To:       C. Grice McMullan

From:   Douglass Dewing, Subcommittee Chair

Date:    October 3, 2006

The following items related to technology and law may be of interest to the membership.

GENERAL ASSEMBLY 2007

The General Assembly 2007 Session begins January 10, 2007.  Bills and Resolutions can be searched, reviewed, and tracked using the Legislative Information System website at http://leg1.state.va.us/071/lis. htm.  The website shows 377 bills carried over from 2006.

The 2006 Session re-enacted The Uniform Real Property Electronic Recording Act, which was required before it would become effective.  Acts of Assembly 2006, Ch. 745.  It also tweaked the Settlement Agent Release Act provisions to accommodate electronic recording.  Acts of Assembly 2006, Ch. 907.  In preparation for the 2007 session, studies were authorized regarding electronic notaries and electronic land records.

Similar issues are being discussed on the west coast.  Consider, for example, the Notice of Proposed Rulemaking for Electronic Recording in California's 58 counties.  The public comment period closed October 24, 2006 at 5:00 p.m., and a public hearing was scheduled for October 24, 2006 in Sacramento, California.  The State Attorney General's Office recently submitted proposed regulations to administer the Electronic Recording Delivery Act of 2004 to the Office of Administrative Law. The Act provides for development of a system to permit electronic delivery, recording, and return of instruments affecting right, title, or interest in real property in California.

Under the Act, a County Recorder may establish an electronic recording delivery system if authorized by resolution of the Board of Supervisors and system certification is obtained from the Attorney General. The AG monitors the security of an electronic recording delivery system in cooperation with County Recorders and public prosecutors.

The Act requires that the AG adopt relevant regulations (in consultation with interested parties) that include baseline technological and procedural specifications; requirements for security, capacity, reliability, and uniformity; requirements for uniform index information on all digitized or digital electronic records; and requirements for protecting proprietary information from public disclosure.

The proposed regulations include provisions on scope, definitions, fees, fingerprinting and criminal record checks, minimum baseline technological requirements, certification requirements, computer security auditor criteria, "vendor of system software" criteria, and audits and oversight. The regulations also cover local inspections, incident reporting, and suspension and termination of certificates.

The proposed text of the California regulations and the Initial Statement of Reasons may be accessed at the DOJ-ERDS web page at http://ag.ca.gov/erds1/index.htm (9/8/06 Notice, links on p. 9) or obtained by contacting the ERDS program at 916-227-8907.

N.Y. PROPOSAL WOULD DESIGNATE LAWYER BLOGS AS ADVERTISING

By Stephanie Francis Ward

The legal blogs are boiling:

• "We go around passing rules that make us look like idiots."

• "We continue to handicap and bring everyone into the trenches."

• "The small firm can’t afford [this]." 

The storm was set off by a proposal (http://www.nycourts.gov/rules/1200-6.pdf) that "computer-accessed communications" such as blogs be included in New York’s definition of legal advertising and therefore require state scrutiny. The proposal, developed by a committee created by the state’s Administrative Board of Courts, also suggests (http://www.nycourts.gov/rules/1200-5-a.pdf) the state code of professional responsibility extend court jurisdiction to out-of-state legal advertising that appears in New York.  See http://www.abanet.org/journal/ereport/s29blog.html.

DESIGN YOUR OFFICE WITH TECHNOLOGY IN MIND

When renovating or moving a law office, think about what technology systems are in use or planned to be implemented in your office; they will affect suitability and choice of building design. Technology systems deserve careful analysis early in the planning process. How can you point your design plan in the right direction? Read on for a short checklist.

To move your building design plan in the right direction, consider the following:

1.        Build flexibly, so that you accommodate technology that is current on your moving day, as well as your best estimate of technology you will adopt later. Carefully consider your specific needs for technology infrastructure, mobility, comfort, security, and connectivity, and be certain that your building and ancillary spaces can accommodate specific requirements.

