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Saturday, September 15, marks the independence day of five Latin American countries: Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua. Mexico, Chile, and Belize follow shortly after, on the 16th, 18th and 21st. The Harris County Law Library extends Happy Independence Day wishes to the more than 57 million Americans, and roughly 11 million Texans, who claim Hispanic roots. We would also like to commemorate Hispanic Heritage Month, which runs from September 15 through October 15, by recognizing the contributions of several of our era’s high-profile Hispanic lawyers, including Supreme Court Justice Sonia Sotomayor; former Attorney General Alberto Gonzales; United States Senators Ted Cruz and Marco Rubio; New Mexico Governor, Susana Martinez; and former Director of Intergovernmental Affairs under President Obama, Cecilia Muñoz. We also honor the trailblazers who came before, including the rich history of Latina and Latino lawyers practicing before the United States Supreme Court.
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In recent weeks, stories about tech in the practice of law have been filling our news feeds. Our last Tech Tuesday blog post focused on high profile failures and flubs. Today's stories reveal more productive uses of technology while demonstrating how the everyday online communication tools we now use are transforming the practice of law.
Lawyers are employing technology in novel ways to serve process and consult with colleagues. As described below, the authorities that govern these developments -- legislation, court rules, case law, and ethics opinions -- are (slowly) evolving as well. Twitter and Facebook are at center stage in these new approaches, as is digital communication itself. From the social media tools we use to the new literacy we've developed (e.g., abbreviations, emoticons, emoji, Bitmoji, stickers, memes, and more), tech is changing the law.
Earlier this month, a law firm representing the Democratic National Convention used Twitter to serve legal documents on WikiLeaks, an international nonprofit organization that facilitates the release of classified information, obtained from anonymous sources, via its website. Aside from the high profile parties to the case and the controversial claims it makes, the newsworthy aspect of this story, particularly for those in the legal field, is that the subpoena was served with a tweet. According to the Federal Rules of Civil Procedure, a court may serve an individual in another country through a number of channels, and although service by social media is not addressed specifically, Rule 4(f)(3) does allow for service "by other means not prohibited by international agreement, as the court orders." The Texas Rules of Civil Procedure include a similar provision. Rule 106(b)(2) states that a court may authorize service "in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit."
This may be a first for Twitter, but Facebook has been used a number of times to legally notify a hard-to-locate party. In a 2015 New York divorce case, a woman was permitted to serve her estranged husband through Facebook. A New Jersey court relied on that decision to allow the same method of legal notice in a similar case later that year.
Routine use of social media as an alternative method of service is still a topic of debate, but plenty of digital ink has been spilled discussing its benefits and risks. In 2013, a bill was introduced in the Texas legislature to allow substituted service through social media websites, but the bill was never referred to a committee, and the topic hasn't been addressed since.
Just weeks ago, the State Bar of Texas Professional Ethics Committee considered this question: Can lawyers use social media to seek advice from other attorneys without violating the Texas Disciplinary Rules of Professional Conduct? According to the Committee, the answer is a qualified Yes. Attorneys may consult with their lawyer colleagues and seek their professional advice regarding client-related issues in online forums if and only if they honor their duty of confidentiality and respect the attorney-client privilege. The best source for further exploration of this topic is, of course, the opinion itself along with this report from the Texas Lawyer which provides an excellent overview of the State Bar's newly sanctioned activity.
The Seventh Circuit Court of Appeals recently published an opinion that included the poop emoji. There's almost nothing worthwhile to say about its appearance in this opinion except to recognize it as a historic first. To be fair, the poop emoji appeared as part of a quote from a message shared via Facebook. It was submitted as evidence in an employment discrimination case that ultimately hinged on the content of the quoted message. As it turns out, the use of emoji in employment suits has been discussed before. Legal scholars have also weighed in about emoji and the law and emoji as evidence, topics which are explored in the articles linked below.
