 

    — Music and lyrics by J.L. Hooker, C. Thompson, C. Santana; recorded by Santana.

    The State Bar of California’s Committee on Professional Responsibility and Conduct has just issued Formal Opinion No 16-0002. It looked at a lawyer’s ethical obligations with respect to unauthorized access by third persons to electronically stored client confidential information in the lawyer’s possession. In some ways it parallels what is set forth in s. 10-4 Security of Records of the Rules of the Law Society. What is illustrative is that “the Committee adopted an approach that posed questions lawyers should consider in order to comply with the duties of competency and confidentiality. In light of ever-changing technology, the Committee concludes that an on-going engagement with that evolving technology, in the form of security issues to consider and re-consider, was preferable to a “bright line” or “categorical approach.”

    The Committee looked at four scenarios: An attorney’s laptop is stolen; an attorney’s smartphone is left in a restaurant overnight; a firm is infected by Ransomware and a lawyer’s laptop was accessed while the lawyer was using an unsecured public Wi-Fi network. Hypothetically the Committee looked at the factors to consider in each scenario.

    The requirement to make reasonable efforts to protect client information from unauthorized disclosure or destruction was affirmed. California went further, however, and stated that: “Given the obligation to preserve client confidences, secrets and propriety information, it is appropriate to assume that reasonable clients would want to be notified if any of that information was acquired or reasonably suspected of being acquired by unauthorized persons.” In BC, we have an obligation to notify the Executive Director of the Law Society but the Rules and Code are silent on the duty to notify a client if the firm lost control or custody of any of the lawyer’s records [10-4 (a)] or if anyone had improperly accessed or copied any records [10-4 (b)].

    California also affirmed the American Bar Association formal opinion of 18-483 that holds: “lawyers with managerial authority within a law firm must make a reasonable effort to establish internal policies and procedures designed to protect confidential client information from the risk of inadvertent disclosure and data breaches as the result of technology use, which includes monitoring the use of technology and office resources connected to the Internet and external data sources.”  They also held that a law firm should: “consider preparing a data breach response plan so that all stakeholders know how to respond when a breach occurs.”

    This opinion, I believe, foreshadows what could be eventually adopted in other jurisdictions. Prudent firms may wish to examine the formal opinion with a view to revamping their policies and procedures to reflect this evolving thinking because further up the road, I believe, the thinking is gonna change.

    As a First Step Towards Greater Security

    Check if you have adequate insurance to protect yourself against various losses, including data breaches, cyber-losses, cyber-extortion and social engineering (phishing) fraud scams.

    The Law Society
    has a good breakdown of the coverages that are available that the Law Society insurance does not cover.

    The Sedona Conference Canada
    has prepared a commentary on privacy and information security for legal service providers — Principles and Guidelines (Aug 2020) that is well worth reviewing.

    The Sedona Conference
    has also prepared a Commentary on a Reasonable Security Test (Sept 2020). This Commentary begins with a brief summary of the importance of having a test, the reasoning behind a cost/benefit approach for the test, and what issues the test does not address. Part I sets out the proposed test and the explanation of how it is applied. Part II provides review and analysis of existing resources that offer guidance on how “reasonable security” has been defined and applied to date and explains how they bear upon the test.

    Create a data breach plan
    before you are hit with a breach that will allow you to deal quickly and decisively with any possible data breach. Lawyers Mutual of North Carolina has published a Data Breach Incident Response Plan Toolkit by Tom Widman, founder, president and CEO of Identity Fraud, Inc.

    Inside your data breach plan
    Sharon Nelson, David Ries, and John Simek have written “Be Prepared — Planning for When Your Law Firm Suffers a Data Breach.” This article is a nice compact review of the issues to consider placing inside your data breach plan.

    Protect personal information and data breaches
    The Office of the Privacy Commissioner of Canada and The Office of the Information and Privacy Commissioner of Alberta has published “Security Personal Information — A Self-Assessment Tool for Public Bodies and Organizations.” This comprehensive tool is an incredible resource for any organization seeking to examine their systems and procedures to protect personal information and data breaches.

    DLA Piper
    has summarized Canadian privacy statutory data breach obligations.

    The Canadian Bar Association
    has published an article in 2015 written by Jeffrey Kaufman entitled, “Law Firm Privacy Compliance in 10 Steps.

    (c) 2022 David J. Bilinsky.