2.        Consider using technologies from industry leaders. Moving or reworking your office provides a fine opportunity to review systems needs, and whatever drives your move will likely change your technology needs. Presuming that the leading systems may be more stable and backward-compatible, minimizing future changes to your technological infrastructure tends to produce a corresponding stability in your longer-range building needs. In any case, give preference to scalable systems that can grow or change with the firm because they minimize changes to your infrastructure and your building. The longer a system remains useful and supported by the seller, the less likely it is your space needs will change in response to system changes.

3.        Allow for changing work styles in a new technological environment. Technology companies are working to develop products that are less dependent on building configurations. Make the most of their products. Wireless technologies, if secure, can save infrastructure costs. At relatively low costs, the storage capacity of our computers and other appliances is growing by leaps and bounds, increasing the efficiency and independence of our machinery. Some especially noteworthy improvements are becoming available in the form of inexpensive large-capacity hard drives, in video monitor technology, and radio frequency identification gear.

4.        Consider space outsourcing. If technologies make it possible, move functions to cheaper space. Space costs are part of document handling, and automation of document handling can save on the cost of building space, as well as providing improved information management, retrieval, and storage. Technology solutions can expand the usability of law firm conference rooms and multipurpose rooms.”

Suzette S. Schultz & Jon S. Shultz, The Complete Guide to Designing Your Law Office (ABA Law Practice Management Section 2005),
available at http://www.abanet.org/abastore/books/inside_practice/2006/sept/designtechoffice.html.

AVAILABLE FROM ABA BOOKS

Carole A. Levitt & Mark E. Rosch, The Lawyer's Guide to Fact Finding on the Internet

(3d ed. 2006)

"Internet research books abound, but this one provides a practical, thorough, and organized approach tailored to the precise needs of busy practitioner s . . . a valuable addition to the lawyer's bookshelf." —Ann Puckett, Director of the Law Library and Professor of Law, University of Georgia.

This up-to-date and expanded third edition is a complete hands-on guide that shares the secrets, shortcuts, and realities of conducting fact finding on the Internet. Written for legal professionals, this comprehensive desk reference lists, categorizes, and describes hundreds of free and fee-based Internet sites. Useful for investigations, depositions, and trial presentations, as well as company and medical research, gathering competitive intelligence, finding expert witnesses, and fact checking of all kinds. The book also includes information on browsers, search engines, Weblogs, library databases, public records, and much, much more. In addition, the accompanying CD-ROM features all the links contained in the book in one handy PDF file. Find the link you're looking for, and click on the hyperlink to take you there—no typing of URLs required!  
See http://www.abanet.org/abastore/index.cfm?section=newbooks&fm=Product.AddToCart&pid=5110568

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DISCOVERY IN AN ELECTRONIC AGE:

BEST PRACTICES IN E-DISCOVERY POST-ZUBULAKE AND IN THE

SHADOW OF NEW FEDERAL RULES

Electronic Discovery Teleconference (Wednesday, September 27, 2006)

Severe sanctions for electronic discovery abuses and new federal rules regulating e-discovery are changing the landscape of civil litigation. This teleconference addresses best practices for litigators, records retention issues for employers, and remedies when electronic evidence has not been preserved. The panel debates a series of real world problems in which plaintiffs make discovery demands, defense lawyers counsel their clients, and the parties argue before the court.  See http://www.abanet.org/cle/programs/t06edz1.html

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Seen in a VBA E-mail:

Legal Technology News (“The Profession’s Largest Tech Publication”) summarizes the American Bar Association's 2006 Legal Technology Survey (see http://www.lawtechnews.com/r5/showkiosk.asp?listing_id=1188530&pub_id=5173&category_id=27902),

noting that many survey respondents, when offered the chance to identify places in which they use their PDAs, smartphones, or BlackBerrys, wrote, "everywhere." One respondent even composed a Dr. Seuss-ian rhyme about where he uses his mobile device: "In the elevator, in the hall, with a friend or in the stall, in the park or in the dark, I can use it here or there, I can use it anywhere."  Around here, we call the familiar posture of head down, hands in the lap under the conference table, the “Blackberry prayer.”