- Emoji as Language and Their Place Outside American Copyright Law (NYU Journal of Property & Entertainment Law)
- The Emoji Factor: Humanizing the Emerging Law of Digital Speech (Tennessee Law Review)
- Your Clients Use of Emoji: It Matters (Ingham County Bar Association BRIEFS)
In recent months, stories about the use -- or misuse -- of technology have been filling social media news feeds. Some of these flubs, committed by those unfamiliar with basic technology, have caused great embarrassment; public ridicule by news media, Twitter trolls, and Facebook users has not been the worst outcome, however, as the examples here will show. These cautionary tales about the importance of developing basic tech competency reinforce the growing imperative for lawyers to stay current in tech.
In an attempt to misrepresent the profits and losses of his company, President Trump's former campaign manager, Paul Manafort, allegedly emailed falsified financial documents to his assistant, Rick Gates, thereby creating an incriminating paper trail that resulted in Mr. Manafort's indictment on February 22, 2018. Details of his document-doctoring efforts and his motivation for manipulating his company’s earnings have been covered extensively in any number of news publications, but the important takeaway for those of us in the real world is this: knowing the benefits and risks of using technology is a must. Mr. Manafort's lack of sophistication in using basic tech undoubtedly contributed to his legal trouble because he himself unwittingly preserved the digital evidence of his alleged crimes. Specific proof that he and Mr. Gates falsified financial documents is noted in the indictment as follows:
“Manafort emailed Gates a .pdf version of the real 2016 DMI P&L, which showed a loss of more than $600,000. Gates converted that .pdf into a “Word” document so that it could be edited, which Gates sent back to Manafort. Manafort altered that “Word” document by adding more than $3.5 million in income. He then sent this falsified P&L to Gates and asked that the “Word” document be converted back to a .pdf, which Gates did and returned to Manafort. Manafort then sent the falsified 2016 DMI P&L .pdf to Lender D.”
Kansas Secretary of State, Kris Kobach, has built his reputation on ferreting out fraud at the polls and toughening voter ID laws. The enhanced voter ID laws that Kobach promotes as the solution to voter fraud deny new Kansans the right to vote unless they can produce citizenship documents. The ACLU, describing the ID requirement as arbitrary and discriminatory, brought an action against the law that Kobach is now fighting in court. In the resulting trial, Kobach filed in federal court a document in which he forgot to delete his office’s editorial note (saying that a particular argument was “PROBABLY NOT WORTH ARGUING”) and failed to provide a citation for a separate argument. (See p. 62 of the document here.) A revised version of the document was subsequently submitted but not before several news outlets picked up the story of his blunder. The key takeaway here? Be sure to review your work carefully before filing it in court. If you need to inspect your document before sharing it with another party, use the Microsoft Word Document Inspector, which allows you to strip your documents of any hidden metadata.
Following the tragic shooting at Marjory Stoneman Douglas High School in Broward County, Florida on February 14, 2018, the Broward public school system commissioned a report to investigate the therapeutic services provided by the school district for the shooter, Nikolas Cruz. Broward County Circuit Judge Elizabeth Scherer ordered that the report be released to the public. To protect the shooter’s privacy rights, nearly two-thirds of the content was to be redacted. However, the district failed to use a proper redaction method, allowing a more savvy user to cut and paste the text into another document. The “redacted” text was made visible, revealing a detailed account of the actions taken by the school district to provide services for Nikolas Cruz. Specific information about what emerged from the report is available here. Using proper redaction software such as Adobe Pro or Nitro or any number of other redaction programs is a more effective and reliable way to ensure that the sensitive data contained in your documents is protected.
These are just a few examples of how technology errors can have serious repercussions. Visit the blog again tomorrow for an additional tech flub, again committed by Paul Manafort, that illustrates the importance of protecting the confidential data you store and share on the cloud.