    (originally published in PracticeTalk and TechTips, in the Canadian Bar Association’s BarTalk magazine:

    https://www.cbabc.org/BarTalk/Articles/2020/December/Columns/Evolving-Views-on-How-to-View-Security

    https://www.cbabc.org/BarTalk/Articles/2020/December/Columns/As-a-First-Step)

    Posted in Change Management, Firm Governance, Fraud and theft, Issues facing Law Firms, Law Firm Strategy, Leadership and Strategic Planning, Technology, Trends | Permalink | No Comments »
    Digital Transformation: Moving Past the Present
    Monday, March 21st, 2022

    Digital Transformation

    ♫ Oh, then won’t you embrace me?… ♫
    — Music and lyrics by Greg Laswell

    What does it mean for law to move into digital transformation? Let’s take a step back and get a bit of perspective.

    At the beginning of time, law firms and courts kept all records on paper. The first step along this transformative path was to convert to electronic records. “Paving the cowpaths” meant that all records were now kept in electronic folder systems that were the electronic version of the file folder — or in other words, “digitalized.” All files were still kept the same and searched by brute force. Similar to paper, all storage and organizational systems were analogous, albeit on a digital platform. This is only slightly transformative since the same ways of thinking were used to handle digital documents as they did with paper.

    To take the next step toward transformation, new ways of doing things must be chosen. Moving to a digital filing system allows for digital searches across the whole database; and it allows for new ways of working as all files can be shared and accessed from home or a remote office.  Practice management software can integrate with the filing and accounting systems, resulting in lawyers working from a digital desktop. In the court situation, case management software can now be used that integrates scheduling with court files, HR systems and more. It is the bringing together of multiple systems in one package that starts to open up new ways of thinking and with it, new processes.

    Salesforce.com’s publication, “State of the Connected Customer,” states that “technology has significantly changed their expectations of how companies should interact with them.” For example, portals: secure websites, allow clients to gain access to all communications and documents on their file 24/7 and avoid insecure ways of communicating such as email. Furthermore, they can respond and leave instructions without going through voicemail or email jail.

    The next step will be in applying Artificial Intelligence (“AI”) and Digital Analytics (“DA”) to law. AI already has revolutionized legal research, legal contract review, as well as litigation case analysis. DA has the promise of providing insights into new services that can be offered to clients by analyzing firm wide data based on client profiles.

    Lastly, we have the transformation of the law via technology. Smart contracts on the Blockchain are an entirely different beast from a traditional contract. “A smart contract is a self-executing contract with the terms of the agreement between buyer and seller being directly written into lines of code. The code and the agreements contained therein exist across a distributed, decentralized Blockchain network. The code controls the execution, and transactions are trackable and irreversible.

    Smart contracts permit trusted transactions and agreements to be carried out among disparate, anonymous parties without the need for a central authority, legal system, or external enforcement mechanism.” (per Investopedia)

    Disputes over smart contracts can take place via Online Dispute Resolution (“ODR”) built into the Blockchain using virtual juries. The next step with ODR is to allow the software to help resolve disputes as the deciding party.

    The Blockchain can be used to replace traditional ways of doing things. 20 Real-Life Uses for the Blockchain lists such uses as enforcing copyright; replacing land, automobile and other title transfer systems, medical record keeping, wills, equity trading, tracking prescriptions and many others.  With increased use of the Blockchain will come increased use of ODR and less reliance on traditional court systems. This is the transformative power of technology.

    What is the future use of technology in law? Pega.com states: “Leaders are less concerned about using technology to increase profits, with 46% citing cost savings and 43% citing revenue generation as changes they are trying to achieve. Instead, 65% of leaders see it as an avenue to achieving higher quality work. Fifty percent of the leaders surveyed also believe technology will create more reliable work.”

    In order for law firms and justice systems to move forward, I believe it will be essential for organizations to view technology as a way to change not just the way things are done but HOW you can do things differently and WHY. Digital transformation is about new ways of thinking, changing things and moving to the future. I can just hear technology saying to lawyers and judges: “Oh won’t you embrace me?”

    Now – how do you further your firm down the digital transformation path?

    Cybersecurity

    COVID has only increased our working from home with distributed data sets on multiple devices and entry points into the office network. One way to harden your system is to put all your data in a secure cloud service that stores your data in a fully encrypted manner, where only you have the decryption key (a “Zero Knowledge” service). Cloudwards.net has rated the five best zero-knowledge cloud storage services — with Canada’s sync.com coming up on top.

    Advantages of Sync

    Sync is the strongest encryption possible, it demonstrates to your clients that security is important to you. Sync keeps track of all document versions and changes, you can share and collaborate just like you would with Dropbox, but securely, they state that sync.com meets global data privacy compliance (USA-HIPAA, EU, UK, CAN-PIPEDA) and your data remains in Canada.