ADRIENNE C. NELSON, MY FIRST BLACKBERRY: A NEOPHYTE'S TALE

(ABA Law Practice Management 2006)

See http://www.abanet.org/lpm/magazine/articles/v32/is5/an6.shtml for a light, but informative, narrative about a technological neophyte’s try-out of a BlackBerry.

CONTRACTING FOR INFORMATION SECURITY & PRIVACY RISKS: WHAT EVERY GENERAL COUNSEL AND TRANSACTIONAL ATTORNEY NEEDS TO KNOW ABOUT INFORMATION SECURITY

See http://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=CET06SPRI.

Regardless of your experience level, this program will provide you with guidance on how to approach information security when entering into a third-party contract involving the transfer of or access to sensitive information (information exchange transaction).  

Despite the crucial importance of network technology in the conduct of modern business and the potential exposure of sensitive information assets and client data, information security and privacy are areas that are often foreign to most attorneys.

The serious nature of information security and privacy is highlighted by recent laws and regulations enacted on the state, federal, and international level. Attorneys have an important role in assessing and contractually managing information security and privacy threats that exist in a company's every transaction.

Building beyond the basics, the faculty discuss "typical" information security contract terms and strategies for the implementation of contract terms across an organization. After listening to the program and reviewing the course materials, you will be able to:

• Explain applicable information security standards  

• Utilize risk management methodology to identify information security issues

• Collaborate with information security professionals when assessing another party's information security controls

This online course includes written course materials.

Tom Mighell, A Road Warrior's Guide to Mobile Security,

32 Practice Magazine, July/Aug. 2006, at 36.

Nowadays, it's hard to walk into a hearing, meeting, or deposition and see a lawyer who isn't using some form of mobile technology. Use of laptops, smart phones, tablet PCs, and BlackBerry devices has greatly increased in the past few years, providing lawyers with an amazing set of tools to better serve their clients, both at home and on the road. “[W]e now have the power to access vital practice information from almost anywhere. But [as the saying goes,] with great power comes great responsibility.”  Id.

Just as you need to take care to protect the client data inside your office, so also must you be cautious when using technology while traveling or out of the office in general. In fact, you need to exercise special precautions, given the security issues involved in making on-the-road Internet connections and the theft-friendly nature of lightweight portable devices. Consider that hundreds of thousands of laptops and handhelds are lost or stolen every year, resulting in the loss of millions of dollars worth of proprietary information—and, in the case of lawyers, confidential client data—and you'll get the point.

Yet with a little common sense, awareness and advance planning, you can take your technology on the road with relative security. To help ensure that your journeys are safe, here is a brief guide to mobile security for road warriors.  See http://www.abanet.org/lpm/magazine/articles/v32/is5/an1.shtml.

THE BEST OF ABA TECHSHOW

David Bilinsky, How Hard is Your Tech Dollar Working?  The Real Return on Investment

“This article will explore different definitions and ways of determining the financial payback on your investment in technology. If done correctly, you should be able to forecast potential benefits and avoid the pitfalls associated with the implementation of new technology that is not a good match for your firm's needs.”  http://www.abanet.org/1pm/1pt/archives/september06.shtml.

Patrick Della Valle, Law Firm Web Sites: Some Common Mistakes

Is your firm's web site as effective as it could be? Learn how to avoid and correct the most common flaws in law firm web site design.  See http://www.abanet.org/lpm/lpt/articles/tch09061.shtml.

James Grippando, Leapholes (ABA Criminal Justice Section 2006)

For the first time in its 127-year history, the American Bar Association is publishing a novel for young adults. Leapholes is the story of Ryan Coolidge, a boy who hates middle school and who is in the worst kind of trouble—trouble with the law. Guided by a mysterious lawyer named Hezekiah, they do their legal research by zooming through "leapholes," physically entering the law books, and coming face-to-face with actual people from some of our nation's most famous cases—like Rosa Parks and Dred Scott—who will help Ryan defend himself in court. Written by the national bestselling author James Grippando, Leapholes is packed with the pacing and suspense of a legal thriller.