The Lawyerist has revived the dialog on the ethics of lawyers using free email services like Gmail. It’s good to see this debate continue, and I’ll state up-front that the Lawyerist disagrees with my opinion on the subject. I still hold the position that a lawyer using an e-mail system that includes granting “a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence” of the e-mail content to a third party is a problem. One of the Geeks recently shared this language with ethics counsel who laughed out-loud. His response was essentially that any lawyer who uses e-mail under this arrangement is crossing the line.
I realize bars and courts are still treating e-mail like it’s mail. To demonstrate this thinking I suggest you ask them the ethics question a bit differently. I like to turn these questions around and direct them at a paper process to see how they sound. In this case: Would it be OK to grant FedEx an irrevocable license to the content in all of a lawyer’s documents and letters it transports? I’m guessing you will get a different answer since Rule 1.6 is pretty clear on this issue: A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. FedEx agreeing not to show this content to other people would be irrelevant, since the act of ‘revealing’ has already occurred.
I’ll reiterate my prior advice to lawyers (and the Bar): if you want to hold yourself out as a profession with higher duties of care – then act like one.

[Please welcome Guest Blogger Colleen Cable from Cable&Clark, and blogger with Law Firm Bottom_Line]

Oftentimes we get stuck in a rut and just don’t know how to get out. I sometimes feel this way about the current status of law librarianship and how we communicate with firm management. This is especially true these days as we try to defend our budgets and perhaps our very existence in the organization.

So what should we do? Since most of us are in the same rut, I’m always a big fan of looking outside our profession or industry for inspiration and new ideas. Recently, I came across this video (also embedded below) on Twitter and it immediately resonated. The basic message from Laura Patterson is: impact not output. While the video and the topic might be geared toward redoing a marketing budget, the general message applies perfectly to law librarians. Like many, we typically think about the ‘numbers’ from an output perspective. For example, how many reference requests did we have during the month of February? How many new titles were added to the catalog this month? But I wonder if this is enough? Is this meaningful to anyone? Does it show value? It hasn’t worked, so how do we change the message?
In the video, Laura recommends focusing instead on these three things:

  • Acquiring new customers
  • Customer retention
  • Customer growth

This could be a real game-changer for librarians. Instead of the number of reference requests, what if we focused on increasing the number of new attorney users to a recently purchased product? How can we grow the customer base? You could then measure the cost of the subscription on per attorney basis and watch the value increase month over month. Another opportunity: We know that only a fraction of the potential customer base uses the library, so how can we acquire new customers and retain them? How can we expand our services to existing customers? How can we increase the IMPACT of the library on the organization?
Bottom line: stop measuring the ‘stuff’ we do and start measuring the outcomes we achieve.

I had the pleasure of hearing Paul Beach, Associate General Counsel for Litigation for United Technologies Corporation (UTC) give a wonderful and informative presentation on AFAs. Bottom-line: Paul and UTC have it right when it comes to AFAs. In concert with AFAs, Paul talked a lot about value. In addition to what provides value, Paul gave a list of things firms do that they think provide value to clients, but really don’t – at least for him. Here is my abbreviated and paraphrased list:
#1 – Firms send him long “experience” lists, showing what cases they have handled and how they won them. He estimate somewhere between 50 to 95% of these cases are not worth mentioning. He views them as too much information, and information he doesn’t necessarily trust and really doesn’t value. As he said it, lawyers typically talk about every case as a win, since a resolution is a win. I read that as – don’t send him long experience lists or don’t even send him a list at all unless it’s relevant/valuable to the situation.
#2 – Don’t send him hard-copy, leather-bound books authored by firm lawyers. He described these as “too heavy, with no search function.” He mentioned one he received that already had a pocket-part inserted. He read that as “out-of-date.” Books are knowledge that is not shareable, current or mobile. Even with the leather – he was not impressed.
#3 – Billing him for providing training for his internal staff. Enough said.
#4 – Entertainment or gifts. Most legal departments are charged with enforcing Procurement’s rules, which state, “no gifts from vendors.” So why are you offering gifts to the Legal Dept.?
#5 – Writing off time. This one was his “favorite.” When a lawyer calls him and tells him that a lot of time was written-off, he assumes they are trying to impress him by voluntarily reducing waste from his bill. Instead, what he hears is that they don’t know what they’re doing. It’s an indicator of bad process and bad management.
So … in addition to truly getting AFAs, Paul also knows how to ‘cut to the chase’ on what value means.
Bravo Paul.