Technology has permeated the legal practice in a myriad of ways, but the need to find and understand tech standards takes on added importance in the legal community when those standards are incorporated into court rules. Once a tech skill becomes a rule, lawyers who ignore it may not simply be risking inefficiency or losing a client's business, they may be risking their ability to practice (see, e.g., Okla. Bar Ass'n v. Oliver, 369 P.3d 1074 (Okla. 2016)). For that reason, Texas attorneys may want to familiarize themselves with the Supreme Court of Texas Judicial Committee on Information Technology Standards (JCIT Tech Standards).
As a case in point, take a look at the reference to the JCIT Tech Standards incorporated into Texas Rules of Civil Procedure Rule 21(f)(8) by administrative order of the Supreme Court of Texas (Misc. Docket No. 13-9165 pdf). Subparagraph (D) provides that "[a] electronically filed document must:"
otherwise comply with the Technology Standards set by the Judicial Committee on Information Technology and approved by the Supreme Court.
Drilling down into the JCIT Tech Standards, one finds specific requirements from the type of software used to create PDFs to the applicable ISO compliance standard for efiled documents. Regarding requirements for scanned PDF documents, §3.1(C) provides:
Prior to being filed electronically, a scanned document must have a resolution of 300 DPI.
Incorporation of these standards into the Rules of Civil Procedure strongly suggests that legal tech competency has moved from recommended to required.
Where can attorneys turn to keep up with emerging tech competencies? Your local law library can help. Public and academic law libraries can assist with research into the rules governing required tech skills. Many also collect resources covering specific software used in the legal profession, like the resources in our Legal Tech Collection that include ABA publications on Adobe Acrobat, MS Word, and more. Some law libraries even offer legal tech classes. The Harris County Law Library's Legal Tech Institute offers free CLE on a variety of topics, including MS Word for Legal Work in which attorneys can learn how to create the type of PDF referenced in the JCIT Tech Standards. Visit our website and keep following our Tech Tuesday posts to learn more!
Law librarians are no strangers to fashion. Anyone familiar with our cardigan game knows what I’m talking about. Increasingly, other lawyers are catching up, with fashion law rapidly expanding as both a practice area and a field of general interest.
What even is fashion law? It covers everything from intellectual property, to business, to international human rights.
Traditionally, fashion has enjoyed only limited intellectual property protection in the United States, where clothing design has been considered such an essential (or maybe inessential, depending who you ask) part of culture development that copycats have been encouraged by the market and the lack of legal constraints. Readers may recall the classic scene in “The Devil Wears Prada,” when Runway Magazine editor Miranda explains this phenomenon to fashion neophyte Andy, who had no understanding of the lofty origins of her "lumpy blue sweater."
A recent Supreme Court ruling, however, has shifted the conversation. In Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. ___ (2017), the Court held that graphic designs applied to useful articles can be subject to copyright, even if those designs are apparently essential to the usefulness of the article. This ruling certainly favors large shops with the resources to create novel designs, register them with the Copyright Office, and litigate against smaller operations with fewer resources. However, it also means that independent artists will now have recourse when their designs are mass produced without permission by behemoths like Walmart or Urban Outfitters.
The fashion industry is using the law to combat human rights abuses long associated with “fast fashion.” An international organization called Fashion Revolution is leading the charge to provide safe working conditions and fair wages for everyone employed by the industry, including floor shop laborers in developing nations. International scrutiny of these issues increased significantly in the wake of the November 2012 Tazreen Fashion factory fire, which killed at least 117 workers in Dhaka, Bangladesh.
Attorneys and legal professionals can now obtain specialized degrees in fashion law. The Fashion Law Institute at Fordham Law School offers both an LLM and MSL in this burgeoning space, as well as two CLE “bootcamp” events, one in New York and the other in San Francisco.
Interested to learn more? Check out The Fashion Law, which tracks legal developments in the fashion industry.
Congratulations to Saskia Mehlhorn, Director of Knowledge - US at Norton Rose Fulbright, who has been elected Vice-Chair/Chair-Elect of the Private Law Librarians & Information Professionals Special Interest Section of the American Association of Law Libraries.
In September, 2017, Saskia presented a CLE for the Law Library's Legal Tech Institute on artificial intelligence in the practice of law. Find a recording of the program on the Legal Tech Institute page today.