    Automating and Integrating Systems

    Technology can automate the business side of the practice. By integrating billing, time keeping, general and trust accounting, calendaring, conflict checking, document automation, email and file integration, case management, and file management, you will set the stage for the next round of automation such as data analytics, AI, and process redesign for effectiveness and efficiency.

    People

    You can install the latest, first-rate tech systems but ultimately it may all be for naught unless you can implement change strategies that lead people to adopt the new systems. Part of the magic of digital transformation is the change in thinking that occurs when people use and think about how the new systems rework business processes. Leadership is the magic elixir. Explain why your firm is adopting these new systems. Outline the expected benefits, for not only the organization but also for staff. Be an early adopter and recruit other early adopters. Communicate wins. Acknowledge setbacks and handle criticism positively and early. Keep your eye on the long-term goal(s) and help others do the same.

    (originally published in PracticeTalk and TechTips, in the Canadian Bar Association’s BarTalk magazine:

    https://www.cbabc.org/BarTalk/Articles/2021/February/Columns/Digital-Transformation

    https://www.cbabc.org/BarTalk/Articles/2021/February/Columns/How-can-you-further-your-firm-down-the-digital-tra)

    Posted in Adding Value, Change Management, Firm Governance, Issues facing Law Firms, Law Firm Strategy, Leadership and Strategic Planning, Technology, Trends | Permalink | No Comments »
    Thoughtful Legal Management Announcement
    Thursday, March 17th, 2022
    Bald Eagle Haidi Gwaii (c) 2017 David J. Bilinsky

    Bald Eagle Haida Gawaii

    “I’ll spread my wings and learn how to fly. I’ll do what it takes ’til I touch the sky. And I’ll make a wish, take a chance, make a change and breakaway.” 

    Lyrics and Music by Matthew Gerrard, Bridget Benenate and Avril Lavigne, recorded by Kelly Clarkson.

    I am proud to announce that Thoughtful Legal Management is now open for business.

    David J. Bilinsky, Barrister & Solicitor, is pleased to provide strategic legal practice management services and innovative technology and law firm finance advisory services for my clients. Building on 17 years in private practice, 20 years of experience at a Practice Management Advisor and ethics lawyer for the Law Society of BC, on top on an MBA focused on the application of legal technology to the practice of law, I have opened the doors to providing legal business, technology and ethics advisory services to lawyers.

    Decades of  writing and presenting papers and articles, organizing and speaking at legal technology conferences, advising and assisting lawyers who have been wrestling with the complex areas of legal technology and practice management has provided unique and practical insights into how law firms must innovate in today’s changing environment.

    My mission in life is to empower lawyers to anticipate the changes, realize the opportunities, face the challenges and embrace the expanding possibilities of the application of practice management concepts to the practice of law in innovative ways that provide service excellence.

    And…I am here to assist those lawyers who wish to break away and learn how to fly.

    Posted in Adding Value, Budgeting, Change Management, Firm Governance, Issues facing Law Firms, Law Firm Strategy, Leadership and Strategic Planning, Technology, Tips, Trends | Permalink | No Comments »
    Criminal Law and Technology
    Monday, March 14th, 2022

    ♫ Sex crime, sex crime
    Nineteen eighty four
    Nineteen eighty four… ♫

    — Music & Lyrics by A. Lennox, D. A. Stewart, recorded by The Eurythmics.

    What will criminal law look like in 2041? There is a host of technologies being developed that are reshaping the entire criminal law playing field. From artificial intelligence (“AI”) to developments in surveillance, biometrics, DNA analysis, cellular triangulation, evidence analysis, voice recognition systems, advanced camera and image analysis and enhancement, Internet search technologies, the growth of the “dark web,” facial and voice recognition software, robotics, “shot spotter” technology, licence plate recognition, and many others that seem to walk out from CSI TV episodes and into our lives.

    Other emerging projects seek to use real time computer and pattern analysis to predict and prevent crime. Using a network of cameras and technologies, these projects seek to analyze and assess suspicious activity and predict emergent criminal behaviour, alerting authorities far faster than traditional methods.

    Still other projects seek to use AI to predict elder victims of financial and physical abuse, allowing authorities to intervene to prevent or stop such exploitation.

    Robots and drones can be utilized to inform police regarding potentially dangerous situations and assist with public safety without putting the public and/or police in harm’s way.

    DNA analysis is growing increasingly sophisticated; enhanced by the growth in forensic sciences.

    On the court side, there is the increased growth and development of court management computer systems worldwide and the increased realization of the benefits that such systems bring to the administration of criminal justice. There is the work of such academic and non-profit organizations worldwide such as HiiL (The Hague Institute for Innovation of Law) that combine a data and research-based approach and best practices to promote people-based access to justice solutions.