When you’re at the proverbial cocktail party, and someone asks you what you do, do you have an answer? As a professional in a field known by virtually no one (knowledge management), I can tell you that one of the situations I used to fear most was getting the dreaded “what do you do?” question. It sounds so innocent, doesn’t it? And yet it used to set my mental cogs into a twisting, mostly downward, spiral. I had no idea how to answer that question (a) briefly [in case the person isn’t really that interested], (b) coherently [so that I don’t sound like I’m making it up], and (c) substantively [so that I actually answer the person’s question and explain what I do]. But about a year ago, I finally came up with my elevator speech — a way of describing what I do briefly, coherently, and substantively. This is quite a point of pride for me not only because it took me so long to figure out, but also because I’ve found that my speech actually works! Each time I share it to respond to the “what do you do?” question, I’ve been greeted in return with genuine understanding, and even an interest in hearing more. So, what is this 30-second pitch I’ve developed? Well, here you go — I explain that: “What I do is parallel to what Google did for the web. All the websites it searches already existed and were already out there available to be viewed, but suddenly with Google people were able to find those websites much more easily.” One of the reasons I like the comparison for the layperson of knowledge management to Google is that it leverages the distinction between access to content and the content itself that, prior to Google, most people simply did not get, but which Google has since made infamous. Certainly one part of knowledge management is content development and aggregation, but that part is typically easier to explain. The aspect that always tripped me up in the past was how to express the access part of knowledge management. I could say I design, build, and launch a tool that searches; a tool that files email; a new portal; a practice toolkit; a tool that tags documents; a more streamlined process to create documents; etc etc… but listing out projects is hardly the right response at that party to the person asking what you do. So I’m pleased to say that I now have an elevator speech. But I’m always interested in hearing how others describe what they do to those completely outside the legal industry. So if you have an elevator speech too, please comment here and share it with me.

We (IT) are getting more and more pressure to develop systems that enable the client to interact with the Firm in what is being coined as a “real time” or near real time basis.  The technology to communicate in real time has been around for many years, we call that technology a telephone.  You have a phone, pick it up and talk to the client. 
Clearly there is value in extranets that allow a client to track budgets or share documents, but they are allowing lawyers to stray away from one of the most important aspects of their relationship with their client – personal interaction.  
Using technology to stay in touch with your client is like trying to teach your child to drive a car via twitter.  

Parent to child:  Here Johnny, follow this link to understand your blind spots.  

Attorney to client:  Hey client, I just posted a link on your extranet that relates to your case.  Read it at your leisure.  

Talk about a warm fuzzy!  Why not pick up the phone and demonstrate to the client not only your understanding of the law, but your understanding of the client’s business?
Clients want lawyers who understand the client’s business.  I don’t mean understand in the basic sense; I mean know their business like you know the law.  How does a busy lawyer keep current on their client’s business?  You do not want to bug the client to educate you.  You want to impress the client with your understanding.  This is where technology can really help.
You want to impress your clients?  Figure out what technology they use to keep current and use that technology.  Find out if the GC (CEO, CFO, decision makers) for your client uses twitter, reads RSS feeds, subscribes to newspapers, etc. and do the same.  Become an active contributor to areas that the client will read.  Twitter is a great way to do this.  By leveraging twitter, I’m able to keep current with many areas where I would otherwise have no exposure.  And within the twitter world, I’m able to interact with people I would otherwise not know.  These interactions help build stronger business relationships.  It’s important to contribute to the dialog no matter where that dialog is taking place.  If you aren’t part of the conversation, someone else is.  And trust me, your client is listening.
I interact with many people on twitter.  None of those people are going to hire me based solely on my interaction with them on twitter.  The people that would consider hiring me are the people that know me from some other interaction.  However, what I contribute does help shape the way I am known and perceived.  If it comes down to a couple of candidates, one who participates in such a dialog and one who does not, you can bet the participator will get the advantage.  Why?  Because he or she was part of the conversation. 
Does technology help build a bond between client and law firm?  No.  Technology helps deliver information in a timely manner.  You build bonds through personal interaction.
Technology is not your friend, your client is, but technology can be a tipping point.

Steven B. Roosa, partner with ReedSmith, wrote an enlightening client alert yesterday explaining that in the business world that requires secure communications over the Internet, it requires the company’s General Counsel to step up to that task. The alert focuses on attacks on electronic information conducted through websites that use the “Certificate of Authority Trust Model” (CA Trust Model). Once you read Roosa’s explanation of the holes found in the CA Trust Model, it will make you think twice about just how secure your electronic transactions really are.

