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Category: Technology Developments and Issues
Recently, the American Bar Association released its annual technology survey, a comprehensive report that explores how attorneys are using technology. It revealed some troubling trends. The finding of most concern is that nearly half of the respondents indicated their belief that they were not ethically required to stay apprised of legal technology developments, or that they were unclear regarding their ethical duties. In fact, the ABA formally approved a change to Rule 1.1 of the Model Rules of Professional Conduct in 2012 that clarified that a lawyer’s ethical duty of competence requires knowledge of technology related to their practice. Since that time, approximately half of the states have adopted the revised rule, which provides: “Maintaining Competence To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” Indeed, an attorney’s lack of familiarity with relevant technology may subject him/her to sanctions and ethical violations, even in a state that has not adopted the revised ABA Rule. For example, California’s Professional Responsibility Committee opined...
In the last 10 years, robotic surgical systems have revolutionized the way doctors approach minimally invasive surgery, especially laparoscopic and arthroscopic procedures. AI-enabled systems can also provide doctors with suggestions based on symptoms, learning from medical diagnoses and the outcomes of the symptoms. As with medicine, the field of law will be revolutionized in the coming years by the application of AI-enabled systems and networks to the practice of law.
Regulations Proposed by NY Department of Financial Services are a Significant Development for Regulated Entities … and Everyone Else
On September 13, 2016, New York Governor Andrew M. Cuomo announced new first-in-the-nation proposed regulations to protect against the ever growing threat of cyber-attacks in the financial services industry. The proposed regulations, to be enforced by the New York State Department of Financial Services, would apply only to an entity regulated by the NY Department of Financial Services – from a multi-national bank to a “mom-and-pop” operation. However, the regulations are important for all companies to review and consider, regardless of their location or scope of operations, because the proposal represents an important step in the ongoing national dialogue about reasonable and necessary cybersecurity standards for all businesses.
Court Compels Arbitration of Lawsuit Filed by Employees Discharged After Discovery of Personal Text Messages About a Coworker on a Company-Issued iPad
A recent decision from the District of New Jersey granting a motion to compel arbitration not only reinforces the strong federal policy in favor of arbitration, but also highlights issues pertaining to company-issued devices and employees’ personal use of these devices. While employed by Anheuser-Busch, Victor Nascimento received a company-issued iPad. Nascimento and other employees exchanged text messages about a coworker over their personal cell phones outside of the work day, but the messages were received on Nascimento’s company-issued iPad because the iTunes account on his iPad was linked to his personal cell phone.
As previously noted, in response to the European Court of Justice ruling in Schrems v. Data Protection Commissioner (Case C-362/14) striking down as inadequate the so-called “safe harbor” agreement that existed for more than a decade, the EU Commission and U.S. Department of Justice announced the framework of a deal to allow transatlantic data transfers between the EU and U.S. without running afoul of Europe’s strict data protection directives. Described as the EU-U.S. “Privacy Shield” agreement, that framework has now been vetted by EU Member States, modified in certain respects, and formally adopted on July 12, 2016 by the European Commission.
Anyone reading recent headlines knows that Apple, Inc. is engaged in a legal, and ultimately political, struggle with the U.S. Government over access to the cell phone of Syed Rizwan Farook, one of the shooters in the December 2, 2015 terror attack at the Inland Regional Center in San Bernardino, California. The core issue in that California proceeding is whether Apple should be forced to “create and load Apple-signed software onto the subject iPhone device to circumvent the security and anti-tampering features of the device in order to enable the government to hack the passcode to obtain access to the protected data contained therein.”
New “Privacy Shield” Agreement Seeks to Resurrect a Safe Harbor for EU-U.S. Data Transfers – Can it Succeed?
On February 2, 2016, the EU Commission and U.S. Department of Justice announced the framework of a deal to allow transatlantic data transfers between the EU and U.S. without running afoul of Europe’s strict data protection directives. It was appropriate that the announcement came on Groundhog Day, because we have been here before.
Attorney competence is currently one of the most-discussed issues in e-discovery. Not surprisingly, much attention has been paid to the proposed ethics opinion issued last year by the State Bar of California that addresses an attorney’s ethical duties in the handling of the discovery of ESI. (See e.g., our previous blog post summarizing topics addressed at the Gibbons Eighth Annual E-Discovery Conference.) In response to several critical comments received during the public comment period, the California Bar’s Standing Committee on Professional Responsibility and Conduct met in December 2014 and issued a revised version of Proposed Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests). The public comment period for the revised version of the proposed opinion ends on April 9, 2015.
E-Discovery Year-in-Review 2014: Panel at Gibbons Eighth Annual E-Discovery Conference Discusses Recent Developments, Issues, and Trends
On December 5, 2014, Gibbons hosted its Eighth Annual E-Discovery Conference. The day’s first session discussed the year’s significant developments and featured panelists Michael Arkfeld, Principal at Arkfeld & Associates, and two Gibbons E-Discovery Task Force members; Director Jennifer Hradil and Associate Michael Landis.