    Increasingly, courts world-wide are slowly gaining access to technology in order to present the range of high-tech evidence being collected by police and prosecutors working together. The Air India case in BC was a good example of a high-tech court designed around the needs of the Crown to present the volumes of video and documentary evidence that were amassed during the case efficiently and effectively.

    Then there is the growth of trial preparation and trial presentation software along with case management systems available to defence lawyers to assist in the handling and presentation of their cases. From simple PowerPoint files to sophisticated trial presentation software on iPads, tablets, laptops, and other devices, to transcript, audio and video analysis tools, and others, criminal defence lawyers can present, highlight, call-out, compare, present, and emphasize evidence in ways never before possible that serve their client’s needs.

    Technology is a tool. In the context of criminal law, it also raises ethical issues such as the due protection of privacy and the protection of constitutional rights. It raises issues of inherent bias built into algorithms and data analysis. There is the issue of transparency of such systems, as many will be proprietary and not open to analysis. Neural networks, quantum computing and other such emerging computing technologies are not well understood and, as such, explaining how they arrive at their conclusions may not even be possible. There is the danger of profiling and unfairly targeting individuals and/or groups. There is the danger of using systems to determine recidivism, particularly if someone is assessed at low risk and then goes on to commit violent acts.

    Nineteen Eighty-Four gave us one insight into how technology, applied for the wrong purposes, could be used to control a whole world. Criminal lawyers stand at the cross-roads, guarding against such excesses and protecting liberties. But to do so, they must understand the emerging high-tech landscape in order to exercise their persuasive powers against
    such misuses.

    So what technologies are out there for a criminal lawyer to run their practices?

    Trial Director is one of the leading trial presentation software packages available for trial lawyers.

    It allows you to load in all transcripts and video evidence and organize your evidence into trial notebooks.

    You can attach, view, and link exhibits and create a witness binder and exhibit lists.
    Evidence can be presented by video clip and documents sections can be called out, zoomed and highlighted. Document sections can be placed side by side for comparisons, overlaid, and section redacted if necessary.

    You can share document subsets securely with expert witnesses and consultants.
    Trial teams can share the same case notebook with team members who work from a central trial notebooks.

    TrialPad, TranscriptPad, DocReviewPad, ExhibitPad is a suite of litigation tools designed for use on an iPad. This suite of applications takes a litigator through the whole process of preparing for trial, including: document review, organizing documents for trial, loading exhibits with notes, reviewing transcripts, and then organizing it all into a trial notebook for presentation in court with dynamic exhibits, call-outs, and more.

    CosmoLex is a fully-integrated general and trust accounting system with practice management. This one-stop solution provides you with all the systems to be compliant with both general accounting (balance sheet, income statement, accounts payable and receivable, and all other required accounting reports) as well as trust accounting (compliant with all Law Society trust accounting requirements) plus practice management (client lists, file lists, conflict checks, limitation date reminders, calendaring and bring-forward reminders, document management, email management, etc.) that a criminal lawyer needs to run both the business as well as the practice sides of their practices.

    Microsoft Home and Business or Microsoft Office 365 provides you with desktop or cloud-based versions of Word, Excel, PowerPoint, Outlook, and more to perform all the email, communication, word processing, and other functions you will need as a practising lawyer. Alternatively, you can use the Apple suite that comes installed on a Mac (Pages, Numbers, Presentations, Mail) to accomplish the same functions in a Mac environment.

    sync.com provides you with secure file backup, storage, and sharing based in Canada. This is a secure alternative to Dropbox that protects your practice against Ransomwear.

    ScanSnap iX1500 is the scanning workhorse of the legal field. With full duplex scanning via its sheet feeder, the ScanSnap assists in taking paper documents and converting them into fully text-searchable documents that can take your practice paperless.

    Smartphone There are many excellent smartphones like the iPhone 13, Google Pixel 6, or Samsung Galaxy A32, depending on whether you prefer the iOS or Android environment. More important that the phone, I believe, is your choice of carrier and data plan. A litigator is on the road a lot: choose a carrier with great service in the area(s) where you will be operating most often to avoid dropped calls and poor reception.

    (originally published in PracticeTalk and TechTips, in the Canadian Bar Association’s BarTalk magazine: https://www.cbabc.org/BarTalk/Articles/2021/December/Columns/Criminal-Law-and-Technology and https://www.cbabc.org/BarTalk/Articles/2021/December/Columns/So-what-technologies-are-out-there-for-a-criminal)

    Posted in Change Management, Fraud and theft, Issues facing Law Firms, Law Firm Strategy, Leadership and Strategic Planning, Technology, Trends | Permalink | No Comments »