Roosa points out that there are three major flaws in the CA Trust Model:

  1. Way too many CA providers.
    Your browser trust more than 100 by default.
    There are over 600 global CA providers.
    Some are connected to governments or quasi-governments that you wouldn’t want to deal with.
  2. Even legitimate CA providers have proven themselves incompetent in providing secure transactions.
    They poorly configure their digital certificates.
    They’ve issued digital certificates without checking if the entity requesting it is legitimate.
  3. Any of the CA providers can issue bogus, yet technically valid digital certificates to any website.
    In other words, a crafty hacker could be issued a legitimate digital certificate for a legitimate bank, even though the hacker has no relationship with the bank.
With all of these issues surrounding how secured, encrypted communications on the web, Roosa advice for General Counsels is that they work along side their IT departments to make sure that they do not leave themselves open for “phishing” or “man in the middle” types of attacks that can come from untrustworthy CA providers:

As an initial matter, it is important for General Counsel to determine which outside organizations can be trusted with the security of the organization. Although the IT department should certainly be involved as well, it is a task that is most appropriate for General Counsel because it requires legal and investigative resources to: assess the criminal and regulatory background of the CAs, analyze affiliations with state actors and quasi-governmental entities, and determine the governing law that controls the CAs’ conduct. The goal is for the organization to configure its browser platform so as to trust as few CAs as possible, and to “untrust” those CAs deemed to be unnecessary or untrustworthy. Additionally, the IT department may wish to explore the use of various plug-ins and software add-ons to assist in the detection of CA irregularities and CA-based attacks. Finally, businesses can also engage a CA in dialogue regarding the CA’s practices, both with respect to adherence to best practices, and also to address the issue of whether, or to what extent, the CA trusts other CAs. 

Seems like solid advice. I’m wondering how many GC’s will actually follow this advice and work along side their CIO’s to identify which CA providers are trustworthy and which are not remains to be seen. I’d suggest that CIO’s need to send a copy of Roosa’s article over to their GC’s to stress the importance of working together on this one.

I recently had the privilege of participating in a mentoring session given by a senior partner in my firm.  This partner is a consummate rainmaker and he was sharing how he approaches finding opportunities.  In essence, he is always looking for opportunities to make connections with people.  He talked about making the effort to provide answers even if the answer is connecting someone with a problem with another attorney.  He said “the attorney will not forget that you provided an opportunity and will reciprocate eventually and the person with a problem will see you as a problem solver”.  He went on to say, “even if the problem has nothing to do with legal services, offer a solution.  If the problem has to do with plumbing issues, find a plumber”.  This partner explained these ideas in very simple terms.  Easy to digest and even easier to implement.
The concepts and approaches he describes are even more relevant today, but the techniques are changing.  

Today, an attorney needs to know how to leverage social networking as a way to become “part of the conversation”.  

While the Internet has certainly changed the concept of community, it does not change the essence of being a trusted advisor.  Toby helped me understand the notion of “being part of the conversation” as a differentiator.  His point, more and more people are turning to the Internet to find quick answers.  

If they don’t hear your voice as part of the conversation, they will not know you are part of the community.  

As Toby usually does, he started explaining this by drawing a picture.  That picture is elegantly displayed in my office and usually becomes a point of discussion.  It is a constant reminder to me and serves as an opportunity for me to educate others around me about the power of the virtual community that has come to be known as social networking.
Have your voice heard, get involved, become part of the community and contribute to the conversation.  Provide your thoughts and share your interests.  Give a little, get a little.

[Guest Blogger Mark Gediman]

There has been a lot of discussion lately regarding AALL committees, services and programs.  What seems to missing from some of this discussion is a desire to see constructive change.  In my mind, it isn’t enough to identify a problem, you need to also show a desire to fix the problem.  The tone of this debate may be as important as the actual debate.

Anyone with kids knows that it isn’t enough to point a finger at someone and say it’s the other person’s fault.  I know with my kids,  the one who says “no” to a suggestion without making one of their own automatically loses the debate.  In order for any discussion to succeed, it needs to be structured as a dialog, not a diatribe. Not doing so forces the singled out parties to be defensive and not willing to listen to what the other person has to say.  This does not allow for a constructive debate.  As someone who has contributed to the discussion, I can say from experience that you get further presenting your issue as a discussion.

AALL is an organization that is made up of different groups, and more importantly, individuals.  It can only evolve through the involvement of the individuals collaborating together for change.  I am proud to be a member of such a diverse organization that is made up of people that are genuinely committed to the growth of the profession.  They may stumble along the way, but it is our job as members to help them as they go along.  This is what makes the organization valuable to both the profession and its individual members.  So much for my two cents.