A recent study by the Pew Research Center suggests that 11% of Americans don't use the internet. 11%! For those of us who spend our days talking about ways to more effectively use digital resources, 11% is a staggering statistic. At the Harris County Law Library, we're on the internet every day. Pulling a case in Westlaw or Lexis requires connectivity. Assisting self-represented litigants (SRLs) access TexasLawHelp.org for forms and information does too. Access to many forms of legal information is either bolstered by internet access or, in some instances, totally dependent on it.
Legal aid organizations across the country are also on the internet every day leveraging technology to close justice gaps. In Texas, we have a variety of success stories. TexasLawHelp.org counts thousands of page hits each month and offers chat services to SRLs across the state. Houston Volunteer Lawyers and Lone Star Legal Aid share information and leverage automated intake forms on their websites. The Houston Bar Association and Texas State Law Library distribute legal information to SRLs on the most needed topics, including family and consumer law.
Can you see where this is going? What happens when our efforts to offer legal aid and share legal information are focused on a medium that the intended recipients either cannot or do not access? Diving further into the Pew report, we see the problem is exacerbated. The digital divide is concentrated in vulnerable populations that legal aid services are intended to help. Specifically,
- 35% of Seniors (65+),
- 19% of those earning less than $30k per year, and
- 35% of individuals without a high school education
do not use the internet. Building on these base statistics, if 19% of those living in poverty do not use the internet at all, how many of the remaining 81% have had the opportunity to develop the skill set to use it well?
Ok, enough doom and gloom. What do we do? Answer: remember that public law libraries are partners in access to justice. If the issue is lack of access to equipment, libraries offer public access computers. If it's digital literacy, we offer reference assistance and free learning opportunities. If information literacy is the issue, we help patrons every day wade through nonsense Google results to find authoritative resources like TexasLawHelp.org. And all of these resources are available for free to all at locations across the country.
For more information on the role of public law libraries in access to justice, take a look at the following resources:
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Happy Birthday to Albert Einstein, who was born on this day in 1879. Celebrated as a brilliant theoretical physicist and one of the greatest minds of the 20th century, Einstein's very name is synonymous with genius, but in some ways, he was just a regular guy. He enjoyed smoking his pipe, took great pleasure in riding his bicycle, and encouraged playfulness as the key to discovery and creative thought. He also placed great value in visiting the library.
Einstein claimed to possess no special talents but described himself as "passionately curious." What better way to satisfy one's curiosity than to visit the library? He once said, "The only thing that you absolutely have to know is the location of the library," a sentiment that we at Harris County Law Library share. Knowing where to access accurate, authoritative, and trustworthy sources of legal information is critical for both legal professionals and the public. Those who represent the best interests of their clients need not only information but a supportive environment in which to work, and those representing themselves need unrestricted access to unbiased sources of information to help them address their legal needs.
In the digital age, libraries have changed tremendously, evolving from the traditional institutions that Einstein would have known to vibrant, dynamic hives of activity where people from all walks of life come in search of not only information but for guidance, services, education, training, support, and community. We at Harris County Law Library take the needs of our visitors very seriously, and we continue to expand our range of offerings on an ongoing basis.
For guidance, we partner with the Houston Volunteer Lawyers to offer our pro se patrons access to attorneys at no expense (Monday - Friday, 9:00 am - 12:00 pm and 1:00 pm - 5:00 pm). Our reference staff provide services and support 11 hours a day, 5 days a week by assisting self-represented litigants in finding forms for a variety of legal needs. Our Legal Tech Institute, an ongoing series of free learning opportunities for attorneys and the public, provides legal tech education and skills training in both face-to-face and virtual settings.
We aim to cultivate a sense of community for our regular visitors, both attorneys and the public, and to create an environment conducive to productivity, exploration, problem-solving, and achieving justice. Knowing where to find this kind of environment and the resources it offers is a must. We like to think that Einstein would agree.