I’ve seen a couple of articles on VaporStream’s “Electronic Conversation Software”. The idea is that you can send communications that look a lot like e-mail, but the communication is temporary, exists in the cloud, and resides in your computers RAM (temporary memory). Once the communication is over, it disappears and cannot be recovered, even through e-discovery methods. The product is pitched as a great resource for reducing e-mail server storage, reduce the cost of potential e-discovery litigation, and satisfy the two tenants of HIPPA requirements. I took a quick look at it this morning and found that it is more of an Instant Messaging (IM) replacement than an e-mail replacement, but that it looks to have some good uses.

When I first read about this in itWorldCanda, and then again in ECM Connection, the articles were structured in a way that made me think that this was something that could potentially replace e-mail. I started dreaming of a situation where all those crappy vendor emails that I get ALL DAY LONG, could vanish automatically after I read/skimmed/ignore them. However, I quickly learned that you could only send or receive communicate with others that are also on the VaporStream software. So, my visions of a magic vendor communications fell to the wayside.

So here’s the reader’s digest version of how the product works:

  1. Sign-up for VaporStream’s service (free 60-day trial… $7.50/mth after that).
  2. Get everyone that you want to have confidential, temporary communications with to also sign up.
  3. Use VaporStream’s web or app interface to send and receive communications from other VaporStream users.
  4. The messages are sent and read via SSL (secure) through VaporStream’s interface, and reside in your computers temporary memory (RAM).
  5. When done, the message disappears and cannot be recovered.
VaporStream attempts to electronically recreate a “verbal conversation” using IM or e-mail structure. The only way to “save” the communication would be to take a screenshot of the message, but even that doesn’t get all of the communication because the header and messages are sent separately (thus, you’d have to take two snapshots, and tie them together.) There could be a great advantage to having something like this set up between members of your department or firm, but again, it is more of a compliment to current tools like e-mail or IM, and not necessarily a replacement for either. 
I could see a product like VaporStream being used on internal communications where you want to let others know certain things, but don’t necessarily want to clutter up everyone’s e-mail in-box, or have the issues that surround communicating via IM (if you’re even allowed to do such a thing.) Perhaps there are certain clients that would like a product like this to communicate on sensitive matters that you don’t want to leave any type of communication trail… I’ll let you think about the ethical “slippery slope” that something like that might bring.
VaporStream is definitely worth a look, and should be brought up as a potential secure communications resource that could be used in the right situation.

Today’s my last day in New York and I’m ready to get back to Houston where the bathtubs don’t sit in the middle of my living room, surrounded by two walls of plate glass windows, overlooking a park full of joggers. As I mentioned earlier this week, a few bloggers were asked to come to NYC to take a fresh look at Wolters Kluwer (WK) IntelliConnect product and give them some feedback about what we thought about it. I’ll give a more in-depth review later, but I did want to make some comments of what I thought about the people I met with yesterday. 

The meeting was held on the WK training floor, there were four bloggers including me, and about eight or nine WK folks. After a short introduction and an overview of the product, we started having a real conversation about what was good, what needed fixing, and where the product and market were heading in the future. All of us seeded to have had some lightbulb moments throughout the day where some of our preconceived notions were challenged and most of us walked away at the end of the day a little better understanding of each other. 

Wolters Kluwer is going through a transition right now where it is attempting to move away from being a ‘holding company’, to one that is integrating all of its different acquisitions into one platform.  As many of us remember, WK’s IntelliConnect had a number of problems on its initial launch last year, and has been scrambling to regain its footing after stumbling out of the gate. I specifically  asked them if they understood the image problem they had from some of its users, and they all said that they do understand that, and that was one of the reasons they asked us to be there.

One of the notions I had to overcome was the fact that IntelliConnect is not a legal research tool in the same way that Westlaw or Lexis is designed. IntelliConnect is designed for ‘power users’ in specific legal practices. It was interesting listening to the conversations between the bloggers telling WK that they need to make changes in the interface to work in a way that younger associates expect their online research to look and feel. At the same time, WK kept coming back at us with the fact that the product was developed to work the way that their advanced users wanted… And that was to make it more like using the books than using online research. That brought up the question that none of us could find a simple answer to, and that was how do you balance the needs of researchers that on one end of the spectrum are traditional treatise-in-the-books kind of researchers versus the incoming Google ‘give me a search box and let me go’ type researchers? That seems to be the $64,000 question… Which is probably how much this bathtub in my hotel room costs.